Supporting Documents:

THE SUPREME COURT

DETERMINATION

IN THE MATTER OF AN APPLICATION PURSUANT TO

ARTICLE 40.4 OF THE CONSTITUTION

RESULT: On the 23rd November, 2016 the Court granted leave to the Applicant to appeal to this Court from the Court of Appeal

REASONS GIVEN:

1. Jurisdiction

This determination relates to an application by the Applicant in the proceedings for leave to appeal under Article 34.5.3° of the Constitution from a judgment of the Court of Appeal (Birmingham J., Mahon J. and Edwards J.) delivered on the 15th November, 2016 ([2016] IECA 330). The order appealed against was made on the 15th November, 2016 and perfected on the 17th November, 2016. The application for leave to appeal was received in the Office of the Supreme Court on the 18th November, 2016. As is clear from the terms of the Constitution and many determinations made by this Court since the enactment of the Thirty Third Amendment it is necessary, in order for this Court to grant leave, that it be established that the decision sought to be appealed against either involves a matter of general public importance or that it is otherwise in the interests of justice necessary that there be an appeal to this Court.

The Court considers it desirable to point out that a determination of the Court on an application for leave, while it is final and conclusive so far as the parties are concerned, is a decision in relation to that application only. The issue is whether the questions raised, and the facts underpinning them, meet the constitutional criteria for leave. It will not, save in the rarest of circumstances, be appropriate to rely on a refusal of leave as having a precedential value in relation to the substantive issues in the context of a different case. Where leave is granted, the issues permitted to be raised by the determination will in due course be disposed of in the substantive decision of the Court.

2. The proceedings

In these proceedings the Applicant sought an inquiry into the lawfulness of his detention at Cloverhill Prison. The Applicant was arrested under s. 5 of the Immigration Act 1999 on the 21st October 2016 and was brought to a “prescribed place”, that place being, in the instant case, Cloverhill Prison. An application for an inquiry under Article 40.4.2° of the Constitution was made in respect of the Applicant on the 24th October, 2016 and an enquiry was directed. Following a hearing before the High Court, Humphreys J. in a judgment dated 7th November, 2016 ([2016] IEHC 611) refused to order the release of the Applicant. An appeal was brought to the Court of Appeal and the Court of Appeal likewise refused to order the release of the Applicant. It would be helpful to outline the steps taken in the proceedings. Following the initial application on behalf of the Applicant to the High Court, the Governor of Cloverhill Prison certified that the Applicant was held “pursuant to detention order” dated the 21st October, 2016 and exhibited a “Notification of arrest and detention”. During the proceedings before the High Court, a complaint was made by the Applicant that the document relied on to detain him was not a warrant of detention as was contended to be required. An amended document was subsequently certified by the Assistant Governor of Cloverhill Prison, Ronan Maher, on the 26th October 2016, described as a “Warrant of Arrest and Detention”.

In his judgment, Humphreys J. was critical of the fact that no part of the original detention order described itself as a warrant but was entitled “Notification of arrest and detention”. The High Court concluded that it had an inherent jurisdiction to permit an amendment to that document and that it was appropriate to do so. Consequently, it was found that the Applicant was “now held” on foot of the second warrant. Thus, the High Court concluded that a second amended certificate, in which it was stated that the Assistant Governor of the prison held the Applicant “pursuant to Warrant of arrest and detention” dated the 21st October, 2016, despite having been backdated, was sufficient to detain the Applicant having concluded that the documentation was not invalidated by errors of such a fundamental nature that it could not be relied upon.

The matter was appealed to the Court of Appeal by Notice of Appeal dated the 8th November, 2016 and came on for hearing before that Court on the 14th November, 2016. The Court of Appeal, in its judgment of the 15th November, 2016, came to a different conclusion, namely, that the original detention order was sufficient to justify the Applicant’s detention (on the basis that the document, while not describing itself as a warrant, did “everything that a warrant could be expected to do” (at para. 22)). The Court of Appeal went on to indicate that if it was wrong in its view as to the validity of the document originally relied on, that it would have taken the same view as the High Court in relation to whether the respondent should be permitted to amend the documentation and that it was appropriate to so notwithstanding difficulties identified with the warrant of arrest and detention documents relying on the fact that there was no question that anyone involved in the matter could have been misled by the backdating. Thus the appeal was dismissed and the cross-appeal was allowed.

