The High Court has refused an application to release a man detained pending his removal from Ireland, finding that the evidence did not establish he had made a subsidiary protection application capable of suspending deportation.
The man brought the application under Article 40.4.2º of the Constitution. The detention followed a deportation order made in 2013. The court heard the case over two days in February 2017 and ruled on 1 March.
His solicitor told the court that the man wished to apply for subsidiary protection. On 20 February, while the man was detained at Cloverhill Prison, he signed a note stating that he wished to apply. Copies were left for prison staff and sent to the Garda National Immigration Bureau (GNIB). The evidence did not show that an application or related correspondence had reached the International Protection Office, the authority responsible for receiving applications.
The State said the man had been detained for removal under the deportation order. It also relied on a pending request to revoke that order, which had been made by another firm of solicitors. That request was based on the man’s relationship with an Irish citizen and his role in the lives of her two children. The court did not decide that revocation request in this inquiry.
The judge rejected two objections to the detention warrant. It misstated the time already spent in detention by one day, but the court treated that as a non-jurisdictional error that did not prejudice the man. The judge also found that the officer could rely on an additional ground of suspicion in the later warrant.
The court held that a written note expressing a wish to apply was not enough to show that the man was an “applicant” under the subsidiary protection regulations. The evidence did not establish that he had sent the Commissioner an application in the prescribed form or one with equivalent effect. The court therefore rejected his argument that the right to remain while an application was determined made his detention unlawful.
The judge did not decide the State’s separate arguments about the time limit for applying or whether habeas corpus was the appropriate remedy. The Article 40 release application was refused, and the court was satisfied that the detention was lawful on the evidence before it.