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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> G.T. v Minister for Justice & Anor (Approved) [2025] IEHC 133 (05 March 2025) URL: http://www.bailii.org/ie/cases/IEHC/2025/2025_IEHC_133.html Cite as: [2025] IEHC 133 |
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THE HIGH COURT
JUDICIAL REVIEW
Record No. 2025 264 JR
[2025] IEHC 133
BETWEEN
G.T.
APPLICANT
AND
MINISTER FOR JUSTICE AND THE COMMISSIONER OF AN GARDA SIOCHÁNA
RESPONDENTS
AND
THE INTERNATIONAL PROTECTION APPEALS TRIBUNAL
NOTICE PARTY
EX TEMPORE JUDGMENT of Ms. Justice Siobhán Phelan, delivered on the 5th day of March, 2025.
INTRODUCTION
1. The matter comes before me on an application made on behalf of the Applicant that he be released on bail from detention at Cloverhill Prison where he is currently held pending deportation subject to such conditions as may be fixed. The Applicant does not invoke a statutory jurisdiction to grant a bail application but rather the application is brought in reliance on the inherent jurisdiction of the Court.
BACKGROUND
2. The Applicant is a Georgian national and a failed asylum seeker detained in custody since the 31st of January, 2025, pursuant to s. 5 of the Immigration Act, 1999 (as inserted by s. 78 of the International Protection Act, 2015 Act) pending his removal from the State on foot of a deportation order made on the 31st of May, 2023. At the time the deportation order was made it was considered that no refoulement concerns arose and repatriating the Applicant to Georgia was not considered contrary to s. 50 of the International Protection Act, 2015 (hereinafter "the 2015 Act").
3. The Applicant first claimed protection in the State on the 14th of November, 2022. From the papers it appears that a preliminary interview was carried out under s. 13(2) of the 2015 Act on that date. The record of this interview exhibited in grounding these proceedings is signed by an authorised officer but not by the Applicant and not by an interpreter. Thus, while the authorised officer signs to confirm witnessing the Applicant's signature in the section confirming receipt of information leaflets including a Free Legal Aid Information Leaflet, somewhat curiously the Applicant's signature does not appear on the copy exhibited.
4. In a questionnaire completed in English on the 14th of November, 2022, by the Applicant himself, the Applicant claimed protection due to his stated fears arising, inter alia, from his opposition political opinion, being a member/supporter of the Girchi party and threats from a named criminal in Georgia. He also claimed to have lost his passport.
5. A personal interview was conducted with the Applicant on the 29th of November, 2022, during which he was assisted by a Georgian language interpreter. He was asked questions about Girchi during interview and was unable to confirm when the party was established, identify more than one founding member, describe the party's symbol, identify the previous political party of the party founder he had named nor provide details of a major rally held by Girchi claiming a state of emergency during 2020. When pressed about his lack of knowledge he said (Q. 46) "I don't have a deep understanding of their politics." The Applicant confirmed that he did not report concerns to police because there was "no point".
6. The Applicant was issued with a first instance refusal of his application by the International Protection Office (hereinafter "the IPO") by way of letter dated the 13th of February, 2023. This first instance refusal was accompanied by a s. 39 Report dated the 2nd of February, 2023, in which his claim was given detailed consideration on behalf of the Minister.
7. It is clear from the s.39 report that the credibility of the Applicant's claim was not accepted by the IPO, specifically his asserted involvement with the Girchi party. This was because he showed a lack of knowledge of the political party he claimed to belong to and a lack of knowledge of a significant nationwide protest organised by this party. Furthermore, the threats he claimed to face as a member of Girchi were not in terms of physical harm, as he described them, but rather of not being able to get work, a claim which itself was not accepted by the IPO to be credible and was found to run contrary to available COI. Similarly, his claims to fear threats from a named criminal were found to be lacking in specificity and credibility.
8. Thereafter, the Applicant appealed to the IPAT, he says with the assistance of a person who claimed to be a "consultant" but on the face of the notice of appeal itself he confirmed that he did not have a legal representative. The notice of appeal dated the 21st of February, 2023, submitted grounds of appeal which the Applicant maintains in these proceedings included claims related to the Orthodox Church and COVID vaccination policies in Georgia as distinct from the reasons previously given for fearing return to Georgia. Although the notice of appeal is sparse in its terms it is clear from the face of the notice that he continued to rely on his membership of Girchi and he references a letter confirming membership. I note that no reference to Covid policies appears on the face of the said notice of appeal and only passing reference to religion without specifically referring to the Orthodox Church at all.
9. The application was refused by IPAT in or about March, 2023, following an accelerated appeal procedure and in the absence of an oral hearing by reason of the safe country of origin finding contained in the s. 39 report. The Tribunal decision is not before me and was not available to the Applicant's new solicitors in issuing these proceedings.
10. The Applicant was afforded the option of voluntary return to Georgia by letter dated the 11th of May, 2023, and invited to respond within five days notifying an intention to voluntarily return, failing which it was confirmed that the Minister would make a deportation order. It appears the Applicant made no response to this correspondence.
