The High Court ordered the release of an asylum applicant detained at Cloverhill Prison, finding his detention unlawful after an Article 40.4 inquiry. Mr Justice John MacMenamin gave his reasons on 14 April 2005, after directing the applicant’s release at the end of the hearing.
The applicant had been arrested at Dublin Airport on 25 February 2005 and detained under section 9(8) of the Refugee Act 1996, as amended. The following day, a District Court judge committed him for up to 21 days under section 9(10), on grounds that he had not made reasonable efforts to establish his identity and was in possession of forged identity documents.
At the District Court hearing, a garda testified that the applicant had arrived from Barcelona with an Iranian passport that he said was forged, and had told gardaí he had an Afghan identity card. The applicant’s solicitor argued that the evidence did not address whether he had reasonable cause for possessing forged documents or what efforts he had made to establish his identity. She also said the applicant had called family in Afghanistan to ask them to send identification documents; the garda could not confirm the purpose of the call.
The High Court heard that a written “information” signed by the garda and a memorandum of interview had also been before the District Court judge. The applicant and his legal advisers had not been given copies or told of their existence before the detention hearing. The High Court held that the undisclosed material was relevant and might have helped or harmed the applicant. Its presence without notice deprived him of an opportunity to address or challenge it, making the District Court proceedings “in essence unfair”.
The judge also found insufficient evidence that the District Court judge had considered the evidential basis for detention and had himself been satisfied that a statutory ground applied. The detention warrant had been prepared by the garda before the hearing, and the High Court found no clear indication of the District Court judge’s precise findings or the basis for them. It also found no sufficient evidence to support the reported descriptions of the applicant as “a liar” and “a fraud”.
The respondent argued that judicial review, rather than habeas corpus, was appropriate. The High Court rejected that submission, relying on a recent Supreme Court decision. It did not decide the disputed interpretation of section 9(8)(c) or (f), stating that the detention was unlawful on narrower procedural grounds. The court granted the relief claimed, having already directed the applicant’s release.