Grounds for detention

Author

Irish Refugee Council Visit Website

Detention is not used on a regular basis in Ireland, except in the following circumstances:

Detention under the International Protection Act 2015

Section 20 IPA provides that protection applicants may be detained by an immigration officer or a member of Garda Síochána and be arrested without warrant if it is suspected that they:

1. Pose a threat to public security or public order in the State;
2. Have committed a serious non-political crime outside the State;
3. Have not made reasonable efforts to establish their identity (including non-compliance with the requirement to provide fingerprints);
4. Intend to leave the State and without lawful authority enter another State;
5. Have acted or intends to act in a manner that would undermine (i) the system for granting persons international protection in the State, or (ii) any arrangement relating to the Common Travel Area;
6. Without reasonable excuse, have destroyed identity or travel documents or is or has been in possession of forged identity documents.

These grounds have remained intact despite the adoption of the Reception Conditions Regulations 2018. Some of the provisions of Section 20 IPA – namely detention based on the commission of a serious non-political crime, the intention to leave the State and unlawfully enter another, acting in a manner undermining the asylum system, or destroying identity or travel documents – are not in conformity with the exhaustive grounds set out in Article 8(3) of the recast Reception Conditions Directive.

Where an asylum seeker is detained, they must be informed, where possible in a language that they understand, that they:

• Are being detained;
• Shall be brought before a judge of the District Court as soon as practicable to determine whether or not they should be committed to a place of detention or released pending consideration of the asylum application in accordance with Section 20(2) and (3) IPA;
• Are entitled to consult a solicitor;
• Are entitled to seek legal assistance and legal representation;
• Are entitled to be informed of his or her entitlement to said legal assistance and representation, and his or her right to make a complaint under Article 40.4.2 of the Constitution and the procedures for doing so;
• Are entitled to be given a copy of the warrant under which he or she is being detained;
• Are entitled to have notification of his or her detention, the place of detention and every change of such place sent to the High Commissioner;
• Are entitled to leave the State at any time during the period of their detention and if they indicate a desire to do so, they shall be brought before a court as soon as practicable. The court may make such orders as may be necessary for their removal;
• Are entitled to the assistance of an interpreter for the purposes of consulting with a solicitor.

The detaining officer must inform the IPO or IPAT, as relevant, about the detention. The appropriate body then ensures that the application of the detained person is dealt with as soon as possible and, if necessary, before any other application for persons who are not in detention.

It should be noted that the planned establishment of a dedicated detention facility at Dublin Airport could lead to increased detention in practice. While the facility is now operational[1], owing to a lack of available statistics regarding immigration detention, it is not clear whether the establishment of the facility has led to an increase in the use of such detention.

Detention for the purpose of removal

Section 5 Immigration Act 1999 provides that in the case of an unsuccessful applicant for whom a deportation order is in force, a person may be detained by an immigration officer or a member of the Garda Síochána, if it is suspected that he or she:

• Has failed to comply with any provision of the deportation order;
• Intends to leave the State and enter another State without lawful authority;
• Has destroyed identity documents or is in possession of forged identity documents; or
• Intends to avoid removal from the State.

Section 5(6) of the 1999 Act prohibits detention for any single period of more than eight weeks and multiple detentions for periods of less than eight weeks where the total period exceeds eight weeks. Section 5 Immigration Act 1999 has been amended under Section 78 IPA so that such persons in the category above may be arrested without warrant. Another new ground under Section 5 is that a person may now be arrested without warrant if they have failed to leave the State within the time specified in a deportation order. Section 78(3) also enables persons to be detained at airport and ports of entry for periods not exceeding 12 hours.

A non-national detained under Section 5 of the Immigration Act 1999 can challenge the validity of his or her deportation in court. If a challenge is filed, he or she can also challenge his/her continued detention. Challenge to the legality of his/her detention can be made in habeas corpus proceedings before the High Court pursuant to Article 40(4) of the Constitution.

It should be noted that under the amendments to Section 5 under Section 78 IPA an immigration officer or member of Garda Síochána may enter (if necessary, by use of reasonable force) and search any premises (including a dwelling) where a person is or where the immigration officer or the member, with reasonable cause, suspects that person to be, and where the premises is a dwelling, the immigration officer or the member shall not, unless acting with the consent of an occupier of the dwelling or other person who appears to the immigration officer or the member to be in charge of the dwelling, enter that dwelling unless (a) the person ordinarily resides at that dwelling or (b) he or she believes on reasonable grounds that the person is within the dwelling.[2]

Detention under the Dublin Regulation

The European Union (Dublin System) Regulations 2018 provide the possibility to detain an asylum seeker for the purpose of carrying out a Dublin transfer where an immigration officer or member of Garda Síochána determines that there is a “significant risk of absconding”.[3] The criteria for determining such a risk have not been spelt out in legislation.

[1] Department of Justice, ‘Minister McEntee Attends Official Opening of Dublin Airport Garda Station’, 6 May 2022, available at: https://bit.ly/3HzrirV.

[2] Section 78(11) IPA.

[3] Regulation 10(4) European Union (Dublin System) Regulations 2018.