Preliminary Steps
Cases
Ahmad Hussein Fakih, Ali Ismail Hamdan and Mohammed Anis Slim v Minister for Justice
1992 No. 14 JR
High Court
6 March 1992
[1993] I.L.R.M. 274
(O’Hanlon J)
O’HANLON J
delivered his judgment on 6 March 1992 saying: The applicants in these proceedings for judicial review are claiming orders of certiorari to quash a decision made in relation to each of the applicants on 10 January 1992 whereby each of them was refused leave to land in the State in reliance on article 5(2)(j) of the Aliens Order 1946 (as inserted by article 3 of the Aliens (Amendment) Order 1975).
They also challenge the validity of their detention under article 5(4) of the Aliens Order 1946 (as inserted by article 3 of the Aliens (Amendment) Order 1975), and they claim to be entitled to have their application for refugee status (as defined in accordance with the United Nations Convention on the Status of Refugees 1951, as amended by the Protocol on the Status of Refugees of 1967) considered and determined by the respondent.
They rely, in particular, on an agreement on procedures agreed between the then Minister for Justice and the United Nations High Commissioner for Refugees (UNHCR) as set out in a letter dated 13 December 1985 from Cathal Crowley, Assistant Secretary of the Department of Justice to Mr R. Von Arnim, UNHCR representative in London, which followed upon a meeting which took place between Mr von Arnim and the then Minister for Justice on 5 February 1985.
The respondent in the notice of opposition accepts that Ireland is a party to the convention and protocol referred to by the applicants, and also acknowledges the existence of an agreement in the terms of the letter of 13 December 1985 already referred to, but in relation to each of these instruments and documents the respondent says that it is an international agreement which does not form part of the domestic law of the State and cannot be relied upon to establish a cause of action in favour of a private individual in the courts of the State.
With regard to the letter of 13 December 1985, it is further pleaded that it does not oblige Ireland to admit any applicant for asylum to Ireland or to consider any application made. It is also pleaded that the applicants were, and each of them was, bound to apply for asylum in the first safe country where it was possible for them to do so, and that having failed to do so there is no obligation on Ireland to consider an application for refugee status. Finally, it is asserted that the applicants have disqualified themselves from obtaining the relief claimed or any part thereof by reason of dishonest and fraudulent conduct on their part in securing entry to the State and otherwise.
The facts
The applicants are of Lebanese origin. They left the Lebanon by air on 26 December 1991 en route to Dublin. There was a 40-minute stopover in Zurich for refuelling, during which it was permissible for them to leave the plane. There was a further stopover in Copenhagen, lasting 15 hours, which at one stage they said they spent in the airport, at another stage claiming that they had stayed in an airport hotel. They arrived in Manchester at 11 am on 27 December. The plane was 20 minutes on the ground, and they were again free to disembark if they chose to do so. The flight then continued to Dublin, where they landed and presented for inspection by the immigration official, Lebanese passports and documentation to show that they only sought temporary admission to Ireland as seamen for the purpose of joining their ship, ‘The Star of Kuwait’, which was scheduled to arrive in Dublin port around the same time (or so they claimed).
Having been allowed pass through Dublin Airport on the faith of these representations and in reliance on the shipping documents which were produced, they proceeded to the Shelbourne Hotel, and telephoned the brother of the first-named applicant, who was living in London. He came over to Ireland to meet them, and on the following day, 28 December, all four embarked by sea to travel to the United Kingdom together. They were interviewed by immigration officials in Holyhead and having spent some days in detention in Holyhead, Liverpool and Manchester, they were refused leave to enter and were returned to Ireland by sea on 9 January 1992. None of the applicants had the necessary visa for entry to the United Kingdom, and applications by them for asylum were rejected on the basis that they had come from Ireland, having spent one day in that country, and not directly from the Lebanon.
On their return to Ireland, the applicants no longer contended that they were able to comply with any of the normal conditions of entry and asked instead that they be allowed apply for asylum in Ireland on the basis that they had refugee status and feared for their lives were they to be returned to the Lebanon.
The minister refused to consider any such application and proposed instead to return the applicants to one of the countries where they had already landed while en route to Ireland (Switzerland, Denmark, the United Kingdom) in reliance on what is claimed as a rule of international law that a person seeking asylum should apply in the first safe country in which he has an opportunity to do so, having successfully departed from the country where he claims his life was in danger.
Each of the applicants was served with a document signed by Detective Garda Merrigan, immigration officer, in the following terms:
This is to inform you that you are being refused leave to land in accordance with the provisions of the Aliens Act 1935 and the Aliens Orders 1946 and 1975. You are being refused leave to land because I am satisfied that you intend to travel (whether immediately or not) to Great Britain or Northern Ireland and the officer is satisfied that the alien would not qualify for admission to Great Britain or Northern Ireland if he arrived there from a place other than the State.
Prior to their arrival back in Ireland, having been refused entry to the United Kingdom, the applicants had consulted a firm of English solicitors, who, in turn, contacted the firm of solicitors in Ireland who now represent the applicants, to notify them that the applicants were due to arrive in Dun Laoghaire on the ferry from Holyhead, and wished to apply for refugee status in Ireland.
The applicants’ Irish solicitors then contacted the aliens section of the Department of Justice and requested that the applicants should not be removed from the Irish jurisdiction pending adjudication of their claim for refugee status in accordance with the agreement on procedures between the Minister for Justice and UNHCR dated 13 December 1985.
On arrival in Dun Laoghaire, the applicants were served with the document already referred to, refusing them leave to land in Ireland in accordance with the provisions of the Aliens Act 1935. Their solicitor was informed on enquiry from the Department of Justice that the minister did not accept that he had to determine their claims for refugee status, having regard to the fact that they had been in other ‘safe countries’ on their way to Ireland, and had obtained leave to land in Ireland on foot of false documents.
In these circumstances the present proceedings for relief by way of judicial review were initiated on behalf of the applicants, to prevent any steps being taken to remove them from the jurisdiction until their application for refugee status was fully considered and determined in the manner envisaged by the terms of the letter of 13 December 1985, written on behalf of the minister to UNHCR.
A further ground was put forward for contesting the procedure being adopted by the minister. It is submitted that the minister was wrong in invoking the provisions of the amended article 5 of the Aliens Order 1946, as substituted by article 3 of the Aliens (Amendment) Order 1975, which deals with the procedure which should be followed in relation to ‘an alien coming from a place outside the State other than Great Britain or Northern Ireland’.
As the applicants are being detained in accordance with the procedure laid down in that article, it is submitted that their present detention is not in accordance with law, by reason of the fact that when arrested they had just landed in Ireland on the ferry which brought them from Great Britain.
