THE HIGH COURT
Record No.2002 /208 SS
Between
F. A.
Applicant
-and-
THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM
THE GOVERNOR OF MOUNTJOY PRISON, IRELAND
AND THE ATTORNEY GENERAL
Respondent
MR. JUSTICE SMYTH DELIVERED HIS JUDGMENT AS FOLLOWS ON THURSDAY 31ST JANUARY 2002
This matter comes before the Court by way of a matter of an inquiry under Article 40 of the Constitution in respect of which the initial application was made last evening.
The historical background of the case is as follows. The Applicant is a Nigerian national who has been in Ireland since 1999. He applied for refugee status. This application was dismissed. He continued on to remain in Ireland until a stage arrived where a Deportation Order was made by the Minister for Justice on 11th July 2001.
In respect of that Order, Judicial Review proceedings were begun on or about 23rd October 2001. The matter came before the Court on either 9th November 2001 or, as elsewhere suggested, 26th November 2001. The Applicant at that stage was represented by solicitor and Counsel. The Order of the Court was to dismiss the application. Thereafter, the Immigration Division Repatriation Unit of the Department of Justice notified the Applicant by letter dated 23rd November that the Order that had been challenged and in respect of which the Judicial Review proceedings had failed was going to be implemented and the letter indicated in the terms following concerning the decision of the Minister:

"In reaching this decision, the Minister has satisfied himself that the provisions of Section 5 (Prohibition of Refoulment) of the Refugee Act 1996 are complied with in your case. The reasons for the Minister's decision are that you are a person whose refugee status has been refused and, having had regard to the factors set out in Section 3(6) of the Immigration Act , including the representations received on your behalf, the Minister is satisfied that the interests of public policy and the common good in maintaining the integrity of the asylum and immigration systems outweigh such features of your case as might tend to support your being granted leave to remain in this State.
Please note the following requirements under the provisions of Section 3(ix)(a)(i) of the Immigration Act (as inserted by the Illegal Immigrants Trafficking Act 2000):
you are required to present yourself to the Member in Charge, Naas Garda Station, Naas, Co. Kildare, on Friday 30th November at 2:30 p.m. to make arrangements for your deportation from the State.
You are required to produce at that appointment any travel documents, passports, travel tickets or other documentation in your possession which may facilitate your deportation from the State.
You are required to cooperate in any way necessary to enable a Member of An Garda Siochana or Immigration Officer to obtain a travel document, travel ticket or other document required for the purpose of such deportation.
You are required to reside at the above address pending your removal from the State, that address being 10, the Waterfront, Basin Street, Naas, Co. Kildare."

The letter proceeds:
"A Member of the Garda Siochana or an Immigration Officer may require you in writing, if he or she considers it necessary for the purpose of ensuring your deportation to comply with any further conditions as outlined in Section 3(ix) (a) (i) of the Act referred to above.
When satisfactory documentation has been organised, arrangements will be put in place to effect your deportation not later than Friday 28th December . If you fail to comply with any of the provisions of the Deportation Order or with the requirement in this notice, an Immigration Officer or a Member of An Garda Siochana may arrest and detain you without warrant in accordance with Section 5 (i) of the Immigration Act (as amended by the Illegal Immigrants Trafficking Act 2000). It is also an offence of the Immigration Act 1999 to obstruct or hinder a person authorised by the Minister to deport you from the State."
In order of date, the next event appears to have been that an ex parte application was made to the Judge of the South Eastern Circuit under the provisions of Section 33(1) of the Family Law Act 1999 whereby the period of time for the giving notice of a proposed marriage was abridged and a certain exemption given for the provisions of Section 33(1)(a) of that Act, an order was made to that effect on 18th January 2002. The marriage licence was dated 22nd January 2002. I am not concerned about matters that are appropriate to the Judicial Review proceedings or the knowledge or want of knowledge of the intended about the Deportation Order and other events. My next concern is to consider the events of 24th January of just a week ago.

