High Court upholds detention of Nigerian national at Dublin Airport pending passport collection under Dublin Regulation.

Neutral Citation Number: [2013] IEHC 511

THE HIGH COURT

IN THE MATTER OF AN INQUIRY PURSUANT

TO ARTICLE 40.4 OF THE CONSTITUTION

[2013 No. 1965 SS]

BETWEEN

FATAI GANYIU

APPLICANT

AND

GOVERNOR OF CLOVERHILL PRISON

RESPONDENT

JUDGMENT of Mr. Justice Hogan delivered on 12th November, 2013

1. The applicant, Fatai Ganyiu, is a Nigerian national in respect of whom a deportation order has already been made by the Minister

for Justice and Equality. In the last days of August 2013 Mr. Ganyiu was arrested and detained in the United Kingdom. He was then

held by the UK Border Agency in various holding centres in the UK until arrangements were made for his return to Ireland under the

provisions of the Dublin Regulation.

2. The applicant was accordingly flown for this purpose on a British Airways flight from Heathrow Airport to Dublin on the morning of

5th November, 2013. The aircraft arrived from London at 8.15am and parked in a holding bay at Terminal 1 at about 8.30am. As we

shall presently see, the applicant was subsequently arrested and refused leave to land. He was then removed from Terminal 2 to

Cloverhill Prison at approximately 1.30pm and he arrived at Cloverhill Prison at approximately 2.40pm later that afternoon. The issue

which I have to consider is whether his detention in the interval between 8.30am and approximately 1.30pm was lawful.

3. The evidence given on behalf of the respondent may be summarised as follows. First, Sergeant Doyle gave evidence that he is

attached to the Garda National Immigration Bureau at Dublin Airport and supervises immigration matters. He was aware that Mr.

Ganyiu was scheduled to arrive in the State on the early morning British Airways flight and he instructed Det. Garda Murphy to meet

that flight on its arrival in Terminal 1. Sergeant Doyle then gave evidence that Mr. Ganyiu was brought to his office in Terminal 2

where the latter’s application was processed and he was formally refused leave to land at about 9.30am.

4. Sergeant Doyle had made arrangements to have Mr. Ganyiu taken from Dublin Airport to Cloverhill Prison and the appropriate Garda

escort unit had been notified. Shortly after Sergeant Doyle had supervised the formal refusal of Mr. Ganyiu’s leave to land, he was

informed that the escort unit needed first to go back to Clontarf Garda Station in order to collect another person who was being

deported and who was scheduled to leave on a 11.00am flight. It was then arranged that the unit would go first to Clontarf Garda

Station and thereafter take Mr. Ganyiu to Cloverhill Prison. As it happens, however, as soon as the escort unit arrived back in

Terminal 2 for this purpose at about 10.00am, it was then necessary for them to make an unexpected diversion to deal with an

alleged shoplifting incident in a retail outlet at that terminal.

5. By reason, therefore, of this unexpected sequence of events, the escort unit only arrived back in Terminal 2 again at 1.20pm. The

unit then immediately took Mr. Ganyiu and another individual (who had been quite separately arrived back into the State under the

Dublin Regulation in the course of the morning) for Cloverhill Prison. The escort unit left at approximately 1.32pm.

6. Det. Garda Murphy gave evidence that he was also a member of the Garda National Immigration Bureau who was on duty that

morning at Terminal 2. Detective Garda Murphy stated that he had been informed by Sergeant Doyle of the fact that Mr. Ganyiu was

arriving in the State and he was directed to meet the British Airways aircraft as it arrived. He went up the steps to the aircraft and

spoke to the British Airways flight attendants. They had directed Mr. Ganyiu not to leave the aircraft until all other passengers had

alighted.

7. Det. Garda Murphy then introduced himself to Mr. Ganyiu and directed Mr. Ganyiu to accompany him. Det. Garda Murphy then drove

Mr. Ganyiu in a van from Terminal 1 to Terminal 2. Upon his arrival at the immigration office in Terminal 2, Mr. Ganyiu was then

processed and formally refused leave to land. Mr. Ganyiu was offered a sandwich and some water while the appropriate

documentation was completed by Det. Garda Murphy. One further complicating fact was that the escort van which Det. Garda Murphy

had used for the purpose of conveying Mr. Ganyiu from Terminal 1 to Terminal 2 was not sufficiently roadworthy for use on a public

road for the journey from Terminal 2 to Cloverhill Prison and, accordingly, that escort van could not have been used for this purpose.