The law
I propose to deal first with the procedural point last referred to. Should the applicants be regarded as ‘aliens arriving in the State from Great Britain or Northern Ireland’, and accordingly outside the scope of article 5 of the Aliens Order 1946, as amended by the Aliens (Amendment) Order 1975?
In my opinion, no. The applicants set out from Lebanon to Ireland. Having arrived in Ireland they made an unsuccessful attempt to gain entry to the United Kingdom but were refused entry and were returned to Ireland. The fact that they succeeded in setting foot in the United Kingdom before being refused entry is not, in my opinion, sufficient to convert their status into the status of aliens arriving in this State from Great Britain or Northern Ireland. I consider that when they re-appeared in Dun Laoghaire on the ferry from Holyhead they were still in the course of their peregrinations from Lebanon to Ireland, with brief interruptions at Zurich, Copenhagen, Manchester, and again while unsuccessfully attempting to gain entry to the United Kingdom.
I accept that this involves giving a special meaning to the phrase ‘coming from a place outside the State other than Great Britain or Northern Ireland’, but there is a precedent for construing the phraseology of the Aliens Act 1935, (under which the relevant orders were made) according to the purport and effect of the Act. Martin Maguire J (whose decision was later upheld by the Supreme Court) decided in the case of State (Goertz) v Minister for Justice [1948] IR 45 that the words ‘ordinarily resident in Ireland’ as used in the Act, should be given a special meaning in the context of the Act. He said (at p. 49):
In order to interpret the expression, ‘ordinarily resident in Ireland’, it is necessary to consider the purport and effect of the Aliens Act 1935. This Act was clearly intended to provide for the control of aliens within the State and to provide for their entry to and exit from the State. ‘Residence’ is not defined in the Act. In my opinion it must be given its ordinary meaning within the framework of the Act. ‘Residence’ is a word capable of bearing several meanings. Whenever a word, so capable, is found in an Act of Parliament, we look at the object of the legislature in order to ascertain what meaning the word, when so used, was intended to bear’: perErle J in Blackwell v England.
On this basis I hold that, in the special and peculiar circumstances of the present case, the immigration officials were entitled to deal with the applicants as aliens coming from a place outside the State other than Great Britain or Northern Ireland, on their arrival by ferry from Holyhead to Dun Laoghaire.
The applicants contend, however, that on arrival in f Ireland on that occasion they were entitled to have their application for refugee status determined in accordance with the procedures referred to in the letter written on behalf of the minister to Mr von Arnim on 13 December 1985.
The text of that letter reads as follows:
13 December 1985.
Dear Mr von Arnim,
I am directed by the Minister for Justice to refer to your meeting with him on 5 February 1985, following which UNHCR made a proposal for a procedure for the determination of refugee status in Ireland.
Your submission has been examined. As a preliminary matter I can confirm that at present the very limited number of asylum applications received in this country does not warrant legislative action incorporating the procedures suggested in your letter of 24 April 1985. However, I am glad to be able to inform you that these procedures are in themselves quite acceptable. Accordingly, arrangements have been made for applications for refugee status and asylum to be considered in Ireland according to the following procedure which the department believes to be in line with Ireland’s international obligations and humanitarian traditions:
1. Application for refugee status and asylum may be made by the individual to the immigration officer on arrival or directly to the Department of Justice if the individual is already in the country.
2. Immigration officers have been provided with written guidelines which indicate clearly that a person should not be returned to a country to which he is unable or unwilling to go owing to a well-founded fear of persecution for reasons of race, religion, nationality, membership of a social group or political opinion, nor should he be returned to a country where his personal safety might be seriously threatened as a result of the political situation prevailing there.
3. Whenever it appears to an immigration officer as a result of a claim or information given by an individual that he might be an asylum-seeker, his case will be referred immediately to the Department of Justice, Dublin, for decision. Immigration officers have been instructed that it is not necessary for an individual to use the term ‘refugee’ or ‘asylum’ in order to be an asylum-seeker. Whether or not an individual is an asylum-seeker is a matter of fact to be decided in the light of all circumstances of the particular case as well as guidelines which may be issued from time to time by the department. In case of doubt, the immigration officer shall refer to the Department of Justice.
4. Such an individual will not be refused entry or removed until he has been given an opportunity to present his case fully, his application has been properly examined, and a decision reached on it.
5. The asylum application will be examined by the department in accordance with the 1951 Convention and 1967 Protocol on the Status of Refugees. This shall not preclude the taking into account of humanitarian considerations which might justify the grant of leave to remain in the State.
6. The applicant will be given the necessary facilities for submitting his case to the department. If he is not proficient in English, the services of a competent interpreter will be made available when he is interviewed. He will be informed of the procedure to be followed, and will be given the opportunity, of which he will be informed, to contact the UNHCR representative or a local representative of his choice. An applicant will be given this information in a language which he understands.
7. All applicants will be interviewed in person. Interviews will be conducted, as far as possible, by officials of the department who understand asylum procedures and the application of refugee criteria, and are informed on human rights situations in the countries of origin. Where interviews cannot be undertaken by the department, for example, because the asylum-seeker is outside Dublin, adequate guidance will be provided by the department to the local immigration officials to ensure that all relevant information has been obtained and forwarded to the department.
8. In line with the supervisory role of UNHCR under the 1951 UN Convention and the 1967 Protocol on the Status of Refugees, the department may seek the views of UNHCR on any case prior to reaching a decision or the UNHCR may make representations on the situation of a specific individual case or group of asylum-seekers.
9. In any case where refusal of the application is proposed or an immediate positive decision is not possible, the Department of Justice will consult with the UNHCR representative accredited to the Republic of Ireland, before reaching a final decision and before taking steps to remove the applicant from Ireland, provided that the representative is available at the time.
10. If the applicant is recognised as a refugee, he will be informed accordingly and issued in due course with documentation certifying his refugee status and with a travel document if he needs one. If the applicant is not recognised, he will be informed, in writing, of the negative decision and the reasons for refusal.
The procedure outlined above does not envisage a formal right of appeal as suggested in your proposal, but there is an element of appeal inherent in the procedure in view of the number of agencies brought into the examination, and the present practice by which each application is submitted to the minister personally.
When the arrangements have been in practice for some time the procedure can be reviewed in the light of the experience gained.
Yours sincerely,
Cathal Crowley,
Assistant Secretary
Mr R. von Arnim,
Representative,
UNHCR
36 Westminster Palace Gardens,
London SWIP IRR,
England.
It is accepted by the applicants that neither the 1951 Convention nor the 1967 Protocol on the Status of Refugees forms part of the domestic law of the State, notwithstanding that they have been adopted by the State as part of our obligations under international law. It has been accepted in a number of cases that such international agreements, unless incorporated into our domestic law by legislation, cannot be given effect to in any case brought forward in the domestic forum. (See In re Ó Laighleis [1960] IR 93; Norris v Attorney General [1984] IR 36).