3. Stay

An order had been made in the Court of Appeal on the 8th November, 2016, pending the hearing of the Appeal, that the Respondent be restrained from deporting the Applicant until the 14th November, 2016, the date fixed for the hearing. Following the hearing in the Court of Appeal, an application was made to the Court of Appeal on the 22nd November, 2016 for a stay on the deportation order pending the determination of an application for leave to appeal to the Supreme Court but the application was refused on the basis that the court could not grant a stay or an injunction to restrain the execution of a valid deportation order. Directions were given by this Court that the Respondent’s notice should be filed by Friday, 25th November, 2016.

The Respondent indicated on the 23rd November, 2016, that the State was not disposed to give any undertaking not to deport the applicant pending the consideration of the Application for leave and further that it was proposed to deport him on the 24th November, 2016. In those circumstances, this Court, pursuant to paragraph 18 of Practice Direction SC 16, abridged the time for the filing of the Application for Leave and the delivery of the Respondent’s Notice. Furthermore, this Court considered it appropriate to have an oral hearing on the application for leave to enable the applicant to make an application for an injunction to restrain the execution of the deportation order immediately thereafter in the event that the determination of this Court was to grant leave. A hearing took place on the evening of the 23rd November, 2016 and at that hearing, leave to appeal was granted to the applicant and it was indicated that the reasons would be furnished in this written determination. The application for the injunctive relief was then made on behalf of the applicant and opposed by the respondent. The Court having considered that application refused to grant the injunctive relief sought for reasons given in an ex tempore judgment delivered by the presiding Judge, Mr. Justice O’Donnell.

The question of a stay or injunction pending the determination of an Application for Leave to appeal to the Supreme Court can arise often when the matter has already been considered in relation to the hearing in the High Court or Court of Appeal In such circumstances it will normally be appropriate for an application to be made to the Court of Appeal (or the High Court in the case of appeals under Article 34.5.4°) for a short stay or injunction as the case may be, pending the decision of this Court on an application for leave. In circumstances of urgency it may be appropriate for the Court of Appeal (or High Court), to grant only a very short stay or injunction, perhaps on strict terms as to the lodging of documentation, to permit the expedited procedure available in this court to be exercised. This procedure should avoid the risk of injustice and delay, while at the same time affording an opportunity for the jurisdiction of this Court to be invoked, and consideration to be given by this Court as to whether the constitutional threshold has been met. The Court of Appeal in this case considered on the 22nd of November application that it could not grant any injunction or stay because the injunction sought related to the deportation of the applicant pursuant to a valid order which had not been the subject of challenge. In such a case, the Respondent should consider refraining from taking steps to enforce an order while the jurisdiction of this Court, to consider if leave to appeal should be granted, has been invoked. If the Respondent nevertheless insists upon executing an order, or taking some other step, and thus necessitating an expedited hearing, the Respondent should be in a position to explain and justify such a decision

4. The contentions of the parties

The notice of application for leave to appeal together with the responses are published along with this determination. It is not, in those circumstances, necessary to set out in full detail the contents of those documents. For the purposes of this determination it is sufficient to summarise the basis upon which the Applicant suggest that the constitutional threshold for leave to appeal has been met.

It is contended on behalf of the Applicant that the issue as to whether an “administrative” warrant can be amended/substituted after it has been executed so as to “correctly reflect the statutory scheme” has the potential to affect a large number of persons. It is also contended that the question as to whether a respondent should be permitted, in the course of an inquiry under Article 40 of the Constitution, to rely on a warrant other than that issued and executed by the arresting garda at the time of the detention is a question with the potential to affect and change the course of many such inquiries.

A question is also raised as to whether, when a respondent chooses in the course of an Article 40 inquiry to amend his original certificate to certify as the basis for the detention a different detention order from that annexed to the original certificate, should he/she be permitted to rely upon the original detention order in the course of an appeal? It was pointed that this is a case in which the Applicant has been told during the period of the Article 40 inquiry that he is being held on foot of different orders/warrants of detention. The High Court and the Court of Appeal both refused to release the Applicant but each court did so relying on different documents. In those circumstances it is contended that the legal issues raised transcend the facts of the case and that the questions raised are of general public importance. Finally, it was contended that the issues arising in this case relate to the interpretation of a new regulation which appears to give wide-ranging powers to members of the Gardaí/immigration officers.