The evidence is to the effect that the Applicant intended to marry a Ms. Behan, that he arrived in a car in a car park in Carlow, that there were a number of persons in the car whom he has described in the course of the evidence and that there was another car which contained the witness, Ms. Storey, her husband and the flower girl, and the other details that she has given in that regard.
I have to take into account a number of factors before making determinations of fact. The Applicant is a foreigner. He may not be wholly familiar with the nuances of language, though that is not averred to or suggested in the course of the evidence. It was a day upon which he intended to get married. It was and is the fact that there are no official notes taken by the Gardai who were involved. The evidence as far as I am concerned establishes the following facts and I find as a fact that, having got out of the car in which he was in, in the car park, he met or was confronted with Members of An Garda Siochana. He states he was surrounded by four, I am satisfied on the evidence conveyed to me that it was three. The suggestion that seven men jumped out of a car I think is a gloss that I do not accept. It may very well be that members of the local Garda Siochana were in a position to assist the people effecting the arrest as to who was involved. The Garda car was unmarked, as were the individuals. However, it becomes a matter of determination of fact and I am trying to make every due allowance for the Applicant. I am satisfied, not because there is corroborative evidence but because I think it is the truth of the matter to my satisfaction, that the Gardai involved gave evidence and in particular, Garda Devally identified himself, showed his identity card, indicated the statutory provision under which he was about to effect the arrest and tried to convey that in clear English to the Applicant and most particularly that the Applicant, and I use this expression, was an "evader".

Insofar as other details are concerned, I am satisfied that Detective Garda McCague was the driver, that he got into the car to drive the car away. But having identified himself, his card and his section in clear English and established the identity of the Applicant in a matter of a few moments, and that is all it would take, the Applicant, with co-operation, got into the Garda car and seconds later, before they had left the car park, he was shown the Deportation Order. I am satisfied and find as a fact that he knew why he was being arrested, albeit he may not have anticipated being arrested in the circumstances, that there was a basis in law for his being arrested and I am satisfied that the general circumstances indicate to me that he was given reasons for the arrest, both in general and in detail.

Insofar as the discourse took place between Detective Garda McCague and Mrs. Storey, there is a suggestion that there was some form of discourtesy in that regard. The detail of that is not immediately central. However, if it were the case, it would be something I would have taken a very serious view of. This was a serious matter, it was a day of some moment to the Applicant. The lady who was being spoken to obviously had a fairly close and central role to play in the events of the day, but she did have the events of the day on her mind, she had the child and there was a distance between her car and that in which the Applicant was being taken away and I am satisfied that this was not in front of the registry office save that the car park is in the location where it is and the registry office is quite adjacent. I do not think it necessary to find any further or additional facts and I do not think that I should say any more. It is difficult for the Applicant to deal with and I will leave the matter at that.

I am satisfied that the Detention Order is valid and that the Applicant was properly arrested and that that matter should take its course. However, I bear in mind what Mr. Abbott has said, i.e. that there is the question of the Judicial Review. While the detention will remain in place, you will have liberty to mention the Judicial Review to Mr. Justice Finnegan at any stage in the course of the day, who will be able to deal with the case. 

MR. ABBOTT:		May it please your Lordship.
MR. JUSTICE SMYTH:	I have tried to keep things to an absolute minimum deliberately because I feel that there is a sensitivity which should be observed.
MR. ABBOTT:	Yes, I appreciate that, my Lord, and the Applicant will appreciate it as well.
MR. JUSTICE SMYTH:	I don't think I need. say any more but I am quite satisfied that he was properly arrested and detained.
MR. ABBOTT:	I would ask your Lordship for an order for costs and in view of the fact that the matter has not been recorded fully...
MR. JUSTICE SMYTH:	What do you want to say to  that, Mr. Barron?
MR. BARRON:	My Lord, usually the costs follow the event. An inquiry has taken place. Mr. Abbott's client has failed in his application. I did in fact take instructions on whether, in that event, I would apply for costs. But given the particular circumstances in respect of the marriage and so forth, it was felt that it would be appropriate not to apply for costs. But I can see no basis in anything that your Lordship has said that your Lordship would award costs to the Applicant.
MR. JUSTICE SMYTH:	My position in that matter of costs is that costs should now normally follow the event. I do take into account the circumstances and it will be a back-to-back costs.
MR. BARRON:	May it please your Lordship.
MR. ABBOTT:	May it please your Lordship.
MR. JUSTICE SMYTH:	You may mention the matter to Mr. Justice Finnegan at any stage. Until it is mentioned, he is not to be deported but you better air it with Mr. Justice Finnegan with dispatch.
MR. BARRON:	Perhaps I could just indicate the State's position formally. If it isn't mentioned by the end of the day, deportation will proceed.
MR. JUSTICE SMYTH:	All right. You know what you have to do then, Mr. Abbott.
MR. ABBOTT:	May it please your Lordship.
END OF JUDGMENT