However, reliance is placed on the contents of the letter emanating from the department on 13 December 1985 as giving rise to a legitimate expectation on the part of all persons to whom its contents might be regarded as applying, that the procedures therein set forth would be followed in examining their cases, and that the intervention of the High Court may be sought to restrain any departure from those agreed procedures.
The most persuasive authority in support of that proposition must be the decision of the Privy Council in the case of Attorney General of Hong Kong v Ng Yuen Shiu [1983] 2 AC 629, where an announcement of intention of an even more informal nature was held to give rise to certain rights in favour of illegal immigrants — not as to the rules of law to be applied in relation to their repatriation, but solely as to the procedure to be adopted in dealing with their several cases.
Following an announcement by the Government of Hong Kong that a new and stricter policy was to be adopted in relation to the repatriation of illegal immigrants, and the issuing of an amending ordinance for that purpose, a group of immigrants assembled outside Government House and submitted a petition to the governor. A senior immigration official then read out to them a series of questions and answers which had been prepared in the office of the Secretary for Security, dealing with the position of such persons. One of the questions, with its answer, was:
Q. Will we be given identity cards?
A. Those illegal immigrants from Macau will be treated in accordance with procedures for illegal immigrants from anywhere other than China. They will be interviewed in due course. No guarantee can be given that you may not subsequently be removed. Each case will be treated on its merits.
The applicant in that case was not present outside Government House and did not hear the announcement and the questions and answers, but saw a television programme about the subject some days later. He was subsequently detained and a removal order was made against him. He was interviewed by an immigration officer before being taken into custody. His challenge to the validity of the removal order was based on the allegation that he had not been given a fair hearing on the merits of his case and had been prevented from putting all the facts of his case before the Director of Immigration. The following passage appears in the judgment of the Privy Council (delivered by Lord Fraser of Tullybelton) at p. 636 of the report:
The narrower proposition for which the applicant contended was that a person is entitled to a fair hearing before a decision adversely affecting his interests is made by a public official or body, if he has a ‘legitimate expectation’ of being accorded such a hearing. The phrase ‘legitimate expectation’ in this context originated in the judgment of Lord Denning MR in Schmidt v Secretary of State for Home Affairs [1969] 2 Ch 149, 170. It is [in] many ways an apt one to express the underlying principle, though it is somewhat lacking in precision. In Salemi v MacKellar (No. 2) [1977] 137 CLR 396, 404, Barwick CJ construed the word ‘legitimate’ in that phrase as expressing the concept of ‘entitlement or recognition by law’. So understood the expression (as Barwick CJ rightly observed) ‘adds little, if anything to the concept of a right.’ With great respect to Barwick CJ, their Lordships consider that the word ‘legitimate’ in that expression falls to be read as meaning ‘reasonable’. Accordingly ‘legitimate expectations’ in this context are capable of including expectations which go beyond enforceable legal rights, provided they have some reasonable basis: see R. v Criminal Injuries Compensation Board, ex parte Lain [1967] 2 QB 864. So it was held in R. v Board of Visitors of Hull Prison, ex parte St Germain (No. 2) [1979] 1 WLR 1041 that a prisoner is entitled to challenge, by judicial review, a decision by a prison board of visitors, awarding him loss of remission of sentence, although he has no legal right to remission, but only a reasonable expectation of receiving it.
Lord Fraser also referred to the House of Lords decision in O’Reilly v Mackman [1983] 2 AC 237, approving the decision in the Hull Prison case, and to the following passage in the speech of Lord Diplock in that case with which the other Law Lords concurred:
It is not, and it could not be, contended that the decision of the board awarding him forfeiture of remission had infringed or threatened to infringe any right of the appellant derived from private law, whether a common law right or one created by a statute. Under the prison rules remission of sentence is not a matter of right but of indulgence. So far as private law is concerned all that each appellant had was a legitimate expectation, based upon his knowledge of what is the general practice, that he would be granted the maximum remission, permitted by rule 5 (2) of the prison rules, of one-third of his sentence if by that time no disciplinary award of forfeiture of remission had been made against him. So the second thing to be noted is that none of the appellants had any remedy at private law.
In public law, as distinguished from private law, however, such legitimate expectation gave to each appellant a sufficient interest to challenge the legality of the adverse disciplinary award made against him by the board on the ground that in one way or another the board in reaching its decision had acted outwith the powers conferred upon it by the legislation under which it was acting; and such grounds would include the board’s failure to observe the rules of natural justice: which means no more than to act fairly towards him in carrying out their decision-making process, and I prefer so to put it.
Lord Fraser also referred to the case of R. v Liverpool Corporation, ex parte Liverpool Taxi Fleet Operators’ Association [1972] 2 QB 299 as illustrating the principle that ‘the expectations may be based upon some statement or undertaking by, or on behalf of, the public authority which has the duty of making the decision, if the authority has, through its officers, acted in a way that would make it unfair or inconsistent with good administration for him to be denied such an inquiry’.
He concluded:
Their Lordships see no reason why the principle should not be applicable when the person who will be affected by the decision is an alien, just as much as when he is a British subject. The justification for it is primarily that, when a public authority has promised to follow a certain procedure, it is in the interest of good administration that it should act fairly and should implement its promise, so long as implementation does not interfere with its statutory duty. The principle is also justified by the further consideration that, when the promise was made, the authority must have considered that it would be assisted in discharging its duty fairly by any representations from interested parties and as a general rule that is correct.
In the opinion of their Lordships the principle that a public authority is bound by its undertakings as to the procedure it will follow, provided they do not conflict with its duty, is applicable to the undertaking given by the Government of Hong Kong to the applicant, along with other illegal immigrants from Macau, in the announcement outside the Government House on 28 October, that each case would be considered on its merits.
On this basis the Privy Council considered that an order of certiorari should lie to quash the order of removal already made but ‘entirely without prejudice to the making of a fresh removal order by the Director of Immigration after a fair inquiry has been held at which the applicant has been given an opportunity to make such representations as he may see fit as to why he should not be removed.’
The doctrine of ‘legitimate expectation’ was referred to by Finlay CJ in Webb v Ireland [1988] IR 353, at 384, as follows:
It would appear that the doctrine of ‘legitimate expectation’ sometimes described as ‘reasonable expectation’, has not in those terms been the subject matter of any decision of our courts. However, the doctrine connoted by such expressions is but an aspect of the well-recognised equitable concept of promissory estoppel (which has been frequently applied in our courts), whereby a promise or representation as to intention may in certain circumstances be held binding on the representor or promisor.
