The High Court ordered the release of a woman held at Mountjoy Women’s Prison after finding that the transfer of her custody to the prison governor did not comply with a required written-notice procedure.
The judgment, delivered by Mr Justice Edwards on 23 June 2011, gives reasons for a decision made the previous day. The court had opened an inquiry under Article 40.4.2° of the Constitution after the applicant complained that her detention was unlawful. It concluded she was unlawfully detained and directed her release.
The woman had been subject to a deportation order made in May 2006 after her unsuccessful asylum application and a refusal of permission to remain. She did not attend a Garda National Immigration Bureau appointment in July 2006 to facilitate arrangements for her removal, and was treated as an “evader”. The judgment says she later lived in Cashel and then returned to Dublin, where she took up residence at an address on Meath Street without notifying the authorities of the address changes.
She was arrested on 13 June 2011 and taken to the Dóchas Centre, Mountjoy Women’s Prison, pending arrangements for her removal from the State. The document supplied to the prison governor said she was being detained under section 5 of the Immigration Act 1999 because she intended to avoid removal. The respondent accepted that the governor had not been told in writing that she had been arrested.
Regulation 7 of the 2005 Deportation Regulations requires an arresting immigration officer or Garda member proposing detention in a prescribed place to inform its governor in writing of the arrest and direct that the person be detained until further notice. The respondent argued that the detention notification was sufficient, and that any failure to specify the arrest was only a procedural irregularity.
The court rejected that argument. It held that written notice of the arrest was a necessary precondition to the lawful transfer of custody to the governor, in part because the governor needed to be able to establish how much of the statutory eight-week aggregate detention limit had already been used. As the required notice had not been given, the purported transfer of custody was unlawful and the applicant was entitled to release.
The court did not decide the applicant’s other challenges to her detention, saying it was unnecessary to do so once one ground had been upheld.