The High Court ordered Tareeq Omar’s release from Cloverhill Prison after finding that Gardaí unlawfully restrained him and his family at their Limerick home while carrying out a deportation operation.
In a judgment delivered on 17 December 2013, Mr Justice Hogan ruled on an application under Article 40.4.2 of the Constitution challenging the legality of Mr Omar’s detention. He found that the arrest formally made at Dublin Airport was part of a process that had begun with unlawful restraint at the family home. Because the later arrest was not independent of that earlier custody, Mr Omar’s detention was unlawful.
The family were subject to deportation orders made in September 2013 and had been told to leave Ireland by 12 October. The judge found that Mr Omar could have been arrested under immigration law for failing to comply with the orders. However, Gardaí had no power under that law to enter a dwelling to make such an arrest.
Four Garda National Immigration Bureau officers arrived at the family’s home shortly after 11pm on 7 November. Mr Omar and his wife, Sheilah, initially invited them inside. The judge accepted evidence that the officers then directed the couple to pack and conveyed that they had no option but to accompany Gardaí to Dublin Airport. A female officer went into the bedroom where their seven-year-old son was sleeping and instructed his mother when to wake him.
The family travelled in Garda cars to the airport, arriving at about 2.30am. The judge found they were taken to a locked detention room. Mr Omar was formally arrested at about 5.15am under a provision allowing arrest where a person is suspected of intending to avoid removal, after saying he would accept deportation to Kenya but did not want to return to Tanzania. His wife and son were taken to Balseskin Accommodation Centre.
Justice Hogan found there had been no genuine consent to the family’s restraint and transport. Though their initial invitation allowed Gardaí into the home, he ruled that officers exceeded its limits by using their presence to impose de facto arrest. He also found the entry into the child’s bedroom and directions to his mother breached constitutional protections for the home and personal liberty.
The judge said the officers had acted courteously and without malice, believing they had authority to proceed. That did not make their actions lawful. As Mr Omar’s detention depended on the validity of the airport arrest, the court directed his release under Article 40.4.2.