11. Subsequently, the Applicant was issued with a deportation order dated the 31st of May, 2023, on behalf of the Minister by letter of notification of the 2nd of June, 2023. At that point, it is clear that the Applicant consulted solicitors. The Applicant's previous legal representatives subsequently made representations to the Minister seeking to have his deportation order revoked pursuant to s. 3(11) of the Immigration Act, 1999 (hereinafter "the 1999 Act") by letter dated the 28th of June, 2023. Of particular note, no reference was made in these submissions to any procedural irregularity in the process insofar as s. 18 of the 2015 Act is concerned and no reference was made to the Applicant being misled in the terms of the appeal submitted by a person claiming to be a "consultant." The submission was accompanied by character references attesting to the Applicant's qualities and the thrust of the submission was on the connections the Applicant had made in the State. No question of risk arising from a return to Georgia was identified in the said submissions. No decision has been communicated on this application.
12. While an application was made in July, 2023, seeking revocation of the said order pursuant to s. 3(11) of the 1999 Act appears not to have been determined, the validity of the deportation order notified in June, 2023, has not been impugned. Between June, 2023 and January, 2025, it appears that the Applicant periodically presented with GNIB in accordance with their directions for the purpose of facilitating his deportation from the State. There is no record of the Applicant failing to present as required by the GNIB before me and he seems to have complied with GNIB requirements to present at their offices from time to time (see GNIB presentation letters issued to the Applicant dated 5th of July, 2023; 7th of September, 2023; 12th of October 2023; 14th of December, 2023; 18th of April, 2024, and 1st of October, 2024).
13. Notwithstanding his good presentation record, the Applicant was arrested and detained for the purpose of affecting his deportation on the 28th of January, 2025. Following his arrest, he instructed his current legal representatives on or about the 31st of January, 2025.
14. On the 12th of February, 2025 (resubmitted on the 17th of February, 2025 due to issues with its receipt by the Minister), the Applicant made an application pursuant to s. 22 of the 2015 Act seeking consent of the Minister to be readmitted to the international protection process based on developments since his application was first determined.
15. Detailed submissions in writing were made in relation to the basis of the application, namely that there had been significant and serious political developments in Georgia since the Applicant was refused international protection on appeal previously which have resulted in ongoing violence and political unrest in Georgia. Reliance was also placed on alleged procedural defects arising in the processing of the Applicant's initial claim for protection with specific reference to s. 18 of the 2015 Act. The submissions stated:
"the crux of our application is twofold. In the first instance, there have been significant and serious developments in Georgia since our client was refused international protection on appeal previously, which have resulted in ongoing violence and political unrest in Georgia. Secondly, that our client's application for international protection in the State was administratively unfair and flawed from the outset which resulted in his not being able to present his case effectively pursuant to section 22(4) of the 2015 Act."
16. It was further pointed out in these submissions that the Applicant's new solicitors did not have his complete file and did not have a copy of the IPAT decision recommending refusal of his protection application. The Minister was requested to provide an undertaking that the Applicant would not be removed from the State pending the determination of his s. 22 application. Express reliance was placed on Seredych v. Minister for Justice [2022] IESC 62 and P.N.S. v. Minister for Justice and Equality [2022] IESC 11.
17. Separately, a further application pursuant to s. 3(11) of the 1999 Act seeking to have the deportation order revoked was made by email dated the 13th of February, 2025.
18. By mail dated the 17th of February, 2025, it was confirmed on behalf of the Minister that the Applicant would not be deported pending the outcome of his s. 22 application seeking the consent of the Minister for Justice to make a subsequent application for protection.
19. By email dated the 18th of February, 2025, a response was provided on behalf of the Minister to a request that the Applicant be released from custody pending the conclusion of the s. 22 process confirming:
"....as previously stated your applicant is currently being held on foot of his extant deportation order. This order is still valid and will only be revoked if your client's application seeking consent of the Minister for Justice to make a subsequent international protection application is successful."
20. Also, on the 18th of February, 2025, the s. 22 application was refused on behalf of the Minister and the Applicant's new solicitors made a subject access request seeking disclosure of the file.
21. In his decision, the Minister found (at para. 5.5) that:
"A qualitative decision has been made regarding whether this section 22 application merits a subsequent application. The international protection office has regard to the following:
· The fact that the applicant had poor legal representation during his initial application for international protection is not relevant to a section 22 application. The onus is on the applicant to find suitable representation.
· The fact that the applicant submitted an incorrect application to the international protection appeals tribunal to appeal the first instance decision is not relevant to a section 22 application.
· The applicant's application for international protection that he was at risk of persecution for being a member of the opposing political party called Girchi was examined and refused by an international protection officer and this decision was affirmed at appeal in March 2023 and the applicant has not submitted any new evidence or information to support his claim.
· The various generic country of origin information submitted with the applicant's section 22 application is non-specific and does not hold probative value.
Having carried out a preliminary examination of the application, I am satisfied for the reasons set out above that no new elements or findings have arisen or have been presented by the person making this section 22 application for the Minister's consent which make it significantly more likely that the applicant would qualify for international protection."
22. An appeal was brought against this decision pursuant to s. 22(8) of the 2015 Act on the 19th of February, 2025 and remains pending before the IPAT. No timeframe for decision has been confirmed in evidence albeit counsel on behalf of the Minister indicated that the appeal would be prioritised by IPAT, whereas counsel for the Applicant points to a typical timeframe of in excess of 3 months on such appeals.