The respondent in its notice contends that the document relied on was not required to be headed “warrant” in order to take proper effect and justify the detention. It was pointed out that the subsisting deportation order is valid and unchallenged. It is contended that the challenge to the detention of the applicant amounts to a collateral attack on an otherwise valid deportation order. It is pointed out that the Applicant’s argument as to the requirement to head the document as a “warrant” derives from secondary legislation, namely Regulation 7 of the Immigration Act 1999 (Deportation) Regulations 2005 (S.I. 55 of 2005) (as amended in 2016 by amending regulations). It is therefore contended that it should be interpreted in accordance with s. 5 of the Act which provides for arrest and detention for the purpose of deportation. Accordingly it is contended that any defects in the paperwork were purely formal and did not affect the jurisdictional criteria underpinning the detention. It was also said that in the event that the detention was found to be unlawful, the Applicant would still be obliged in law to comply with the deportation order in default of which he would face arrest and detention so as to facilitate execution of the said order. It was noted that the Applicant accepts the existence of the facility for re-certification within Article 40.4.2° proceedings and thus the unique facts of this case would not have any more general or widespread application. Finally it is contended that as the matter was ultimately determined by the Court of Appeal on the basis of the original form of notice of arrest and detention, the issues concerning the manner of amendment and re-certification have no bearing on this case and therefore should not be the subject of leave to appeal.

5. Discussion

As is clear from the range of determinations made by this Court since the Thirty Third Amendment to the Constitution came into force, the constitutional function of this Court is no longer that of an appeal court designed to correct alleged errors by the trial court. Where it is said that the High Court has simply been in error in some material respect, the constitutional regime now in place confers jurisdiction to correct any such error as may be established on the Court of Appeal. Rather the text of the Constitution now in place makes it clear that an appeal to this Court, whether directly from the High Court under Article 34.5.4° or from the Court of Appeal under Article 34.5.3°, requires that it be established that the decision sought to be appealed against involves a matter of general public importance or that it otherwise is in the interests of justice necessary to allow an appeal to this Court. It will rarely be necessary in the interests of justice to permit an appeal to this Court simply because it is said that the lower court was in error. An appeal to the Court of Appeal provides the appropriate remedy for any error made by the High Court. Likewise, a party which has had the opportunity to have a decision of the High Court reviewed by the Court of Appeal will have had the benefit of having been able to put its case both at trial and on appeal. Without more, the interests of justice will not require any further review on appeal to this Court.

Against that background it is necessary to address the basis on which it is said that the constitutional threshold is met in this case. A number of issues have been raised in this case. The first relates to the form of document required to justify the detention of an individual who has been arrested pursuant to s. 5 of the 1999 Act and whether such document must be headed as a “Warrant of detention”. Allied to that question is the nature of the power to amend a document providing for the detention of an individual relied on in answer to an inquiry under Article 40 of the Constitution by providing a new warrant of detention in place of the original document relied on to justify the detention. A further question arises as to whether such new document can be backdated to the date of the original detention of the Applicant or whether it could be regarded as being in addition to the original documentation provided by way of certificate rather than a substitution thereof and what effect backdating has on the validity of the documentation and the steps taken to detain the applicant.

Finally, it appears to the Court that a question arises as to the jurisdiction of any Court to grant a stay or injunction to restrain the deportation of an individual pending appeal when the underlying deportation order has never been challenged.

The Court is satisfied that these issues meet the Constitutional threshold for an appeal to this Court and accordingly leave is granted to the applicant.

5. Conclusion

Accordingly, the Court having granted leave to appeal under Article 34.5.3° sets out below, subject to case management and potential refinement, the grounds:

(i) Must the document required to justify the detention of an individual be headed as a “Warrant of Detention” in order to be valid ?

(ii) What is the nature of the power to amend a document providing for the detention of an individual relied on in answer to an enquiry under Article 40.4.2° of the Constitution and can a new warrant be provided in place of the original document relied on to justify the detention?

(iii) Can such new document be backdated to the date of the original detention of the individual or should it be regarded as being in addition to the original documentation provided by way of certificate rather than a substitution thereof?

(iv) What effect, if any, does backdating have on the validity of the documentation relied on and the steps taken to detain the applicant?

(v) Finally, what is the jurisdiction of any Court to grant a stay or an injunction to restrain the deportation of an individual pending appeal when the underlying deportation order has never been challenged?