The High Court has refused an application by a Nigerian man for an order under Article 40 of the Constitution, finding his detention pending deportation was lawful. O’Sullivan J delivered judgment on 26 October 2005.
The applicant had arrived in Ireland in 2000 and exhausted the asylum process without success. The Minister for Justice refused his applications to remain based on his parentage of an Irish-born child in January 2004 and April 2005. The court noted that the first refusal treated him as the child’s father despite difficulties proving paternity. The second decision cited a lack of evidence of identification, continued residence since the child’s birth and his role in the child’s upbringing.
After the second refusal, the applicant sought reconsideration and an undertaking that he would not be deported. He received no undertaking. On 18 October 2005, when told he would be removed that evening, he said he was “going nowhere”. Detective Sergeant John Stratford testified that the applicant then attacked and bit officers in the vehicle taking him towards the airport, and kicked the driver, causing him momentarily to lose control. The applicant’s lawyers began judicial review proceedings before his arrest and obtained an interim injunction preventing deportation until 11am on 21 October.
The applicant was taken to Cloverhill Prison. On 19 October, a conditional order under Article 40 was made, and the court heard the application the following day and then at a full hearing on 21 October. The challenge concerned the lawfulness of his arrest and detention.
O’Sullivan J rejected the argument that the pending reconsideration request meant the deportation decision was not final. He also held that starting judicial review proceedings, and the interim injunction, did not by themselves extinguish the Minister’s intention to deport. The injunction preserved the position temporarily; it did not require the applicant’s release. The judge distinguished the circumstances in *Ojo* and *Adebayo*, and accepted the officer had grounds, based on the applicant’s words and conduct, to conclude he intended to avoid deportation.
The court held the detention for the purpose of deportation was lawful and refused the Article 40 application. The ruling addressed the legality of detention at that stage; it did not determine the pending judicial review challenge to the deportation decision.