The Supreme Court said an Algerian national was unlawfully detained after his immigration custody exceeded the eight-week aggregate limit, and gave reasons for its earlier order directing his release.
The Court had ordered his release on 27 April 2012 under Article 40.4 of the Constitution. In a judgment delivered on 10 May, Mr Justice Fennelly said the detention period ran from 8 February, when the man was first detained under section 5(1) of the Immigration Act 1999. A new detention notice issued on 29 March, when he was transferred to Wheatfield Prison, did not begin a fresh eight-week period.
The man had been subject to a deportation order made in 2009. He had not complied with requirements to leave the State and report to immigration authorities. On 8 February 2012, a Garda arrested him and brought him to Cloverhill Prison. He later challenged his detention and sought to prevent his removal; the High Court refused an injunction.
On 29 March, Gardaí attempted to take him to Dublin Airport for removal to Algeria via London Gatwick. According to the judgment, he physically resisted, threatened self-harm and attempted to injure himself. A Garda concluded that removal could not proceed as planned and arrested him again at the airport, issuing a new detention notice for Wheatfield Prison. The new notice relied on the same grounds as the first: failure to comply with the deportation order and notice requirements, and an intention to avoid removal.
The High Court had found the detention lawful, reasoning that fresh breaches could support a new arrest and detention notice. The Supreme Court rejected that approach in this case. Section 5(6)(a) provides that detention under the section must not exceed eight weeks “in aggregate”. Fennelly said that wording bars both a single detention longer than eight weeks and successive detention periods that together exceed the limit. By 11 April, when the High Court held its Article 40 inquiry, more than eight weeks had elapsed from the initial detention.
The Court also rejected the argument that the notice had to state when the eight-week period expired. That limit, it said, is set by general law and need not be specified in the detention notice. The judgment acknowledged the practical difficulties Garda officers faced in carrying out deportations, but said the statutory limit was unqualified and could not be extended by judicial interpretation. It said any solution to those practical problems would require legislation.