The Chief Justice referred to the application of that doctrine by Lord Denning MR in Amalgamated & Investment Property Co. v Texas Commerce International Bank [1982] QB 84, 122, and concluded:
Applying the law as there stated, which seems to me to accord with fundamental equitable principles, I am satisfied that the unqualified assurance given to the first plaintiff by the director of the National Museum that he [Mr Webb] would be honourably treated was an integral part of the transaction under which the hoard was deposited in the museum and accepted on behalf of the State, and that the State cannot now go back on the assurance. It must be given effect to in the form of a monetary award of an amount which is reasonable in the light of all the relevant circumstances.
The House of Lords in Council of Civil Service Unions v Minister for the Civil Service [1984] 3 All ER 935 reaffirmed what had been stated in the decision of the Privy Council in AG of Hong Kong v Ng Yuen Shiu regarding the application of the doctrine of legitimate expectation when it was sought to subject administrative action to control by judicial review. The following passages appear in the speeches of the Law Lords:
Lord Fraser of Tullybelton (p. 943):
But even where a person claiming some benefit or privilege has no legal right to it, as a matter of private law, he may have a legitimate expectation of receiving the benefit or privilege, and if so, the courts will protect his expectation by judicial review as a matter of public law …. Legitimate or reasonable expectation may arise either from an express promise given on behalf of a public authority or from the existence of a regular practice which the claimant can reasonably expect to continue.
Lord Diplock (p. 949):
To qualify as a subject for judicial review the decision must have consequences which affect some person … either (a) by altering rights or obligations of that person which are enforceable by or against him in private law or (b) by depriving him of some benefit or advantage which either (i) he has in the past been permitted by the decision-maker to enjoy and which he can legitimately expect to be permitted to continue to do so until there has been communicated to him some rational ground for withdrawing it on which he has been given an opportunity to comment or (ii) he has received assurance from the decision-maker that such rights will not be withdrawn without giving him first an opportunity of advancing reasons for contending that they should not be withdrawn.
Lord Roskill (p. 953)
Thus far this evolution [of the scope of judicial review] has established that executive action will be the subject of judicial review on three separate grounds. The first is where the authority concerned has been guilty of an error of law in its action, as for example purporting to exercise a power which in law it does not possess. The second is where it exercises a power in so unreasonable a manner that the exercise becomes open to review on what are called, in lawyer’s shorthand, Wednesbury principles. The third is where it has acted contrary to what are often called ‘principles of natural justice’. As to this last, the use of this phrase is no doubt hallowed by time and much judicial repetition, but it is a phrase often widely misunderstood and therefore as often misused. That phrase perhaps might now be allowed to find a permanent resting-place and be better replaced by speaking of a duty to act fairly. But that latter phrase must not in its turn be misunderstood or misused. It is not for the courts to determine whether a particular policy or particular decisions taken in fulfilment of that policy are fair. They are only concerned with the manner in which those decisions have been taken and the extent of the duty to act fairly will vary greatly from case to case ….
The particular manifestation of the duty to act fairly which is presently involved is that part of the recent evolution of our administrative law which may enable an aggrieved party to evoke judicial review if he can show that he had ‘a reasonable expectation’ of some occurrence or action preceding the decision complained of and that that ‘reasonable expectation’ was not in the event fulfilled ….
The principle may now be said to be firmly entrenched in this branch of the law. As the cases show, the principle is closely connected with ‘a right to be heard’. Such an expectation may take many forms. One may be an expectation of prior consultation. Another may be an expectation of being allowed time to make representations, especially where the aggrieved party is seeking to persuade an authority to depart from a lawfully established policy adopted in connection with the exercise of a particular power because of some suggested exceptional reasons justifying such a departure.
This decision of the House of Lords was cited with approval by Hamilton P in the case of Duggan v An Taoiseach [1989] IR 710 in which the President accepted that the doctrine of legitimate or reasonable expectation had come to be recognized by the Irish courts and went on to hold that ‘if a person establishes that he has a legitimate expectation of receiving a benefit or privilege, the courts will protect his expectation by judicial review as a matter of public law’.
Blayney J, in the case of Wiley v Revenue Commissioners [1989] IR 350, having referred to these authorities, accepted that the doctrine of legitimate expectation could be relied upon in appropriate circumstances, while finding himself unable to hold in favour of the applicant in that particular case.
I share the view expressed in the cases cited that the plea of legitimate expectation is available and can be relied upon in the categories of cases referred to in the judgments, although it may have some of the characteristics of the ‘unruly horse’ which were associated with the plea of public policy.
As the law has developed it has come to be applied in situations where the conventional plea of estoppel by conduct might not be available since the party seeking to rely on the plea of legitimate expectation may not be able to establish that he has been induced by the conduct of the other party to act to his own detriment.
Thus, in the case of Ng Yuen Shiu the applicant had not altered his position in any way in reliance on the promise made, nor had the taxi operators involved in the Liverpool Taxi Fleet Operators’ Association. Nevertheless, in both cases the applicants were held to be entitled to demand the fulfilment of the representations made.
In the present case I am of opinion that the same obligation to follow fair procedures in dealing with the question of the removal of the applicants from the jurisdiction arises in their favour and that the mode of procedure to be adopted should have regard to the assurances given by the Minister for Justice to the United Nations representative in the letter of 13 December 1985.
I accept that the legal status of the applicants, or the question of their legal entitlement to remain in Ireland, are not governed in any way by the terms of the letter and that it is of benefit to the applicants only in relation to the manner in which their claims to rights of asylum are to be processed.
I have come to the conclusion that, having regard to the terms of that letter, once a claim to asylum is put forward on behalf of aliens coming to this country, the person or persons concerned should be given an adequate opportunity to put forward representations to show why such application should be acceded to.
It is contended on behalf of the respondent that there is now an international understanding that a person seeking asylum is under an obligation to seek it in the first ‘safe country’ where he has an opportunity to do so having left the country where he claims he was subject to a well-founded fear of persecution or other serious threat to his personal safety.
It is also contended that the internationally-agreed procedure to be followed where the application has not been made in the first ‘safe country’, is to return the asylum-seeker from any other country where he may turn up seeking asylum, to the country where he should have made the application in the first place.
If, after a fair hearing, this preliminary issue is decided in the manner contended for by the respondent then that would clear the way for the sending back of the applicants to whatever country was appropriate having regard to the events which have happened in their particular case.
Having regard to the terms of paragraphs 8 and 9 of the letter of 13 December 1985, it appears to me that before reaching a final decision to refuse the application, the Department of Justice should use its best endeavours to consult with the UNHCR representative accredited to the Republic of Ireland.
A full examination of the question whether these are appropriate cases for granting asylum would not arise until this preliminary issue is resolved, and then only if it were resolved in the manner desired by the applicants. If such an international understanding exists as is contended for by the respondent, then the terms of the letter of 13 December 1985, must be read in the light of such understanding and qualified pro tanto.
