The High Court ordered the release of a Nigerian national from Wheatfield Prison, finding that a deportation order made before his marriage to a Czech national could no longer be used to detain him.
Mr Justice Hogan delivered the judgment on 29 April 2014 after an inquiry under Article 40.4.2 of the Constitution into the legality of the applicant’s detention. The court held that, following his marriage to an EU citizen who had exercised free movement rights in Ireland, the applicant could be physically removed only under the procedures in the European Communities (Free Movement of Persons) Regulations 2006 and the relevant EU directive.
The applicant had been refused refugee status after applying in 2009. A deportation order was made against him in October 2010 and had not been challenged. He married the Czech national in February 2011 and applied for a residence card the following month. The Department refused the application, finding that his wife was not exercising EU treaty rights through study at the relevant time. Reviews upheld that refusal. The judge accepted the residence-card refusal as valid and did not decide that the applicant had a right to reside in Ireland.
The applicant was arrested on 2 April 2014 when he reported to the Garda National Immigration Bureau. The stated basis was that he had failed to comply with the deportation order. The court’s question was whether that order remained effective for his removal after his marriage, given the protections and procedures applying to spouses of EU citizens under the 2006 Regulations.
Justice Hogan concluded that the Regulations applied to the applicant because he had married the EU citizen while she was exercising free movement rights in Ireland. He said that remained so despite the later refusal of a residence card and the breakdown of the marriage. The refusal could be relevant to a future assessment of whether removal was justified on public-policy grounds, but that issue was not before the court.
The judge distinguished the case from the Supreme Court’s decision in Rachki v Governor of Cloverhill Prison, concluding that Rachki had addressed an indirect challenge to a residence-card refusal and had not determined the removal-procedure question raised here. He found that the earlier deportation order did not meet the distinct requirements for removing someone covered by the EU rules. Because the applicant’s detention was therefore not in accordance with law, the court ordered his release under Article 40.4.2. The judgment did not grant him a residence card or determine any future removal decision.