The High Court ordered the release of a man detained at Cloverhill Prison after finding that the State had not provided sufficient evidence of a continuing settled intention to deport him following his application to re-enter the asylum process.
Mr Justice Richard Humphreys delivered written reasons on 21 October 2015. The release order had been made on 14 October, under Article 40.4 of the Constitution, in the man’s third application challenging his detention. The court’s decision concerned whether his detention was lawful after he applied on 6 October for consent to make a second asylum application under section 17(7) of the Refugee Act 1996.
The judgment says the man, a Pakistani national, arrived in Ireland in 2005 and married an EU national the following year. His spouse left after marital difficulties. His asylum claim was formally refused in December 2014, and temporary permission to remain expired around 9 September 2015. His application for residence under the EU free movement regulations was refused on 4 September. He was arrested on 25 September while returning from Northern Ireland and detained first at Dundalk Garda Station, then at Cloverhill.
A second Article 40 application was withdrawn on 2 October after the Minister undertook to consider whether removal would give rise to refoulement. The man’s third application, brought on 9 October, argued that his request for consent to reapply for asylum undermined the continuing intention to deport required to justify detention.
The governor’s counsel handed in an unsigned decision dated 14 October that purported to refuse the request. Justice Humphreys said he had not seen a final decision and could not give the unsigned document evidential status. In any event, he said, a later refusal could not cure any earlier defect in detention.
The judge held that detention under section 5(5) of the Immigration Act 2003 must be for deportation and requires a settled intention to deport, which the State must establish. Although such an intention may ordinarily be inferred from a deportation or removal order, the removal order referred to in the evidence was not produced. The State did not rely on the order alone.
The court did not decide whether an application to re-enter the asylum process legally prevents or suspends deportation. It found that the application complicated removal because of a possible suspensive effect under an EU directive. On the affidavit evidence, the judge was not prepared to infer a settled intention to deport immediately after the application. He said positive evidence about the state of mind of whoever would carry out the removal was needed, and found none in the State’s affidavits.
The ruling resolved the lawfulness of detention on the evidence before the court. Questions about the directive’s effect, reassessment of detention, proportionality and ongoing review were left for a future case.