The investigation of the applicants’ cases should have regard to the contents of paragraphs 3 to 10 (inclusive) of the letter of 13 December 1985.
On the evidence before me, I am led to believe that the applicants secured entry into the State initially by the production of documents (including passports) which in all probability were false and bogus to the knowledge of the applicants but I do not consider that this circumstance affords sufficient grounds for refusing their present application for judicial review in relation to their claim to refugee status and the so-called right to asylum.
It could, however, have a bearing on the ultimate decision as to whether the applicants should be allowed to remain in the State when their case has been investigated by the immigration officials.
I propose to make the following orders in favour of each of the applicants:
1. An order of mandamus directing the respondent to consider the application of each of the applicants for refugee status as defined in accordance with the United Nations Convention on the Status of Refugees as amended by the Protocol on the Status of Refugees of 1967, and subject to any further international agreement or understanding affecting the application of these instruments.
2. A declaration that each of the applicants is entitled to have his application for refugee status determined in accordance with the agreement on procedures agreed between the respondent and the United Nations High Commissioner for Refugees (UNHCR) as set out in a letter dated 13 December 1985 from Cathal Crowley, Assistant Secretary of the Department of Justice to Mr von Arnim, UNHCR representative having regard however to any further international agreement or understanding having a bearing on that agreement.
3. An injunction restraining the respondent from removing any of the applicants from the jurisdiction until the application of such applicant has been considered according to the procedures already referred to.
In the matter of an application for an Inquiry pursuant to Article 40, s. 4 of the Constitution,
Marey Gutrani v. The Governor of the Training Unit, Mountjoy Prison
Respondent
[S.C. No. 173 of 1992]
Marey Gutrani Applicant v. The Minister for Justice, Respondent
[S.C. No. 181 of 1992]
Supreme Court 2nd July 1992
Hederman J.
2nd July 1992
I agree with the judgment of McCarthy J.
McCarthy J.
The applicant is a Libyan national. In 1981 he forged papers to show that he was a student and therefore exempt from military service and thus obtained an exit visa which was a requirement for a Libyan national to leave Libya. He did not agree with the regime of the Libyan leader, Colonel Gaddafi. In February, 1983, he came to Ireland on a student visa which expired on the 30th June, 1984, after which he went into hiding holding various jobs and, eventually, in September, 1989, was found working in a restaurant without a work permit, and was instructed to call to the Department of Justice for interview. Following consideration by the Minister for Justice, a letter was sent to the applicant telling him to make arrangements for his departure from the State and that failure to leave might result in his being deported. He did not leave the State but in February, 1990, he was further interviewed and given the same information as had been sent in the letter which the applicant stated he had not received. Following representation by his then solicitors,Messrs. Ferrys, the Minister further considered the matter and decided not to grant him permission to remain in the State.
On the 29th August, 1991, the applicant, together with two other Libyans who were illegally in the State, was arrested and charged with three offences under the Aliens Act, 1935. After due consideration, the Minister, on the 18th September, 1991, deeming it to be conducive to the public good to do so, made an order requiring the applicant to leave the State on the 19th September, 1991, or on the earliest date thereafter on which suitable transport arrangements could be made for his return to Libya, and thereafter to remain out of the State. The charges upon which the applicant had been brought before the District Court were struck out and the applicant has been in custody since the 19th September, 1991. On the 27th September, 1991, he applied for refugee status in accordance with the United Nations Convention relating to the Status of Refugees, 1951, and the 1967 Protocol relating to the Status of Refugees. This was immediately after the deportation had been put in train, which deportation was stayed pursuant to an order of the High Court which directed an inquiry pursuant to Article 40 of the Constitution. That inquiry took place on the 25th September, 1991, before the High Court (O’Hanlon J.) who ruled that the applicant was validly held and that the order for his deportation was valid and enforceable. No appeal was taken from that order but on the 27th September, 1991, a further application was made on behalf of the applicant to the Minister and was, in part, treated as an application for political refugee status; it was thought not to be a bona fide application for the purpose of seeking such status in Ireland. Arrangements were made for the applicant and two other Libyans to be taken to Dublin Airport on the 29th September, 1991, when, due to violent resistance by the applicant, the captain of the aircraft upon which they had been placed ordered his removal; the two other Libyan nationals were deported on that occasion. Further arrangements to deport the applicant were made for the 3rd October, 1991, when an order was made by the High Court (Denham J.) restraining the Minister from removing the applicant from the State pending further order. On the 7th October, 1991, this injunction was continued and the applicant obtained leave to seek, judicial review by way of orders of certiorari, declaration and mandamus in respect of the Minister’s decision to deport the applicant. On the 14th November, 1991, the proceedings were struck out by consent on the terms set out in a letter of that date. This letter made the following provisions:
“1. The Minister will consider afresh the applicant’s application for refugee status.
2. Within seven days from 15th November, 1991, the applicant and his solicitors may make such submissions on his behalf as seem fit in respect of his application.
3. Within seven days of the receipt of these submissions, the Department of Justice will interview Mr. Gutrani. The Department will permit Mr. Gutrani’s legal representative to be present at this interview.
4. Following the interview of Mr. Gutrani the Department of Justice will consult with U.N.H.C.R.
5. Following this, the Department of Justice will make a decision as to Mr. Gutrani’s status within the State. This decision will be communicated to Mr. Gutrani’s legal advisors as soon as practicable and the Department will set out the reasons in writing for any decision.
6. The Department of Justice will take no steps to remove the applicant from the State until at least 24 hours has elapsed from the time that Mr. Gutrani’s legal advisers have been advised of a decision to refuse him refugee status or in the alternative to refuse to allow him to remain in the State for humanitarian reasons.”
On the 15th May, 1992, the application for refugee status was refused. Prior to that on the 27th April, the High Court (Blayney J.) had made an order for an inquiry under Article 40. This was duly held by the High Court (O’Hanlon J.) on the 28th May. He held that the applicant was being detained in accordance with law and refused to order his release. From that decision the applicant appeals.
On 3rd June, 1992, the applicant applied to O’Hanlon J. for leave to seek judicial review of the deportation order of the 18th September, 1991, specifically asking for an order of certiorari “quashing the decision of the respondent refusing the applicant’s application for refugee status and for leave to remain in Ireland for humanitarian reasons” and other analogous relief. The High Court (O’Hanlon J.) refused the application; the applicant appeals.
Control of aliens
Under s. 5 of the Aliens Act, 1935, the Minister for Justice is empowered by order to make provision for the control of aliens.
Amongst the orders made pursuant to that section is the Aliens Order, 1946, which, by art. 13, empowers the Minister to require an alien to leave the State. Such was the procedure adopted in respect of the applicant on the 18th September, 1991.