23. By email dated the 19th of February, 2025, after the lodgement of the appeal to IPAT against the s. 22 decision to refuse consent to a subsequent application, the Applicant's solicitors were advised that the Applicant would not be released from custody and no undertaking would be given. It was further stated:
"Please note that a 3(11) application and a section 22 appeal are both non suspensive to deportation"
24. The application for bail now comes before me in circumstances where the Applicant obtained leave to institute proceedings by way of an application for judicial review on the 27th of February, 2025, (Order of Simons J.) immediately prior to the departure of the charter flight arranged for the Applicant's deportation. The primary relief sought in the proceedings is an order restraining the Applicant's removal from the State pending the determination of his appeal against a refusal of consent by the Minister to allow him to make a subsequent application for international protection pursuant to s. 22 of the 2015 Act. The proceedings are grounded on affidavits sworn by the Applicant's solicitor and by the Applicant. In his affidavit sworn on the 27th of February, 2025, the Applicant confirms that he speaks English and understands written English (at paragraph 2). He reiterates in a further paragraph (paragraph 3(vi)) that "I speak English and I fully understand this Affidavit."
25. It warrants note that the Applicant does not appear to have required the assistance of an interpreter or translator in swearing his affidavit, despite otherwise claiming in these proceedings that he was wrongly not afforded interpretation or documents in a language he understood at earlier stages of the process.
26. In granting leave, Simons J. also granted an interlocutory order, inter partes, restraining the Applicant's deportation until the 14th of March, 2025. In consequence of this interlocutory order, the Applicant was not deported on the special charter flight, as originally intended.
27. A date for the hearing of a bail application was sought before me on the 3rd of March, 2025 and I listed before me on the 4th of March for hearing. Directions for an expedited hearing were given at that time and the proceedings are listed for substantive hearing on the 11th of March, 2025 (within two weeks of the institution of proceedings) in advance of an anticipated new date for deportation on the 19th of March, 2025 with Opposition papers due to be filed on the 5th of March, 2025 and submissions exchanged by lunchtime on the 10th of March, 2025. The Applicant has also been given liberty to file a further or replying affidavit by close of business on the 7th of March, 2025.
LEGAL FRAMEWORK
28. Section 3 of the 1999 Act provides for the making of a deportation order requiring any non-national specified in the order to leave the State within such period as may be specified in the order and to remain thereafter out of the State. Under s. 3(1A) a person the subject of a deportation order under this section may be detained in accordance with the provisions of the Act for the purpose of ensuring his or her deportation from the State.
29. Section 78 of the 2015 Act amended the 1999 Act by the substitution of a new s. 5 which in material part provides:
"5. (1) Where an immigration officer or a member of the Garda Síochána, with reasonable cause, suspects that a person against whom a deportation order is in force—
(a) has failed to leave the State within the time specified in the order,
(b) has failed to comply with any other provision of the order or with a requirement in a notice under section 3(3)(b)(ii),
(c) intends to leave the State and enter another state without lawful authority,
(d) has destroyed his or her identity documents or is in possession of forged identity documents, or
(e) intends to avoid removal from the State,
the officer or member may arrest the person without warrant, and a person so arrested may be taken to a place referred to in subsection (3) and detained in the place in accordance with that subsection.
(3) A person who is arrested and detained under subsection (1) or (2) may be detained—
(4) A person arrested and detained under subsection (1) or (2) may be placed on a ship, railway train, road vehicle or aircraft about to leave the State by an immigration officer or a member of the Garda Síochána, and shall be deemed to be in lawful custody whilst so detained and until the ship, railway train, road vehicle or aircraft leaves the State.
(7) Where a person detained under this section institutes court proceedings challenging the validity of the deportation order concerned, or of a decision by the Minister under section 3(11) in relation to the order, the court hearing those proceedings or any appeal therefrom may, on application to it, determine whether the person shall continue to be detained or shall be released, and may make any such release subject to such conditions as it considers appropriate, including, but without prejudice to the generality of the foregoing, any one or more of the following conditions:
(a) that the person reside or remain in a particular district or place in the State;
(b) that he or she report to a specified Garda Síochána station or immigration officer at specified intervals;
(c) that he or she surrender any passport or travel document in his or her possession.
(8) (a) Subject to subsections (9) and (10), a person shall not be detained under this section for a period or periods exceeding 8 weeks in aggregate.
(b) The following periods shall be excluded in reckoning a period for the purpose of paragraph (a):
.......
(9) (a) This paragraph applies to a person against whom a deportation order is in force who—
(i) has previously been detained under this section, and
(ii) not having left the State since the expiry of the latest period of his or her detention referred to in subparagraph (i), is arrested and detained under subsection (1) or (2).
(b) Where the aggregate of the period or periods of his or her detention referred to in paragraph (a)(i) and the period of his or her detention referred to in paragraph (a)(ii) is 8 weeks, a person to whom paragraph (a) applies shall continue to be detained under this section only with the leave of a judge of the District Court.
(c) Where the detention of a person is authorised under paragraph (b), the period of his or her detention referred to in paragraph (a)(i) shall be excluded in reckoning, for the purposes of subsection (8)(a), the period of his or her detention referred to in paragraph (a)(ii).
(11)......"
30. In terms of the remaining applications under consideration and as yet undetermined, s. 3(11) of the 1999 Act provides:
"3(11) The Minister may by order amend or revoke an order made under this section including an order under this subsection."
31. An application made on behalf of the Applicant in July, 2023 remains under consideration. No statutory provision is made for suspensive effect of a s. 3(11) application on an extant deportation order.
