Doubt has been cast on the validity of hundreds of deportation orders served on failed asylum-seekers following a High Court decision allowing the return to the State of a Romanian man who was being deported.
Immigration officers deporting Mr Dimitru Popa to Romania were forced to return him to the State after Mr Justice Herbert ordered his appearance before the High Court.
By the time of the court hearing on Tuesday, Mr Popa (26) was already en route to Amsterdam, from where gardai with the National Bureau of Immigration planned to bring him to Romania.
However, his lawyers contacted Aer Lingus officials at Dublin Airport, who in turn contacted the pilot. When the aircraft landed at Amsterdam, the pilot informed the gardai of the order and Mr Popa - who legally was still regarded as being on Irish soil - was returned to Dublin. He spent last night in Mountjoy jail.
The Department, which says it fully complied with legislative requirements on deportation, is expected to contest vigorously Mr Popa's application for a judicial review in the High Court today. The Minister for Justice, Mr O'Donoghue, last night declined to comment on the case, saying it was subjudice.
However, a spokesman said the Department's procedures had been implemented fully in accordance with the provisions of the Immigration Act. This allows for a deportation notice to be either delivered to a person or sent by registered mail.
Mr Popa will tell the court that he never received notice of the result of his asylum appeal, nor did he receive the deportation order sent to him by registered mail in April. Both this letter, and a copy sent to the Legal Aid Board solicitor handling his case, were returned undelivered.
Detectives searching for another rejected asylum-seeker arrested Mr Popa on Tuesday in Rathmines, Dublin, and deported him immediately. Mr Popa got a message to his brother, who contacted a solicitor, Mr Con Pendred. Within an hour, Mr Pendred secured an order of habeas corpus from the High Court.
Mr Popa came to the State from Romania two years ago seeking political asylum. He claims to have suffered persecution arising from his mother's involvement with the Communist party during the Ceausescu era.
Last April, his application was refused and he travelled to Britain. He later returned to the State and lived under a false name. When arrested, he was carrying documentation claiming he was Italian.
Mr Pendred said there were "serious consequences" for the Government if it sent back an asylum-seeker without a proper hearing.
"If the deportation is to be effected, it's only fair proceedings that the person involved should be notified and given the opportunity to consult with lawyers."
He accused the Department of proceeding with the deportation even though it knew court proceedings were afoot. Departmental sources say it would be impractical to track down every asylum-seeker to deliver deportation notices by hand.
The Supreme Court is currently examining the constitutionality of new legislation that would give the authorities power to detain intended deportees.
This is not the first legal challenge to the Department's deportation procedures. Last year, deportations came to a halt after the Supreme Court ruled that part of the Aliens Act was unconstitutional.
Mr O'Donoghue subsequently introduced new legislation that restored the State's right to deport non-nationals.
So far this year, 473 deportation orders have been issued and 50 people have been deported. Last year, six people were deported.