Ireland is a signatory to the United Nations Convention relating to the Status of Refugees and Stateless Persons of 1951 and to the 1967 Protocol relating to the Status of Refugees. Neither the Convention nor the Protocol has been made part of the domestic law of the State, but it is common case that a procedure for the determination of refugee status in Ireland has been established and operated as set out in a letter of the 15th December, 1985, from the Department of Justice to the United Nations High Commissioner for Refugees. The text of that letter is set out in an appendix to this judgment. Paragraph 5 provides “The asylum application will be examined by the Department in accordance with the 1951 Convention and 1967 Protocol on the Status of Refugees. This shall not preclude the taking into account of humanitarian considerations which might justify the grant of leave to remain in the State.”
In his judgment of the 28th May, 1992, O’Hanlon J., in this respect, stated:
“The Minister is required to investigate the claim made and under an informal international agreement recorded in correspondence between the Department of Foreign Affairs and the United Nations High Commissioner for Refugees a number of years ago a very clear and detailed procedure was laid down to be followed. A further right of recourse to the High Court can accrue if the Minister fails to carry out that agreement, although it is not part of our domestic law, constitutional or otherwise, because it has been held by this court that the making of that agreement can give rise to legitimate expectation that the procedure set out therein will be followed. In my opinion that is the full extent of the rights of an alien whom it is proposed to deport from the State. Those rights are firstly that the provisions of the Aliens Act, 1935, and the Aliens Orders are complied with faithfully and secondly that in the exceptional case where a claim to asylum has been made the claim will be carefully considered in the manner referred to.”
The Minister does not contest that he is obliged to consider the application within the framework of the letter of the 13th December, 1985. Having established such a scheme, however informally so, he would appear to be bound to apply it to appropriate cases, and his decision would be subject to judicial review. It does not appear to me todepend upon any principle of legitimate or reasonable expectation; it is, simply, the procedure which the Minister has undertaken to enforce.
The decisions in the High Court Article 40
(a) Fresh evidence.
In the High Court, the applicant sought to call oral evidence from Mr. Taffiq Ghazwani; apparently this evidence was relevant to the possible treatment of the applicant if he was returned to Libya. When the applicant, through his present solicitors, Messrs. Garrett Sheehan & Co., processed his application for asylum, submissions were made on his behalf and the applicant was interviewed in the presence of his solicitor by an assistant principal officer in the Department of Justice, following which the Department consulted with the representative of the United Nations High Commissioner for Refugees in London, furnishing a copy of the transcript of the interview with the applicant to the Commissioner’s representative along with the application for asylum. The Commissioner’s representative confirmed that, after careful consideration of the representations made, he saw no reason to change the views earlier transmitted to the Department of Justice in October, 1991, to the effect that the information available was not sufficient to substantiate the applicant’s claim to be recognised as a refugee in the terms of the 1951 Convention and the 1967 Protocol. The Minister for Justice personally considered the application of the applicant and decided that his application should be refused, taking into consideration the application itself and the submissions, the consultation with the U.N.H.C.R. and with the Department of Foreign Affairs and was satisfied on the basis of the information available to him that the applicant did not qualify for refugee status within the terms of the 1951 Convention and the 1967 Protocol relating to the status of refugees because he had failed to substantiate that he had a well founded fear of persecution in Libya for reasons of race, religion, nationality or membership of a particular social group or political opinion.
In the High Court, O’Hanlon J. excluded the evidence tendered, stating “to admit evidence in this court after the Minister has considered the matter and after he has carried out the proper consultations is in effect challenging the finding of fact made by the Minister and in my opinion it seems not to be warranted. It is clear in my mind therefore that this would be an incorrect application of the law governing deportation,if I were to receive such evidence.” In this ruling, the learned trial judge was clearly correct.
(b) The Minister’s decision.
O’Hanlon J. held that there was no scope in the High Court for re-opening the same issue – whether or not the applicant qualified for refugee status – whether on affidavit or on oral evidence. He said “if such a procedure were allowed and adopted it could have the effect of defeating the international law arrangements referred to, because any alien could engage in a course of conduct or the making of inflammatory statements in relation to his state of origin and thus seek to convert himself into a person worthy of refugee status.” Again, in my view, no other conclusion was open. There is no basis whatever for concluding that the Minister took into account any irrelevant consideration or failed to take into account any relevant consideration that was put before him.
(c) The other ground advanced, although not reflected in the judgment of the High Court, was based upon para. 5 of the procedural letter to which I have referred. In particular, reliance was placed upon the words “this shall not preclude the taking into account of humanitarian considerations which might justify the grant of leave to remain in the State.” I am unable to find any indication of this specific ground in either the statement of grounds or the additional statement of grounds or in the grounds set out of the notice of appeal on this aspect of the case. In any event, I am satisfied that the Minister does not have the same obligation to consider humanitarian grounds as he does to consider the substantive application and, further, that what may be called humanitarian grounds in the instant case have already been advanced and dealt with. Ordinarily, humanitarian grounds would be such matters as illness, family commitment and personal considerations not necessarily relevant to political relationships.
Judicial review
O’Hanlon J. held that this application concerned issues that were substantially the same as the issues that arose in the inquiry under Article 40. Consequently, he rejected the application for leave to seek judicial review. He therefore found that the applicant had not raised any new ground and refused the application.
The relevant portion of the statement of grounds in the application for judicial review says:
(v) The respondent erred in law and acted without or in excess of jurisdiction in failing to consider the applicant’s application for leave to remain in the State on humanitarian grounds. The failure on the part of the respondent to take account of humanitarian considerations which might justify the grant of leave to remain in the State was in breach of the conditions of the agreed settlement dated the 15th November and was contrary to paragraph 5 of the procedures agreed between the respondent and U.N.H.C.R. on the 15th November, 1991.
(vi) The respondent failed to take account of U.N.H.C.R.’s views regarding the applicant’s application for leave to remain in the State on humanitarian grounds.
(vii) The applicant by virtue of the said agreements had a legitimate expectation that his application for leave to remain in the State for humanitarian reasons would be considered by the respondent and a decision made thereon. The applicant had and has a legitimate expectation that the respondent’s decision would take into account all the evidence and submissions made by and on behalf of the applicant.”
The notice of appeal contains the ground that:
“4. The learned trial judge was wrong in law and in fact in failing to hold that the respondent failed to and continues to fail to consider the applicant’s application for leave to remain in Ireland for humanitarian reasons.”