8. The first objection raised by counsel for Mr. Ganyiu, Mr. Humphreys S.C., is to the detention of the applicant for the period when

he disembarked off the airplane until he was formally refused leave to land. The evidence established that the airplane parked at the

stand at about 8.30 am and that Mr. Ganyiu was the last to leave the aircraft. One may assume, therefore, that the applicant was

under effective restraint from the point where Detective Garda Murphy required him to accompany him, which was probably about

8.40am or thereabouts, since, as we have already noted, Mr. Ganyiu was the last to leave the aircraft.

9. In essence, therefore, the applicant says that there are two separate reasons why he was in illegal custody. First, it is said that

there was no legal basis for his detention for the period from the point he was taken off the aircraft until he was formally refused

leave to land. Second, it is contended that his detention at Terminal 2 was illegal in the period between 9.30am and 1.32am when he

was transported to Cloverhill Prison. We may now consider each of these arguments in turn.

The first period of detention: the period of restraint prior to the refusal of leave to land

10. As we have just noted, Mr. Ganyiu was then driven by van from Terminal 1 to Terminal 2, where he was then processed for

immigration purposes. He was then formally refused leave to land at about 9.30am. The power to restrain a non-national seeking leave

to land is contained in s. 4(5)(a) of the Immigration Act 2004 (“the 2004 Act”) which provides that:

“An immigration officer may, on behalf of the Minister, examine a non-national arriving in the State otherwise than

by sea or air (referred to subsequently in this subsection as “a non-national to whom this subsection applies”) for

the purpose of determining whether he or she should be given a permission and the provisions of subsections (3),

(4) and (6) shall apply with any necessary modifications in the case of a person so examined as they apply in the

case of a person coming by sea or air from a place outside the State.”

11. In my view, the word “examine” here is apt to cover the period where a non-national physically presents himself to immigration

officers to the point when a decision on leave to land is taken. Normally this will take, at most, only a matter of minutes, but

sometimes it may take longer in cases with unusual or special facts.

12. This point was considered by me in Toidze v. Governor of Cloverhill Prison [2011] IEHC 395. In that case the applicant, a Georgian

national, had been arrested by the Police Service of Northern Ireland when he had strayed into Northern Ireland when the car in

which he had been a passenger had lost its way. Mr. Toidze then expressed the desire to be returned to this State and the PSNI

made arrangements with their counterparts in GNIB to have Mr. Toidze deposited directly at the Louth/Armagh border. Mr. Toidze was

then conveyed by a member of the GNIB in a police van some 10 kilometres to Dundalk Garda Station where he was then processed

for immigration purposes and then refused leave to land.

13. I rejected the argument that the applicant was then in irregular or illegal custody:

“The principal complaint advanced …on behalf of the applicant was that there was no basis for the applicant’s

detention upon his arrival at the border and, furthermore, that the conveyance of the applicant to Dundalk Garda

Station under these circumstances was wholly unlawful and a violation of his constitutional right to liberty. It has,

of course, been clear for a very long time that there is no half way house between restraint and arrest: see, e.g.,

Dunne v. Clinton [1930] I.R. 366, per Hanna J. and The People v. O’Loughlin [1979] I.R. 85, 91, per O’Higgins C.J. In

most circumstances, therefore, the detention of the applicant and his conveyance to a Garda station would have to

be regarded as a wholly unlawful act in the absence of a formal arrest which was authorised by law.