32. Section 22 of the 2015 Act provides, in relevant part, for a subsequent application, namely an application for international protection made by a person who has made a previous application for international protection in limited circumstances as follows:
22. (1) A person shall not make a subsequent application without the consent of the Minister, given under this section.
(2) ......
(3) .....
(4) An international protection officer shall recommend to the Minister that the Minister give his or her consent to the making of a subsequent application where, following a preliminary examination of an application under subsection (2), the officer is satisfied that—
(a) since the determination of the previous application concerned, new elements or findings have arisen or have been presented by the person which make it significantly more likely that the person will qualify for international protection, and the person was, through no fault of the person, incapable of presenting those elements or findings for the purposes of his or her previous application, or
(b)....
(5) An international protection officer shall recommend to the Minister that the Minister refuse to give his or her consent to the making of a subsequent application where, following a preliminary examination of an application under subsection (2), the officer is satisfied that neither paragraph (a) nor (b) of subsection (4) applies in respect of the person.
(6) Where an international protection officer makes a recommendation under subsection (5), the Minister shall, as soon as practicable, notify the person concerned and his or her legal representative (if known) of the recommendation, which notification shall include a statement—
(a) of the reasons for the recommendation, and
(b) informing the person concerned of his or her entitlement under subsection (8) to appeal to the Tribunal against the recommendation.
(7) The Minister shall notify the High Commissioner of a recommendation under subsection (5).
(8) A person to whom a notification under subsection (6) is sent may, within such period from the date of the notification as may be prescribed under section 77, appeal to the Tribunal against the recommendation concerned.
(9) Sections 41, 44, 45 and 46(8) shall apply to an appeal under subsection (8), subject to the following modifications, and any other necessary modifications:
(a) the Tribunal shall make its decision without an oral hearing;
(b) a reference in section 44 to the documents given to the applicant under section 40 shall be construed as a reference to the notification given to the applicant under subsection (6).
(10) Before reaching a decision on an appeal under subsection (8), the Tribunal shall consider the following—
(a) the notice of appeal,
(b) all material furnished to the Tribunal by the Minister that is relevant to the recommendation concerned,
(c) any observations made to the Tribunal by the Minister or the High Commissioner, and
(d) such other matters as the Tribunal considers relevant to the appeal.
(11) In relation to an appeal under subsection (8), the Tribunal may decide to—
(a) affirm the recommendation of the international protection officer, or
(b) set aside the recommendation of the international protection officer.
(12) The decision of the Tribunal on an appeal under subsection (8) and the reasons for the decision shall be communicated by the Tribunal to the person concerned and his or her legal representative (if known), the Minister and the High Commissioner.
(13) Where—
(a) an international protection officer makes a recommendation under subsection (4), or
(b) the Tribunal, under subsection (11), sets aside a recommendation under subsection (5),
the Minister shall give his or her consent to the making of a subsequent application by the person concerned.
(14) Where the Minister gives his or her consent under subsection (13) —
(a) he or she shall, as soon as practicable, notify the person concerned and his or her legal representative (if known) of that fact, and
(b) the person concerned shall be entitled, within 10 working days of the sending of the notification under paragraph (a), to make a subsequent application.
(15) .....
(16) .....
(17) .....
(18)..."
33. An appeal against a refusal of consent to make a subsequent application under s. 22 is pending but, as in the case of a s. 3(11) application, no statutory provision is made for suspensive effect of an appeal. A key question for the Court deciding the substantive proceedings in this case is whether and in what circumstances the existence of a pending appeal under s. 22(8) of the 2015 Act operates to preclude removal from the State and may ground the grant of an injunction restraining deportation.
34. Finally, it bears note that under s. 72 of the 2015 Act and the Internation Protection Act 2015 (Safe Countries of Origin) Order 2018 (No. 121 of 2018), the Minister has designated certain countries safe countries of origin. Georgia is one of these countries. As a result, the Applicant's country of origin is considered to be a safe country of origin in relation unless an applicant submits serious grounds for considering the country not to be safe in his particular circumstances and in terms of his eligibility for international protection.
EVIDENCE
35. In addition to the affidavit evidence grounding the proceedings, I heard oral evidence resisting the grant of bail from Ms. Clara Gill, solicitor in the Department of Justice advising the Repatriation Division and Detective Inspector Michael Griffin of the GNIB currently charged with operational responsibility for involuntary removal / forced repatriation.
36. In her evidence, Ms. Gill confirmed that since the institution of these proceedings the Repatriation Division had made further arrangements for the Applicant's deportation to Georgia on the morning of the 19th of March, 2025. She was unable to confirm when a decision on the s. 3(11) application would be made as she was not privy to operational matters of this kind. When it was put to her that people are not always detained in advance of deportation or extradition but "turn up" voluntarily, she replied that some people do not "turn up".
37. Asked about her concerns that the Applicant would not present, Ms. Gill confirmed that the concerns were not her concerns but were concerns of the GNIB. On her evidence, the only current impediment to the removal of the Applicant from the State is the interlocutory order made on the 27th of February, 2025. Asked in cross-examination if she was in a position to give any indication as to how long it takes s. 22 appeal decision to be made on the basis that the outstanding decision was an impediment to removal from the State, she confirmed that the Repatriation Unit have operated on the basis that s. 22 appeal was non-suspensive in effect. In terms of her concerns in relation to the grant of bail, Ms. Gill identified the possibility that the Applicant could seek to evade deportation if released from detention.
