The High Court ordered the immediate release of a man held at Cloverhill Prison after ruling that his continued detention pending deportation was unlawful. Mr Justice Hogan found that the arrest was lawful, but said there was no real prospect of deportation within the roughly six weeks remaining in the statutory detention period.
The Article 40.4.2 inquiry concerned Francis David Om, who had claimed Liberian nationality since arriving in Ireland and seeking asylum in July 2003. His asylum application was rejected in 2004 on credibility grounds, and the Refugee Appeals Tribunal reached a similar view in 2007. Subsidiary protection was refused in 2009. A deportation order made that year, and a later request to revoke it, were also refused. Those decisions proceeded on the assumption that Mr Om was Liberian.
On 18 July 2011, a Liberian Embassy official interviewed Mr Om at the Garda National Immigration Bureau in Dublin. The official concluded that he was not Liberian and the embassy would not issue him a travel document. Gardaí put that assessment to Mr Om; he continued to claim Liberian nationality. He was arrested that afternoon on suspicion of trying to avoid removal and detained at Cloverhill Prison.
The court held that Gardaí could reasonably rely on the embassy official’s assessment after giving Mr Om an opportunity to respond. It therefore found the arrest under section 5(1)(d) of the Immigration Act 1999 lawful. The judgment also noted that the questions used to assess his knowledge of Liberia could be difficult to interpret, and that country-of-origin information in evidence tended to support his account about Liberian identity cards.
The court treated the legality of continued detention as a separate question. Detention under the Act had to serve the purpose of carrying out deportation, and there had to be a real prospect it could happen within the statutory period. The existing deportation order assumed Liberia was the destination. If Mr Om was from another country, his nationality and the implications for refoulement would need further consideration. Evidence also indicated that a Nigerian Embassy interview was proposed. Identifying a destination and arranging a flight could take time.
Finding no real prospect of deportation within the remaining period, the court ruled continued detention unlawful under the principles set out in Gutrani and applied by the Supreme Court. It directed that Mr Om be released with immediate effect once the court adjourned. The judgment did not decide his nationality or cancel the deportation order.