II. FACTS

On August 1, 2011, Gardaí refused the applicant, Mr. Ejerenwa, permission to enter the State from Northern Ireland. Mr. Ejerenwa failed to produce a passport and was arrested. Gardaí presented him with 3 documents outlining the grounds for refusing him permission to enter the State. The first and second documents concerned the lack of a valid passport and the lack of a valid visa. The final document addressed the possibility of Mr. Ejerenwa entering the United Kingdom from Ireland, contrary to section 4(3)(h) of the Immigration Act 2004.

Pursuant to a detention order made on August 2, 2011, addressed to the Governor of the Prison, the applicant was scheduled to be detained in Cloverhill Prison until his removal from the State. The above grounds for refusing him permission to enter the State were omitted from the document, as was the testimony from a member of the Immigration and Border Control Unit. This testimony, from Detective Garda McGovern, stated that he reasonably suspected that the applicant had been in the State unlawfully for a continuous period of less than 3 months, necessary for a valid detention order under section 5(1) of the Immigration Act 2003. The dentention order merely stated that Mr. Ejerenwa’s detention was for the purpose of section 5(2)(a) of the Immigration Act 2003, which confers on Gardaí the power to arrest and detain non-nationals who have been refused permission to enter the State under the grounds in section 4(3) of the 2004 Act. The respondent argued section 5(2) was sufficient to make the order valid. The applicant started an inquiry under section 40.4.2 of the Constitution, in order to examine the lawfulness of his detention.

III. LEGAL BACKGROUND

The central disagreement between the parties was whether the reasons given in the order were sufficient to provide the authority to arrest and detain Mr. Ejerenwa. The High Court found that the applicant was detained in accordance with the law. Mr. Ejerenwa appealed this decision on three grounds: that the detention order was defective, that the order did not show the time period for valid detention, and that the process of seeking subsidiary protection was not complete. In the Supreme Court, the respondents claimed that section 5(2) of the Immigration Act 2003 provided sufficient authority to lawfully arrest and detain the applicant. They claimed that it was unnecessary to provide additional reasons for refusing entry and detaining him. Mr. Ejerenwa argued that the sole reference to section 5(2) of the Immigration Act 2003 was insufficient.

IV. RULING

Denham C.J. allowed the first ground for appeal: the detention order was defective as the order failed to directly state that the applicant had been refused permission to enter the State. This refusal gave Gardaí the power to arrest and detain pursuant to section 5(2) of the 2003 Act. The detention order also omitted the grounds for the arrest and detention of the applicant, as well as omitting the testimony of Detective Garda McGovern. This information was required by the applicant, the Governor of the Prison, and the Court, to inquire into the detention. Due to the omission of this information, the order was deemed defective and the Court ordered the release of the applicant on August 26, 2011.

Denham C.J. based the authority for her decision on the cases of The State (Hughes) v Lennon [1935] I.R. 128 and Gosset v Howard (1845) 10 Q.B. 411. These affirmed the principle that a detention order must show on its face the reasons for its existence. In this case, the order omitted the testimony of the Detective Garda, which was the basis for the applicant’s arrest and detention.

In relation to the other two grounds for appeal, the Court found that it was unnecessary to show the permitted period of detention on the order as it is provided by statute. The third ground for appeal was deemed moot as the Minister for Justice refused Mr. Ejerenwa’s application for subsidiary protection.

V. IMPACT

This case demonstrates the necessity of following correct procedures in the arrest and detention of individuals under the Immigration Acts. Furthermore, a detention order must contain all information required by statute or the courts will deem it defective and void.

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Author: Criona Gannon

II. FACTS

The parties married in 1977 and separated in 1995; they had no children during the course of their relationship. A separation agreement was created in August, 1996. Its terms included provisions that required the applicant to provide the respondent with a weekly maintanence, to pay the respondent’s VHI subscription, to provide a house, and to pay her an additional £70,000 lump sum. The settlement included a “full and final” settlement clause which stated that the terms of the agreement would be incorporated into the maintenance order of the High Court if the parties were granted a decree of judicial separation or divorce.

The High Court granted a decree of divorce to the parties in March, 2009. The settlement outlined the obligations of the applicant to provide for the respondent by paying €600,000 in an annuity, by paying €300,000 into a pension fund, by paying €65,000 for a VHI premium, and by providing €54,000 in annual maintenance. The order of the Court also included the provision of €100,000 as part payment of the respondent’s legal fees and an additional lump sum of €1,000,000 for the purchase of housing and insurance.

III. LEGAL BACKGROUND

The applicant, N.G., appealed the judgment of the High Court on the grounds that the level of capital provision and periodic maintenance was excessive and unreasonable, and that Abbott J. erred in his assessment of the applicant’s financial resources in the calculation of lump sums and annuities. The applicant also claimed that Abbott J. did not give due weight to the ‘full and final nature’ of the parties’ separation agreement. The applicant argued that he was unjustly forced to lose control of his assets when directed to pay periodic maintenance to the respondent and that the purchasing of annuities was an unreasonable waste of such assets. The applicant argued that it was unjust to deny an entitlement to apply for a review of maintenance costs in the future and that the order of maintenance was unfair in allowing the respondent to gain additional income in the form of a pension.

IV. RULING

The Supreme Court addressed the finality of the separation agreement and outlined general principles that apply when prior agreements exist between parties when an application is made to a court. These general principles stipulate that such an agreement shall be given significant weight and that its terms shall be incorporated into the court order, assuming that there is no fluctuation in the standard of living or value of assets since the the agreement was entered into. If circumstances were to differ significantly, then a court is required to consider all the facts before making a decision as to the relevance and strength of the original agreement.