38. For his part, Detective Inspector Michael Griffin gave evidence of working with GNIB in various capacities and roles since December 2003. Currently, he has responsibility for forced removals and has held that responsibility for the last 18 months. He also confirmed having previous experience in the same area at a lower grade.
39. In his evidence, Detective Inspector Griffin explained the complexities of arranging a special charter of the kind which had been organised for the return of the Applicant together with others to Georgia on the 27th of February, 2025. He has been involved in organising more than 40 such charter flights, albeit the last previous charter flight to Georgia had been in 2019. In summary of his evidence in relevant part, he explained that the charter provider is identified through a tender process. Typically, the whole operation requires extensive coordination including liaison with the Charter Company, the Dublin Airport Authority, the Department of Justice, the Embassy of the country to which deportees are being returned and GNIB. It also involves the identification and location of persons the subject of extant deportation orders to ensure that the flight may be filled.
40. Addressing last week's charter flight to Georgia, Detective Inspector Griffin confirmed that it had involved numerous meetings over the last several months and required the staff of GNIB to record deportation orders and allocate them to different members of the Gardaí working with GNIB for the purpose of locating the subjects of orders and detaining them for deportation. The process followed in the case of a Georgian national being deported requires a travel document to be issued by Georgia, a process which requires at least 12 days to complete (using an RCMS system). This process requires verifying identity to the satisfaction of the Embassy and checking biodata. Work is also required in relation to risk assessment and security clearance to ensure the safety not only of staff working on the flight and accompanying GNIB members but also other returnees. He confirmed that there were children travelling on the Charter flight which the Applicant had been scheduled to take on the 27th of February, 2025 as well as an independent monitor and medical staff, all of which gave rise to a need for careful planning from a safety perspective to ensure appropriate escort numbers and properly manage risk.
41. Against the background of the level of planning involved, Detective Inspector Griffin pointed out that the 56 days detention provided for under the 2015 Act can be eaten into very quickly and is not excessive. The travel document which issues from the Georgian Embassy is time limited and is not an open-ended document but is valid only for a certain period. He confirmed that the travel document in respect of the Applicant is only valid for another three or four weeks and if the Applicant is not deported before it expires, the process of application will have to be repeated taking another 12 days minimum to issue.
42. Detective Inspector Griffin confirmed that the Applicant had been some 19 days in custody before he made an application under s. 22 of the 2015 Act. He considered the late application to be evidence of an intention to frustrate his deportation and to give rise to a concern that he would not present voluntarily for deportation.
43. While he accepted that the Applicant had complied in the past with reporting requirements, this did not reassure Detective Inspector Griffin that he would present voluntarily for deportation if released from custody. He pointed out that the Applicant had failed to leave the State in accordance with the deportation order served on him in June, 2023. He gave evidence of his experience of being involved in countless cases where the subject of a deportation order complies with presentation requirements right up to the end but when they know that a deportation is due to take place, they fail to present. He outlined that when people evade deportation and abscond, many are not subsequently located.
44. Detective Inspector Griffin confirmed that it remains the intention to deport the Applicant, presuming that deportation is not restrained beyond the 14th of March, 2025, or otherwise precluded by decision of IPAT on the s. 22 application. He confirmed that flight arrangements have now been made to remove the Applicant on the 19th of March, 2025, on a commercial flight and that arrangements have been made for three garda escorts to accompany the Applicant on this flight.
45. Cross-examined as to why the Applicant was arrested and detained but others were not, Detective Inspector Griffin confirmed that the Applicant was arrested and detained for operational reasons, based on previous experience of widespread absconding in the face of imminent deportation, the concern that the Applicant would abscond and the need to ensure numbers for the flight scheduled at significant cost. It is clear from his evidence that regard was had to the time, effort and expense involved in making the arrangements and the need to ensure that they were not wasted or futile.
46. While accepting that the Applicant was like all other persons the subject of deportation orders who were being removed having failed to leave, he reiterated that once news of a charter spreads, the risk is that persons like the Applicant would take the opportunity to abscond and in consequence it is GNIB practice to detain persons who they locate prior to their removal. Accordingly, while on his evidence decisions to detain are made in individual cases, the operational concerns which drive a decision to detain apply across the board and are not specific to the Applicant.
47. It appears from Detective Inspector Griffin's evidence (at least as I understood it) that the only people not detained for the flight last week were two mothers and five children. These were not detained because detention would have resulted in the separation of children from their parents and require Tusla involvement where both parents are arrested and detained. On Detective Inspector Griffin's evidence, even though the three fathers concerned were detained and were deported last Thursday evening, the other family members who had not been detained did not present and have not since been located.
48. When pressed as to the particular basis for arresting and detaining the Applicant when not everyone is arrested and detained for the purpose of ensuring their deportation, Detective Inspector Griffin returned to the fact that the Applicant was likely not to present for deportation. He instanced the fact that he did not put in his application for a s. 22 consent until after he had been arrested and detained. He considered that if released from custody there was a real risk, based on his long experience, that he would abscond and seek to frustrate his removal from the State. It was Detective Inspector Griffin's strong belief that the Applicant would not voluntarily present for deportation based on his long experience working in forced returns.
