The High Court ordered the release of a Chinese asylum seeker from Cloverhill Prison after ruling that his breaches of immigration rules did not, by themselves, justify preventive detention on public order grounds.
In a judgment delivered on 28 November 2012, Mr Justice Hogan said the phrase “public order” in section 9(8)(a) of the Refugee Act 1996 had a narrower meaning because it appeared alongside “national security”. The power required a real threat to fundamental State interests, he said, rather than non-compliance with immigration law alone.
The applicant, Jin Liang Li, had lived in Ireland for about 13 years. It was undisputed that he had overstayed his visa and worked illegally. The judgment also records that he had told Chinese Embassy staff in 2010 that he would not return to China, which prevented the issue of fresh travel documents and frustrated an earlier deportation order. A valid Chinese passport issued in 2007 was later found, though Irish authorities had not previously known of it.
He was arrested on 20 November 2012 under the Immigration Act 1999. While arrangements were being made to remove him, he applied for asylum. He was then arrested under section 9(8)(a) of the 1996 Act and brought before the District Court, which ordered his detention until 28 November on the basis that he posed a threat to public order. The High Court said the current detention depended on that District Court order. The applicant had not been charged with or convicted of an offence.
Justice Hogan said preventive civil detention required compelling objective necessity and should remain exceptional. He considered the earlier High Court decision in Yong Dong, which had upheld detention on similar facts, but declined to follow it, finding that relevant statutory interpretation and constitutional arguments had not been addressed there.
The judge concluded that the applicant’s admitted immigration breaches did not threaten fundamental State interests and could not, on their own, establish the required public order threat. He held that the arrest and subsequent detention on that basis were unlawful and directed the applicant’s release under Article 40.4.2 of the Constitution as the court adjourned. The ruling addressed the basis for this detention; it did not determine the asylum application.