In the course of the hearing of this appeal, the Court was informed that what may be termed the humanitarian grounds argument had not been advanced in the High Court; this is reflected in the judgments to which I have referred. A court would not ordinarily rule out such an argument in a case of this kind. Humanitarian considerations are not the monopoly of the Minister for Justice. The applicant relied upon considerations that arose in extradition cases where it was contended that on rendition an individual might be ill-treated – see Russell v. Fanning [1988] I.R. 505; Finucane v. McMahon [1990] 1 I.R. 165 andClarke v. McMahon [1990] 1 I.R. 228. I am not satisfied that there has been any failure on the part of the Minister to take account of every possible consideration. As I have already indicated, I doubt if the humanitarian considerations referred to would extend to such matters as political differences or fear of persecution; I think they are other matters such as I have indicated. If any purpose could be served by ordering further consideration of the matter by the Minister, I would not be deterred from doing so by the lapse of time involved. In my view, however, it is clear that the Minister and his departmental officials have acted with care and concern for an admittedly illegal alien who has evaded the law of this country for a period of years.
I would dismiss the appeals.
Appendix
Letter of 13th December, 1985
“Dear Mr. von Arnim,
I am directed by the Minister for Justice to refer to your meeting with him on 5 February 1985, following which UNHCR made a proposal for a procedure for the determination of refugee status in Ireland.
Your submission has been examined. As a preliminary matter I can confirm that at present the very limited number of asylum applications received in this country does not warrant legislative action incorporating the procedures suggested in your letter of 24 April, 1985. However, I am glad to be able to inform you that these procedures are in themselves quite acceptable. Accordingly, arrangements have been made for applications for refugee status and asylum to be considered in Ireland according to the following procedure which the Department believes to be in line with Ireland’s international obligations and humanitarian traditions:
1. Application for refugee status and asylum may be made by the individual to the Immigration Officer on arrival or directly to the Department of Justice if the individual is already in the country.
2. Immigration Officers have been provided with written guidelines which indicate clearly that a person should not be returned to a country to which he is unable or unwilling to go owing to a well-founded fear of persecution for reasons of race, religion, nationality, membership of a social group or political opinion, nor should he be returned to a country where his personal safety might be seriously threatened as a result of the political situation prevailing there.
3. Whenever it appears to an Immigration Officer as a result of a claim or information given by an individual that he might be an asylum-seeker, his case will be referred immediately to the Department of Justice, Dublin, for decision. Immigration Officers have been instructed that it is not necessary for an individual to use the term “refugee” or “asylum” in order to be an asylum-seeker. Whether or not an individual is an asylum-seeker is a matter of fact to be decided in the light of all the circumstances of the particular case as well as guidelines which may be issued from time to time by the Department. In case of doubt, the Immigration Officer shall refer to the Department of Justice.
4. Such an individual will not be refused entry or removed until he has been given an opportunity to present his case fully, his application has been properly examined, and a decision reached on it.
5. The asylum application will be examined by the Department in accordance with the 1951 Convention and 1967 Protocol on the Status of Refugees. This shall not preclude the taking into account of humanitarian considerations which might justify the grant of leave to remain in the State.
6. The applicant will be given the necessary facilities for submitting his case to the Department. If he is not proficient in English the services of a competent interpreter will be made available when he is interviewed. He will be informed of the procedure to be followed, and will be given the opportunity, of which he will be informed, to contact the UNHCR representative or a local representative of his choice. An applicant will be given this information in a language which he understands.
7. All applicants will be interviewed in person. Interviews will be conducted, as far as possible, by officials of the Department who understand asylum procedures and the application of refugee criteria, and are informed on human rights situations in the countries of origin. Where interviews cannot be undertaken by the Department, for example, because the asylum-seeker is outside Dublin, adequate guidance will be provided by the Department to the local immigration officials to ensure that all relevant information has been obtained and forwarded to the Department.
8. In line with the supervisory role of UNHCR under the 1951 Convention and the 1967 Protocol on the Status of Refugees, the Department may seek the views of UNHCR on any case prior to reaching a decision, or the UNHCR may make representations on the situation of a specific individual case or group of asylum-seekers.
9. In any case where refusal of the application is proposed or an immediate positive decision is not possible, the Department of Justice will consult with the UNHCR representative accredited to the Republic of Ireland, before reaching a final decision and before taking steps to remove the applicant from Ireland, provided that the representative is available at the time.
10. If the applicant is recognised as a refugee, he will be informed accordingly and issued in due course with documentation certifying his refugee status and with a travel document if he needs one. If the applicant is not recognised, he will be informed, in writing, of the negative decision and the reasons for refusal.
The procedure outlined above does not envisage a formal right of appeal as suggested in your proposal, but there is an element of appeal inherent in the procedure in view of the number of agencies brought into the examination, and the present practice by which each application is submitted to the Minister personally.
When the arrangements have been in practice for some time the procedure can be reviewed in the light of the experience gained.
Yours sincerely,
Cathal Crowley,
Assistant Secretary.
Mr. R. von Arnim, Representative,
U.N.H.C.R.,
36 Westminster Palace Gardens,
Artillery Row,
London SW1P 1RR, England.”
O’Flaherty J.
I agree.
Ji Yoa Lau (otherwise Rinji Nitta) v Minister for Justice
1991 No. 295 SS
High Court
29 July 1991
[1993] I.L.R.M. 64
(Hamilton P)
HAMILTON P
delivered his judgment on 29 July 1991 saying: On 13 May 1991, the applicant herein, applied to the High Court for an order pursuant to the provisions of Article 40 of the Constitution alleging that his continued detention in the Training Unit was unlawful.
The circumstances under which he was being detained in the said Training Unit were set forth in his affidavit sworn herein on 10 May 1991. And it appears from said affidavit that the applicant is a national of the Peoples Republic of China and comes from the city of Kwang Chow in Canton Province.
On 25 October 1990, he arrived at Dublin Airport, travelling with a false passport, obtained by him in the circumstances outlined in his said affidavit.
On arriving at Dublin Airport, he was refused leave to land and was detained by an immigration officer there. He was subsequently removed to Fitzgibbon Street Garda Station pending the making of arrangements for his return to Thailand.
On this date his solicitor contacted Mr Thomas Conroy, the immigration officer and indicated that an application was being made for refugee status, in accordance with the United Nations Convention Relating to the Status of Refugees 1951 (to which Ireland became a signatory on 29 November 1956) and the UN Protocol Relating to the Status of Refugees 1967 (to which Ireland became a signatory on 6 November 1968), though neither of these have the force of law in the State.
Mr Conroy indicated to the solicitors for the applicant that the application would be processed in the usual way, that no steps would be taken to remove him from the jurisdiction pending the determination of his status and that he would arrange for his transfer to the Training Unit, Mountjoy Prison.
On 30 October 1990, the applicant’s solicitors wrote to the Department of Justice confirming his application for refugee status and requesting that the Minister for Justice release him from custody pending the determination of his application for refugee status.