The situation here, however, is different and unusual, as the position of a person seeking permission for leave to

land in the State is somewhat different to that of the rest of the population (whether citizens or non-citizens)

residing in or otherwise visiting the State. While it is true that the border between Ireland and Northern Ireland is an

international frontier, the modern reality is that, from an immigration perspective, given the operation of the

common travel area it is really little more than a line in the map for the majority of those who cross it. The

immigration facilities cannot, for instance, be compared to those which obtain at a major transport hub such as

Dublin Airport. As Garda Dunne explained, he could not really process the leave to land application in the car park

and that it would be necessary for Mr.Arabuli and Mr.Gagloshvili to travel under restraint to Dundalk Garda Station

for this purpose

In truth, therefore, the position here is really little different from that which obtains in the case of a non-national

presenting at Dublin Airport who has been required to accompany the immigration officer to a room or office so that

his identity and general credentials can be examined. In both instances, the non-nationals are under a degree of

restraint while they pass through the limbo of a form of transit zone while they await a decision as to whether they

will actually be allowed to enter the State.

In my view, the word “examine” in [ s.4(5) of the 2004 Act] should be understood as empowering the immigration

officer to take such steps as are reasonable and appropriate to ensure the proper processing of an applicant

seeking leave to land. In the context, it must be understood as empowering the immigration officer to detain or

otherwise restrain the movements of such an applicant insofar as - but only insofar as - it is objectively necessary

to do so to enable the proper processing of that person for immigration purposes.

Under ordinary circumstances, the process of examination should be measured in at most minutes. It is true that in

the present case the applicant had to be physically transported to a Garda station for this purpose so that this

could occur, but I consider that, having regard to the special circumstances of this case, it cannot be said that this

was not part and parcel of the “examination” of the applicant. In view of the nationality of the applicant, the fact

that he required to be in possession of both a passport and a visa and his general immigration history, he could not

realistically have been processed and given leave to land at the actual border. It follows that the conveyance of

the applicant to Dundalk Garda Station formed part of the “examination” of this applicant in the manner permitted

and contemplated by s. 4(5) of the 2004 Act. The detention of the applicant at the border crossing pending the

processing of the leave to land application was accordingly lawful.”

14. For my part, I consider that the situation of Mr. Ganyiu is no different in principle from that of the applicant in Toidze. The

applicant’s position upon arrival in the State could not, in any event, be realistically compared with that of other travellers, as he was

a person who had already been the subject of a deportation order and who had been transferred here under the provisions of the

Dublin Regulation. It was accordingly appropriate in that case to make special arrangements for him as he was transferred from the

aircraft following its arrival in Terminal 1 to Terminal 2, in much the same way as the applicant in Toidze had been conveyed from the

actual border with Northern Ireland to Dundalk Garda Station.

15. In that sense Mr. Ganyiu’s transfer from Terminal 1 to Terminal 2 and the actions of the GNIB in placing him under restraint were

part and parcel of the “examination” of this applicant for the purposes of s. 4(5) of the 2004 Act. It is for this reason, therefore, that

I consider that the present case is in this respect indistinguishable from Toidze and I would accordingly reject the argument that the

applicant was in unlawful custody for this period.

The second period of detention: from 9.30am until 1.30 pm

16. There is no doubt but that the applicant was detained in Terminal 2 from about 9.30 am until 1.30 pm. It is equally clear that

Dublin Airport has not been designated as a place of detention for the purposes of s. 5(2)(a) of the Immigration Act 2003 (“the 2003

Act”).

17. It is against this background that the applicant relies in my own decision in Ni v. Garda Commissioner [2013] IEHC 134, a case

where I held that the detention of a person who had been refused leave for a period of five hours in Terminal 2 was unlawful. It is

true that the present applicant was detained for a period of four hours in Terminal 2, but there the comparisons end for reasons I will

presently outline.

18. Section 5(2)(a) of the 2003 Act provides:-

“…..a person to whom this section applies may be arrested by an immigration officer or a member of the Garda

Síochána and detained under warrant of that officer or member in a prescribed place and in the custody of the

officer of the Minister or member of the Garda Síochána for the time being in charge of that place.”

19. Critically, however, no attempt was made in Ni to secure the applicant’s detention in any place other than Terminal 2. What had

happened in that case was that, having refused the applicant leave to land, it was decided - for perfectly understandable reasons of

administrative convenience – to detain the applicant at Terminal 2 pending the making of arrangements for his return to Paris from

whence he had arrived. I held, however, that the decision to detain the applicant at Terminal 2 was unlawful because it had never

been designated as a place of detention.