49. In response to questioning as to why it was necessary to keep the Applicant in custody now following the institution of proceedings by way of judicial review, Detective Inspector Griffin confirmed that the intention had been to remove him from the State last Thursday but this intention was hampered by the grant of an interlocutory injunction by the court. Nonetheless, it remains the current intention to remove him from the State when it becomes a possibility and it is anticipated that it will be possible following a full hearing of the proceedings, hence the flight arrangements made for the 19th of March, 2025. He acknowledged that were IPAT to allow the Applicant's appeal before his removal from the State were procured, then in those circumstances the deportation order would become null and void and the Applicant would not be deported. It was his position, however, that the extant deportation order remains valid and enforceable, subject to any order of the Court, up until such time as the Tribunal allowed an appeal or the Minister revoked the deportation order. Like Ms. Gill, he had no information as to when a decision was expected on the s. 3(11) revocation applications.
DISCUSSION AND DECISION
50. Although provision is made for release from custody under s. 5(7) of the 1999 Act, a jurisdiction under this provision is not invoked on behalf of the Applicant because the jurisdiction under that provision arises only where court proceedings have been instituted challenging the deportation order concerned or a decision of the Minister under s. 3(11) in relation to the order. No such proceedings have been instituted albeit it is suggested on behalf of the Minister that the proceedings could be so construed insofar as they seek to prevent effect being given to or reliance being placed on a deportation order.
51. On behalf of the Applicant, it was contended that I have an inherent jurisdiction to grant bail in circumstances where s. 5(7) of the 1999 Act does not apply. Reliance was placed D.P. v. Governor of the Training Unit, Minister for Justice, Equality and Law Reform and the Commissioner of An Garda Siochána, Ireland and the Attorney General [2001] 1 IR 492 where it was found (Finnegan J.) that in prescribing a maximum period of detention, s. 5(6) of the 1999 Act did not circumscribe the court's inherent jurisdiction to grant a bail application.
52. The position adopted on behalf of the Minister in respect of my jurisdiction to admit the Applicant to bail is somewhat opaque, partly it seems because final litigation decisions have yet to be taken in relation to the basis for opposing these proceedings, including whether proceedings can properly be treated as out of time as a challenge to a deportation order not instituted within 28 days in accordance with s. 5 of the Illegal Immigrants (Trafficking) Act, 2000 in which significant extension of time, leave threshold and rights of appeal issues would arise or, alternatively, are they proceedings falling outside the scope of s. 5 of the 2000 Act as contended on behalf of the Applicant, such that a jurisdiction under s. 5(6) of the 1999 Act is not available.
53. On the one hand, it is suggested that s. 5(6) of the 1999 Act may in fact apply on the basis that these proceedings can be construed as a challenge to the deportation order, whilst on the other hand it is pointed out that there was no necessity to rely on an inherent jurisdiction at all in D.P. v. Governor of the Training Unit, Minister for Justice, Equality and Law Reform and the Commissioner of An Garda Siochána, Ireland and the Attorney General because a statutory power to grant bail was clearly identified in that case.
54. Irrespective of the debating points identified and unclear as to the position to be adopted by the Minister in opposing these proceedings as to the applicability of s. 5 of the 2000 Act, I do not understand the position of the Minister, based on the arguments presented, to be that I lack jurisdiction to admit the Applicant to bail. Accordingly, I proceed now on the basis that I have jurisdiction either pursuant to s. 5(6) of the 2015 Act or the inherent jurisdiction of the Court to do so, without there being any necessity to determine from where the jurisdiction derives in this case.
55. Accepting that he had a jurisdiction to grant bail in D.P. v. Governor of the Training Unit, Minister for Justice, Equality and Law Reform and the Commissioner of An Garda Siochána, Ireland and the Attorney General, it is to be noted that Finnegan J. then refused the application for bail in that case. He did so having regard to the circumstances of the case which included evidence that the deportation order would be given effect to without delay and his conclusion that the applicant, if given bail, was unlikely to submit to the execution of the deportation order based on factors which included that he had changed his address without notifying same, had ceased collecting unemployment benefits which was considered to evidence his anxiety to avoid apprehension when collecting his benefits, had failed to attend before the Appeals Authority and was carrying forged documents on the occasion of his first arrest in a false identity, giving an incorrect name to the arresting garda.
56. These particularly egregious circumstances are not present in this case, but Detective Inspector Griffin's evidence, based on long years' experience and involvement in multiple deportation operations, substantiates a high risk of the Applicant's absconding in the face of an immediate risk of deportation. I consider his belief in relation to the level of risk to be supported by the failure on the part of the Applicant to raise issues now raised in an earlier s. 3(11) revocation application and his failure to engage with the s. 22 process until after he was arrested and detained. I therefore consider his concerns to be entirely justified notwithstanding that the Applicant presented as and when required by GNIB following the notification of the making of a deportation order.
57. During argument before me on this application to admit the Applicant to bail, I have been referred to the decision of the Court of Appeal in C.A. v. Governor of Cloverhill Prison [2017] IECA 46. In that case, Hogan J. was concerned with an appeal against a decision of the High Court refusing to direct release from custody pursuant to Article 40.4.2 of the Constitution in the case of a Pakistani national who was the subject of a deportation order and had been arrested and detained pursuant to s. 5 of the 1999 Act. Hogan J. said (at para. 6):
"the only issue which arises in this application is whether there is a settled intention on the part of the authorities to deport the applicant within the eight week time limit prescribed by section 5(6)(b) of the 1999 Act (as amended). It is perhaps worth emphasizing that the arrest and detention of an applicant such as Mr. A pending deportation represents a form of preventative civil detention. Mr. A has not, of course, been imprisoned in respect of any crime and a measure of this kind is one which is and must always remain an exceptional one in any free and democratic society. In Re Article 26 and the Illegal Immigrants Trafficking Bill [2000] 2 IR 360, the Supreme Court held that the detention for the purposes of securing the orderly deportation of non-nationals against whom deportation orders have been made and which was accompanied with appropriate safeguards (such as the eight week time limit) was not unconstitutional in these circumstances for these very reasons."
