A man’s claim that gardaí had no power to stop and arrest him for breach of a deportation order while he was driving his car has been dismissed as “defying logic” by the Court of Appeal.
The court expressed concern such “unstateable” applications, which must be heard urgently as they concern people in detention, take up valuable court time and costs, and urged lawyers should be “careful” about bringing cases with “no prospect of success”.
The president of the three judge court, Mr Justice Sean Ryan, said, while not criticising the man's lawyers, whose dedication to their client was "to be commended", this was both an "unstateable" Article 40 application to the High Court and an "unstateable" appeal.
While agreeing to recommend legal aid for this appeal, the court would take a "harder" line if other such unstateable cases are brought, he stressed. Mr Justice Michael Peart and Ms Justice Mary Irvine agreed.
A stay applies on the man's deportation until July 21st after his counsel, Rosario Boyle SC, indicated they wanted to consider whether to seek a Supreme Court appeal. He remains detained in Cloverhill Prison in the interim.
He was taken to Cloverhill on June 19th after being arrested under Section 5 of the Immigration Act for breach of a deportation order made in 2012 by gardaí in an unmarked car who ‘flashed’ him to pull over in his car.
Aged 32 and from Pakistan, he has been here since 2004 and lives with his partner and their three year old child, neither of whom are Irish citizens. When stopped, he was delivering goods for a cash and carry.
After the High Court dismissed his Article 40 challenge to the legality of his detention, he appealed.
Ms Boyle argued before the appeal court his detention is unlawful on grounds gardaí have no common law power, and no power under the Road Traffic or Immigration Acts, to stop a car to effect an arrest on foot of a deportation order.
Remy Farrell SC, for the Governor of Cloverhill, submitted arrest must include stopping a car or there would be a "profound absurdity".
Dismissing the appeal, Mr Justice Ryan said this “extremely simple” case concerned whether Section 5 of the Immigration Act permits gardaí to arrest a person when driving and the answer to that, “unquestionably, and beyond argument, is yes”.
The arguments on behalf of the man raised “difficulties of law, logic and commonsense” and necessarily involved the notion a person subject to deportation is immune from arrest as long as they are driving around, “or possibly just sitting” in their car.
That raised the issue why should driving a car be different from cycling a bicycle or sitting on a bus or train and, if the appellant was correct, would mean he had better protection sitting in his Toyota Avensis than sitting in his constitutionally protected home.
It was “impossible” to argue there is no power under Section 5 to arrest a person driving a car and arrest means “stop and seize”, he said. While attendant circumstances can arise to make an otherwise legal arrest unlawful, no such circumstances could be established by the mere fact of stopping a car.
Immigration is also part of the functions of the Garda force, he added.
