The High Court has refused an application by TM, a South African national detained in Cloverhill Prison, for release under Article 40.4 of the Constitution. Mr Justice Conleth Bradley found TM’s detention lawful for the purposes of the inquiry and refused the application.
TM’s counsel argued that the detention warrant relied on an alleged failure to leave the State within the time specified in a deportation order. The notice issued on 13 February 2024 required TM to leave within seven days. Counsel submitted that applying that deadline curtailed TM’s statutory 28-day period to challenge the deportation order by judicial review.
The judge rejected that argument in the Article 40 proceedings, finding that it conflated separate provisions of immigration law. He said the seven-day notice did not curtail the 28-day period for seeking leave to apply for judicial review. The judgment did not decide whether a future judicial review application would require an extension of time, or whether such an extension should be granted. That question was left to the court hearing those proceedings.
TM also contended that he had not received the report addressing whether his deportation would breach the prohibition on refoulement. The judge found, for the purposes of this detention inquiry, that the deportation notice, order and section 50 report had been sent by registered post to TM at an address in Cloghran, County Dublin, and were returned to the Department of Justice. Applying the statutory service provisions, he deemed service good. The judgment said it was possible that service was deemed to have occurred on 16 February 2024.
The court’s inquiry concerned whether TM was lawfully detained; it did not determine the merits of the separate judicial review challenge to the deportation order or the section 50 decision. The judge concluded that TM was lawfully detained and refused his application for release from Cloverhill Prison.