Nian v The Governor of Cloverhill Prison (No.2) [2020] IEHC 145 (17 February 2020)

BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!

IN THE MATTER OF AN APPLICATION PURSUANT TO ARTICLE 40.4.2° OF THE

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 17th day of February,

1. In Nian v. The Governor of Cloverhill Prison (No. 1) [2020] IEHC 93 (Unreported, High

Court, 10th February, 2020) I ordered the proceedings to be struck out, and the only

remaining issue is that of costs. I have now received a further affidavit from

D/Superintendent Peter Mulryan and further helpful submissions from Mr. Gavin Keogh

B.L. for the applicant, who seeks his costs, and from Mr. John P. Gallagher B.L. for the

2. It is unnecessary to fully recite all of the facts as set out in the Nian (No. 1) judgment,

3. As of 4th February, 2020, the information communicated from the Department of Justice

and Equality to GNIB was that deportations to China were still occurring in a number of

jurisdictions notwithstanding the coronavirus outbreak, and that the issue was being

considered on a case-by-case basis. Nonetheless, the situation was clearly evolving. The

applicant was arrested on 4th February, 2020 on foot of a deportation order and an

associated notification under s. 3 of the Immigration Act 1999. He was brought to

4. At 12.40 on 7th February, 2020, Mr. Alan King, Assistant Principal in the repatriation

division of INIS, informed D/Inspector Patrick Linehan and another member of GNIB that

there was to be a change in approach to deportation to China at the present time. Having

consulted with the head of Immigration Service Delivery (which seems to be a reference

to the Director General of INIS) it was considered that there was no realistic prospect of

removing Chinese nationals at that point, but the matter would be kept under review.

The GNIB was to take appropriate steps in terms of the two Chinese nationals then in

5. At 13.45 on that date, D/Inspector Linehan informed D/Superintendent Mulryan that, in

the light of this recent development, he was going to instruct the release of the applicant

and the other Chinese national then in custody. At around 15.30 on the same day,

without any warning or pre-action letter, the applicant applied to Heslin J. under Article

40 of the Constitution for an inquiry into the legality of his detention. The grounds

advanced had nothing to do with the coronavirus, but rather related to an allegation that

the applicant did not knowingly fail to comply with presentation conditions. An inquiry

was directed returnable for 14.00 on 10th February, 2020. That order was notified to the

CSSO at 15.45. Unaware of this development, the GNIB sent an order for the applicant’s

release to Cloverhill Prison at 15.57 on the same day, accompanied by an email from the

clerical officer in the arrangements unit, GNIB, Burgh Quay, asking for the applicant to be

“ready to collect” at 17.00. He was to be collected by a D/Garda from GNIB who would

6. The CSSO notified GNIB of the order under Article 40 at 16.19. The applicant was

released at around 17.39 and, as envisaged in the message to the prison, was met by a

Detective Garda who gave him a new presentation letter. The second Chinese national

was released for the same reasons around the same time, reinforcing the point that this

7. In M.K.I.A. (Palestine) v. The International Protection Appeals [2018] IEHC 134

(Unreported, High Court, 27th February, 2018), I endeavoured to summarise the leading

Supreme Court cases on this issue, Matta v. Minister for Justice, Equality and Law Reform

[2016] IESC 45 (Unreported, Supreme Court, MacMenamin J. (Dunne and O’Malley JJ.

concurring), 26th July, 2016), Cunningham v. The President of the Circuit Court

8. Mr. Keogh in seeking his costs relies on caselaw of some antiquity, Rostas v. Governor of

Mountjoy Prison [2012] IEHC 33 (Unreported, High Court, Peart J., 2nd February, 2012)

following Dempsey v. Member in Charge Tallaght Garda Station [2011] IEHC 257

(Unreported, High Court, Herbert J., 1st June, 2011). The focus in those cases is on costs

as a discretionary matter and also on whether, and to what extent, it was reasonable for

the applicant to have made the application. Unfortunately for the applicant, these are no

longer the primary questions. That approach has been superseded by the Supreme Court

jurisprudence that I have just referred to, and the decisions in Rostas and Dempsey need

to be viewed now as being (at best) confined to their own facts and not of particular

9. The first question set out in the Supreme Court jurisprudence is whether the proceedings

have become moot due to the unilateral act of one party. Here that is clearly satisfied.

The proceedings have become moot by the unilateral act of the respondent in releasing

10. The next question is whether that unilateral act is connected to the proceedings. On the

basis of D/Superintendent Mulryan’s affidavit, that is clearly not the case. The decision to

release the applicant had already been made before the Article 40 application was even

moved, let alone notified. Furthermore, the rationale for the release was not a point ever

made by or on behalf of the applicant. Unfortunately, the applicant’s release cannot on

any rational view be regarded as having any nexus with the proceedings.

11. Certainly one could envisage rules on the costs of moot proceedings that are more

favourable to applicants than the current rules, but that is really neither here nor there.

Even accepting that the court has a residual discretion above and beyond the default

approach, I do not see any strong basis to depart from the default approach here. Apart

from anything else, it is not clear that the applicant ever was in unlawful detention.

Insofar as any point is now made based on the coronavirus outbreak, he was released as

soon as the State decided that he could not be proximately deported. It is not clear at

this stage that there was any unlawfulness in the detention up to the 7th February, 2020.

Insofar as the grounds on which reliance was placed when the application for the inquiry

was made are concerned, admittedly the applicant’s point as to not having been notified

of the deportation order has yet to be tested, but we never got to the point of hearing the

12. As regards detention on the 7th February, 2020 itself, Mr. Keogh complains about the

applicant being in detention for a couple of hours after the decision to release him. But

that is not a point of great substance. The system worked reasonably efficiently and the

preparation of a certain amount of documentation and paperwork is inherent in the

practical mechanics of release. A detention does not become unlawful merely because the

prison gates are not flung open instantly in some kind of wide-eyed panic the moment

that the phone rings with a development of legal significance. As Lord Clark puts it,

“things must be made to work” (Kenneth Clark, Civilization (London, 1969) at p. 197);

and the fact that a human system involves the modest inherent delay in a certain

exchange of documentation between human actors in the course of giving effect to a

decision does not create an unlawful detention, or any unlawfulness at all.

13. As put in Cunningham, the mootness here related to an underlying change of

circumstances. There was no causal nexus to the proceedings as referred to in Matta

(para. 20). Accordingly, in the absence of any sufficient reasons to depart from the

default position, the order here will be no order as to costs.

Result: No result given.

	[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	High Court of Ireland Decisions
You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Nian v The Governor of Cloverhill Prison (No.2) [2020] IEHC 145 (17 February 2020) URL: http://www.bailii.org/ie/cases/IEHC/2020/2020IEHC145.html Cite as: [2020] IEHC 145

High Court of Ireland Decisions