20. The present case, is, however, very different. Unlike Ni, the GNIB never sought to detain Mr. Ganyiu at Terminal 2 for any

appreciable period beyond the time he was refused leave to land at 9.30am. Indeed, but for a series of unforeseen contingencies he

would have been removed to Cloverhill Prison within minutes of leave to land having been refused. As both Detective Garda Murphy

and Sergeant Doyle explained, given that the other escort van was in need of repair and could not properly have been used on a

public road, they were dependent for this purpose on the other available Garda escort unit. That particular unit was scheduled to

collect Mr. Ganyiu sometime after 10.30am, but due to the exigencies of service that unit found itself diverted, not once, but twice

during the course of the morning.

21. In effect, therefore, Mr. Ganyiu would have been transported much sooner to Cloverhill Prison but for events amounting to force

majeure which prevented the escort unit arriving sooner. While there is no doubt but that the authorities have no jurisdiction to use

Dublin Airport for the purposes of the detention of persons refused leave to land, that it not really what happened here. It is rather a

case of where events beyond the direct and immediate control of GNIB conspired to prevent the removal of the applicant to Cloverhill

Prison some several hours later than had been originally planned and arranged. It is by reason of these special facts that I find myself

distinguishing my own decision in Ni.

22. In truth, the present case is much close to the facts of Kristo v. Governor of Cloverhill Prison [2013] IEHC 218 than those of Ni.

In Kristo the applicant was an Albanian national who arrived in Dublin on a flight from Maastricht without a passport. The applicant

was refused leave to land by reason of the fact that he lacked the appropriate documentation. He was then detained in Terminal 2 for

a period of several hours while the authorities sought to assist the applicant in making arrangements to obtain his passport by

contacting his son who was living in Greece before any final decision was made to have him detained in prison. In those

circumstances MacEochaidh J. held that that case was very different to Ni:

“The significant point of contrast between the facts in Ni and the facts in this case are that between arrest and

detention at 2.45 p.m. and the disturbance at 8.30 p.m., Mr. Ni was detained in Dublin Airport for the sole purpose

of affecting his removal. There was no intention at any point until the disturbance occurred to remove him from the

airport and to bring him to a prescribed place under warrant of detention. That only happened after 8.30 p.m. when

it became impossible to remove him on the evening flight to Paris. In this case, contrastingly, the purpose of the

applicant's presence in Dublin Airport following his arrest was related exclusively to assisting the applicant with

making arrangements to obtain his passport. It was for a considerably shorter period of time than that endured by

Mr. Ni - two hours and 15 minutes as against approximately six hours in Mr. Ni's case. I note in this regard that

certain provisions of the Immigration Act 2003 also place an onus on the applicant to co-operate with the relevant

authorities engaged in his removal from the State. Section 5(8)(b) of the 2003 Act states that a person in the

circumstances of the applicant "shall, for the purpose of facilitating his or her removal from the State, co operate in

any way necessary to enable an immigration officer or a member of the Garda Síochána engaged in the removal of

the person to obtain a travel document, ticket or other document required for the purpose of such removal". As

such, it would appear that the legislation envisages some degree of an exchange between the relevant immigration

authorities and the person proposed to be removed from the State such as that which occurred between Mr. Kristo

and Det. Garda Coakley in Dublin Airport.”

23. For my part I respectfully agree with the views of MacEochaidh J. and I consider that both Kristo and the present case are

distinguishable from Ni for the very reason that in neither of these two cases was there an intention to use Dublin Airport as a place

of detention in itself. Inasmuch as both applicants were detained at the Airport it was by reason of incidental and extraneous factors,

namely, assisting the securing of a passport (as in Kristo) or unforeseen delays in the arrival of the escort unit (as in the present

case).

24. For completeness I should note that reliance was also placed on the fact that the formal notice detaining the applicant referred

to the “Minister for Justice” rather than to “Minister for Justice and Equality” and it was said that this amounted to an error on the

face of the record. For all the reasons set out by MacEochaidh J. in Kristo, I consider that this was at most a harmless error which

could not affect the validity of the applicant’s detention.

Conclusions

25. For all the reasons, therefore, which I have ventured to set out, I must reject the argument that the applicant’s detention was

unlawful. In these circumstances, accordingly, I must refuse to order his release from detention for the purposes of Article 40.4.2.