On 4 December 1990, the applicant’s solicitors forwarded to the Department of Justice a letter enclosing a statement made by the applicant outlining the basis of his application for refugee status and renewing the request to the minister for his release.
This application for release was renewed by letter dated 14 January 1991.
By letter dated 14 May, written on behalf of the Minister for Justice, the minister indicated that the applicant would be released subject to the following conditions:
1. That he remains within this jurisdiction pending a decision on his application.
2. That he report on each Monday, Wednesday and Friday to the officer in charge of the Aliens Registration Office, Harcourt Square.
3. That he will respond promptly to any requests for further information which might be made on behalf of the minister, and
4. That in the event of his application for refugee status being refused he agrees to leave Ireland.
The applicant was prepared to accept the first three conditions outlined in the said letter but not the fourth.
On 13 May 1991, I had made an order directing the Governor of the Training Unit, Mountjoy Prison, North Circular Road, to produce before the court at 2 o’clock in the afternoon on Wednesday, 15 May 1991, the body of the said applicant and requiring the said governor to certify in writing the grounds of his detention.
In accordance with the said order the applicant was produced before the court and the assistant governor of the Training Unit certified the grounds of his detention as follows:
I hereby certify as follows:
I hold the applicant in custody in the Training Unit pursuant to detention order dated 27 October 1990 made pursuant to article 5(4) of the Aliens Order 1946 (as inserted by article 3 of the Aliens (Amendment) Order 1975).
The said order which was appended to the Governor’s certificate provided that:
To the Governor, Training Unit, Glengarriff Parade, Dublin.
In exercise of the powers conferred on me by article 5(4) of the Aliens Order 1946 (inserted by article 3 of the Aliens (Amendment) Order 1975), I direct that, pending the making of the arrangements for his removal from the State, Rinji Nitta be detained in the Training Unit, Glengarriff Parade, Dublin, a place named in the Fourth Schedule of the Aliens Order 1946 (inserted by article 2 of the Aliens (Amendment) Order 1978), in the custody of such officer of the Minister for Justice as is for the time being in charge of that place.
Signed: Patrick John Daid, Immigration Officer, 27 October 1990.
It appears from the aforesaid letter dated 14 May 1991 that the Minister for Justice is processing the application made by the applicant for refugee status and I am satisfied that there had been no unreasonable delay on the part of the minister in the making of the extensive inquiries necessary in order to enable him to reach a decision on this matter as such inquiries have necessitated his obtaining the views of the United Nations High Commissioner for Refugees on the application and obtaining all relevant information with regard thereto.
A number of submissions have been made to the court by counsel on behalf of the applicant; in my view it is unnecessary for me to deal with them in the course of this judgment as having carefully considered the relevant regulations I am satisfied that the applicant’s present detention is unlawful.
As certified by the assistant governor of the Training Unit the applicant is being detained pursuant to the order made on 27 October 1990, by the immigration officer in exercise of the powers conferred on him by article 5(4) of the Aliens Order 1946 (inserted by article 3 of the Aliens (Amendment) Order 1975.
This section provides that:
5
(4) —An alien to whom leave to land has been refused under paragraph 2 of this article or who is deemed under article 6 of this order to be an alien to whom leave to land has been refused may be arrested by an immigration officer or by a member of the Garda SÃochána and, where so arrested may be detained under warrant of that officer or member in any place specified in the Fourth Schedule to this order by and in the custody of such officer of the minister or member of the Garda SÃochána as for the time being in charge of that place.
(5) —An alien detained under paragraph 4 of this article may be detained only until such time (being as soon as practicable) as he is removed from the State under article 7 of this order.
The said paragraph 5 makes it quite clear that that person detained under paragraph 4 may be detained only until such time (being as soon as practicable) as he is removed from the State under article 7 of this order, ie the principal Order SI No. 395 of 1946.
It is submitted on behalf of the Minister for Justice that as he was engaged in the inquiries necessary to enable him to reach a determination on the applicant’s application for refugee status it was not practicable for him to have made a decision on the applicant’s removal and that his detention was lawful while such inquiries were being carried out and it is necessary to have regard to the provisions of article 7 of the Aliens Order 1946 (SI No. 395 of 1946).
Article 7(5) of the said Aliens Order 1946 provides that:
An alien landing in contravention of this order may until dealt with under this order, be detained in such manner as the minister may direct and whilst so detained shall be deemed to be in legal custody.
Sub-article 6 provides that:
Where leave to land is refused to an alien, the alien may with the leave of an immigration officer, be placed temporarily on shore and detained at some place approved by the minister and while so detained shall be deemed to be in legal custody and not to have landed.
These sub-articles were revoked by the Aliens Order 1972, itself revoked by the Aliens Order 1975. However the remaining portions of article 7 still in force are:
Article 7(7) of the Aliens Order 1946 which provides that:
An alien, to whom leave to land has been refused or an alien, coming from a place outside the State other than Great Britain or Northern Ireland, to whom leave to land has not been granted, shall be removed from the State by the master of the ship on which he arrived or, if directions for this purpose are given by the minister or an immigration officer by the owner or agents of that ship, to the country in which the alien is a national or from which he embarked for the State or where (if a seaman) he was engaged, but this provision shall not apply if a period exceeding two months has elapsed since the date of last arrival of the alien in the State.
Sub-article 8 provides that:
Without prejudice to any other provision of this article, where leave to land has been refused to, or where leave to land has not been granted, an alien coming from a place outside the State other than Great Britain or Northern Ireland, and such alien is found in the State, it shall be lawful for an immigration officer or a member of the Garda SÃochána, notwithstanding any intervening prosecution and imprisonment of the alien, at any time within one month after the arrival of the alien, to replace the alien on board the ship in which he arrived in the State, or on board any ship belonging to the same owners and bound for the country from which the alien came to the State.
It is quite clear from a consideration of the terms of article 5(4) of the Aliens Order 1946, as inserted by article 3 of the Aliens (Amendment) Order 1975, the powers conferred on the immigration officer to direct the detention of an alien who has been refused leave to land are exercisable only until such time as he is removed from the State under article 7 of the Aliens Order.
It is quite clear from consideration of the provisions of article 7(7) and (8) of the Aliens Order 1946, that the maximum time permissible for detention pursuant to an order made under s. 5(4) of the Aliens Order 1946, is two months.
I do not have to decide whether the power of detention conferred by s. 5(4) of the said Aliens Order is effective to justify his detention while his application for refugee status is being considered by the Minister for Justice. Certainly after the expiry of the time specified in article 7(7) and (8) of the Aliens Order 1946 it is not. Consequently, I am satisfied that the applicant is in unlawful custody and these are the reasons for the order which I made directing his release from custody.