58. Hogan J. observed that continuing detention becomes unlawful if there is no immediate prospect of deporting the applicant within the eight-week period permitted by s. 5(8) of the 1999 Act.
59. In his earlier decision in Li v. Governor of Cloverhill Prison [2012] IEHC 493, Hogan J. observed that the constitutionality of the detention provisions contained in s. 5 of the 1999 Act had been upheld precisely because detention provisions of this kind were deemed necessary to enable effect to be given to deportation orders. As he noted, those provisions apply only to persons who have already been refused asylum and they, of course, are persons who have no right to remain in the State. Hogan J. observed that it was because it was recognised that there was a necessity for a measure of this kind to uphold a fundamental State interest, namely the effective and orderly operation of the deportation system, that s. 5 detention powers were found to pass constitutional muster.
60. It appears from the decision in Li that detention under s. 5 of the 1999 Act where a deportation order has been made is permissible when exercised in the light of its statutory purposes which require that it be combined with a continuing realistic prospect that deportation can be achieved during the statutory period (or, potentially, a lawful extension of same under s. 5(10)). Humphreys J. put it slightly further in J.A. (Cameroon) v. The Governor of Cloverhill Prison [2017] IEHC 610, at para. 26, when finding that a continuing intention to deport absent any "insurmountable impediment to carrying out that removal within the period allowed by statute", is a sufficient legal basis for the detention.
61. The question prompted by these authorities is whether a point has been arrived at in this case at which it can be concluded that there is no prospect that the deportation of the Applicant can be achieved during the statutory period or, alternatively, is there evidence of a continuing realistic intention to deport which may be achieved in the time remaining which would therefore justify holding him in custody in view of the absconding risk presented.
62. It seems to me that given the tight timeframes involved and the fact that decisions are outstanding on both a s. 3(11) and a s. 22 application, were these applications to be treated as suspensive, it would have to be concluded that the prospects of successfully removing the Applicant from the State within the next three weeks are slim, albeit still possible. Where the outstanding s. 3(11) and s. 22 applications are not considered suspensive and an order restraining deportation is not substantiated at full hearing in these proceedings, the prospects are considerably greater. Much therefore turns on the findings to be made as to whether suspensive effect should be ordered on the facts and circumstances of this case.
63. The Applicant has established the existence of stateable or arguable grounds as to why a deportation order ought to be suspended pending the determination of the s. 22 appeal at leave stage and on an interlocutory basis and on the balance of convenience. This decision made at an early stage of proceedings, in conditions of urgency, before Opposition papers were filed and without the full hearing accorded in substantive proceedings, does not preclude a different decision being made in respect of the substantive relief sought in these proceedings at hearing next week.
64. Underpinning the decision to grant interlocutory relief appears to be a finding at leave stage that it is arguable that the existence of an appeal against a s. 22 appeal may have suspensive effect in certain circumstances which it is also arguable may be present in this case. The law is not completely settled on this question yet. In P.N.S. (Cameroon) v. Minister for Justice and Equality [2020] IESC 11 it was held that while an applicant for leave to make a subsequent application under s. 22 is entitled to remain in the State pending the determination at first instance by an IPO of his application, there is no entitlement to remain in the State pending an appeal to IPAT. The rationale for a distinction maybe the subject of further consideration and submission at the full hearing of these proceedings.
65. Suffice to say there is no authority supporting suspensive effect of a s. 22(5) appeal absent cogent evidence of risk has been identified to me. Although it was established in Seredych v. Minister for Justice [2023] 3 I.R. 668 (at para. 69) that in a suitable case an injunction may lie to restrain removal on the basis of cogent evidence of risk, even pending an appeal to IPAT against a decision under s. 22(8) of the 2015 Act, no such argument was made in that case and it did not arise on the facts. Accordingly, the question as to whether and when an appeal to the IPAT under s. 22(8) of the 2015 Act has suspensive effect remains a question for determination warranting careful consideration in a case in which it properly arises.
66. While Simons J. was persuaded as to evidence of risk on an arguable grounds basis and at interlocutory stage in the absence of opposition papers, it cannot be assumed, as counsel for the Applicant appeared to argue before me on the hearing of this bail application, that the question of an entitlement to an injunction until the decision on an appeal under s. 22(8) is made is settled and is now res judicata.
67. Considerations on an interlocutory application are not necessarily the same as those on a full hearing for a permanent order (albeit permanency here is limited to the time required for IPAT to decide on appeal). Indeed, quite apart from the difference fuller factual and legal exposition make on a full hearing as opposed to an interlocutory hearing, circumstances may also change. For example, were a decision on the appeal to IPAT made before the determination of the proceedings and a decision in respect of the substantive relief sought made, the position would then be materially different. An example of where a change of this nature occurred may be seen in Toidze v. Governor of Cloverhill Prison [2011] IEHC 395 where it emerged during the course of an Article 40 application that the one obstacle which had previously stood in the way of the deportation of the applicant - in that case the willingness of the Georgian Embassy to issue a laissez passer in the absence of appropriate evidence as to the applicant's identity - had been effectively resolved. In consequence, the Court refused to direct release from custody on the basis that there was a settled intention to deport the applicant which could be achieved within the remainder of the eight-week time frame permitted by s. 5(6)(a) of the 1999 Act (as amended).
68. It is of relevance in this case in my view that the full record of the Applicant's application and most notably the IPAT decision on his appeal against the refusal of international protection were not before the Court at leave stage and when the interlocutory order was made and are still not before the Court. This has potential significance because a factor in an assessment of whether there is cogent evidence of risk that has not yet been properly considered must be the extent to which the risks now identified are the same as or sufficiently similar to those already considered in the previous protection decision making process. It is noted that the credibility concerns identified in the s. 39 Report, if replicated in the decision of the Tribunal on appeal, may also undermine the cogency of the risks identified in grounding interlocutory relief where the very fact of the Applicant's political involvement is not accepted.
69. By reason of the expedited procedure followed in this case, the full hearing of these proceedings and the entitlement to the injunction sought on a final as opposed to an interlocutory basis will fall to be determined in the hearing which is now scheduled to take place next week on the 11th of March, 2025. If the Applicant is unsuccessful in these proceedings, then absent an intervening decision favourable to the Applicant on the s. 3(11) or s. 22 applications, there will be no impediment to his removal from the State on the 19th of March next, in less than two weeks' time, still within the 56 days permitted under s. 5(6) of the 1999 Act. Accordingly, I am satisfied that the current intention to deport remains realistic and is not yet rendered unlikely because of the obstacles remaining.
70. Further, if it becomes clear on or before the determination of the substantive proceedings now scheduled for hearing next week or subsequent thereto that the current intention to proceed with deportation is no longer realistic or achievable within the parameters of a prescribed 56-day limit then, in those circumstances, it may be appropriate to direct the Applicant's release from custody. It will be open to the judge hearing these proceedings to admit the Applicant to bail at the conclusion of the proceedings should it then be considered appropriate to do so or a fresh application for bail may be moved in reliance on changed circumstances at any time. Such changed circumstances might include the existence of an extant appeal against a decision in these proceedings and/or the continuation of an order retraining deportation beyond the current order which operates only to the 14th of March, 2025, only.
71. It is recalled that important safeguards are provided under s. 5(8) of the 2015 Act limiting detention to 56 days. Any detention beyond this may only occur with the leave of the District Court under s. 5(10) of the 1999 Act. It is to be anticipated that an order under s. 5(10) will only be made by the District Court where it is necessary and proportionate in the light of all the circumstances including the existence or otherwise of an imminent plan to deport and following due regard to the fundamental right to liberty and detention in accordance with law, observing constitutional safeguards and freedoms.
72. On the current position now prevailing, I am satisfied that there is a settled intention to deport the applicant within the statutory period as evidenced by flight and escort arrangements now in place for the 19th of March, 2025 and the efforts made to secure an early hearing and final determination of these proceedings. The lateness of the application under s. 22 of the 2015 Act which was only made in February, 2025, after the arrest and detention of the Applicant and the failure to raise the issues now relied upon in respect of the protection decisions made by the IPO and IPAT before now, despite previous solicitors acting for the Applicant following the notification of the making of the deportation order in June, 2023, and the availability of much of the COI now relied upon since early 2024, are features which weigh against admitting the Applicant to bail. In my view, these features tend to undermine the bona fides of the Applicant's engagement with the process. His past behaviour brings into question the genuineness of his application under s. 22 of the 2015 Act which one might be forgiven for concluding was only made because of the fact if detention and the imminent risk of deportation and would not otherwise have been pursued.
73. Furthermore, the fact that it has been possible to facilitate an expedited hearing date has been an important factor in my decision because this is relevant to whether there is sufficient reality to the Minister's settled intention to proceed with the deportation once permitted to do so on the basis that it may be achievable within the three weeks remaining under s. 5(6) of the 2015 Act. These factors weighed together with the statutory purpose of s. 5(6) enactment by way of statutory acknowledgement of the very real difficulties evidenced in Detective Garda Griffin's testimony in securing removal from the State absent a power of detention given the high levels of absconding which occur when it becomes known that deportation is planned imminently lead me to conclude that continuing detention remains appropriate in this case.
74. Finally, in this regard, it seems to me that it must be recalled that were it not for his belated s. 22 application and the institution of these proceedings, the Applicant would already have been removed and would no longer be in detention in the State. There are sound policy reasons whereby the mere institution of proceedings should not be permitted to prevent effect being given to a deportation order and result in an automatic release from custody as this could lead to a potential abuse of court process.
75. Presuming a decision in these proceedings next week, I am satisfied that there remains a reasonable prospect that the Minister may still be able to give effect to his intention to deport on the 19th of March, 2025, should the proceedings be decided against the Applicant. This suffices to ground his continuing detention and admission to bail, in light of the risk factors addressed in Detective Inspector Griffin's evidence and the background of the Applicant's engagement with the process viewed together with the proper interest of the State in the effective implementation of immigration controls as provided for in law.
CONCLUSION
76. For the reasons set out above, I refuse the application for bail in this case at this time. The application may be revisited depending on the circumstances prevailing at the conclusion of the hearing next week or upon delivery of judgment or in the event of an appeal.