The Supreme Court found that there had been a radical change in the value of the applicant’s assets and, therefore, the case was remitted to the High Court to allow for this change in circumstance. The sum of €600,000 for the respondent’s benefit was deemed to be excessive in relation to the original settlement agreed privately, as it did not take into account the other payments issued to her.

V. IMPACT

In divorce, the standard of living of a spouse shall not be elevated on the basis of the other spouse achieving further wealth. Another important point is that any wealth attained after the implementation of the separation agreement will not be admitted as a pertinent factor for consideration. Furthermore, a pre-trial non-legally binding order will be taken into account and given significant weight as long as there has not been any major fluctuation in the couple’s living standards or asset value. Does this leave an opening for the systematic enforcement of pre-nuptial agreements in Irish courts?

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Author: Shauna Beatty

II. FACTS

The applicant is the father of two children and claims that the respondent, his former wife, wrongfully removed his two sons from the state of New York. The applicant sought the return of his children. The High Court (Birmingham J.), found that the removal was wrongful and that no defence had been made pursuant to Article 13 of the Hague Convention. However, the High Court refused to return the children on the grounds set out in Article 13 because the children had attained the requisite age and a degree of maturity. The High Court, therefore, had to give weight to the children’s reluctance to being returned. In addition, the High Court refused to grant an order on the basis of Article 13(b): that the return of the children to New York would leave them at a great risk of physical or psychological harm or otherwise place the children in an intolerable position. The applicant subsequently appealed the decision of the High Court on the grounds that the trial judge erred in the application of Article 13 of the Hague Convention and in the inferences drawn from the report of Dr. Anne Byrne-Lynch, principal clinical psychologist of the HSE.

III. LEGAL BACKGROUND

The applicant claimed that Birmingham J.’s reliance on the report of Dr. Anne Byrne-Lynch was erroneous. The applicant also claimed that Birmingham J. failed to comply with established international jurisprudence in relation to the interpretation of Article 13. Finally, it was argued that Birmingham J. placed insufficient weight on the fact that the children were wrongfully removed from the place of their habitual residence.

IV. RULING

In refusing the relief sought and dismissing the appeal, the Court held that there is a growing understanding of the importance of listening to children in such cases. The Court relied upon Re D (A Child) [2007] 1 AC 619, and M.N. v R.N. [2009] IR 388, where the High Court held that the opinions of a six year old child should be heard. While this decision related to a different regime, it was fundamentally addressing the issue of the maturity of a child’s views. This case was endorsed by the Supreme Court in A.Bu. v J.Be. [2010] IESC 39.

In this case, the Court was satisfied that under Article 13 the trial judge had the discretion to take account of the children’s views. Furthermore, he was also entitled to rely on the report of Dr. Byrne-Lynch to the extent that he did. The Hague Convention provides that, in normal circumstances, children should be returned after a wrongful removal. In dismissing the appeal the Court held that the objections of the children constituted an exceptional case; as such, a refusal to return the children under Article 13 was justified.

V. IMPACT

This case demonstrates that once the maturity of a child is established, the views of the child in such cases will be afforded significant weight by the courts, even in cases surrounding wrongful removal. The courts had already established that they will refuse to return a child if they are at risk of physical or psychological harm or if they will be placed in an intolerable position. It appears, following this judgment, the Court believes that returning a child against their expressed wishes is tantamount to exposing them to an intolerable position or perhaps even psychological harm.

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Author: Patrick Noctor

II. FACTS

On September 22, 1999, the Minister for Enterprise, Trade and Employment requested that the High Court appoint inspectors to investigate the affairs of Ansbacher (Cayman) Limited, pursuant to sections 8 and 17 of the Companies Act 1990.

The applicant, Mr. Byrne, is a businessperson who held assets in two trusts in Ansbacher (Cayman) Ltd. He was interviewed by two of the four appointed inspectors on January 24, 2001, and gave evidence that at all times the trusts were administered by trustees. He stated that the trustees were in control of the trusts and that he had no access to the funds nor did he gain any benefit or income from them.

The respondents were His Honour Judge Sean O’Leary, Noreen Mackey (Barrister), Paul Rowan (F.C.A.) and Michael Cush (S.C.). The High Court made an order on May 25, 2001, allowing inspectors that were not present at interviews to report to the court on such interviews, providing they were not questioning the “veracity” of the evidence of that witness. If the inspectors were questioning the “veracity” of the evidence, the witness would have to be interviewed again with all inspectors present. This order was made under section 7(4) of the Companies Act 1990, which allows a court to give directions to inspectors to carry out investigations as quickly and as inexpensively as possible.

III. LEGAL BACKGROUND

The inspectors’ findings contradicted the evidence given by Mr. Byrne and he sought judicial review of the decision to make the report. This action was dismissed by the High Court.

The inspectors claimed that Mr. Byrne was seeking to have their substantive findings set aside and that it was not an issue of judicial review. Mr. Byrne claimed this was a matter for judicial review as the court order of May 25, 2001, stated that the inspectors’ report could only contradict the evidence given by a witness if the witness was interviewed by all four inspectors. However, the findings made in the report contradicted his evidence; making this a procedural issue.

The central disagreement between the parties was how the order of May 25, 2001, should be interpreted and, specifically, the use of the word “veracity”. Mr. Byrne claimed that veracity is an objective test and relates to how the evidence conforms to fact; if the inspectors are questioning the truth of his evidence then they are questioning its veracity. The inspectors argued that veracity is subjective and that it applies to the intention and belief of the witness. The inspectors stated that they were not questioning Mr. Byrne’s veracity as a witness: they believed that he was a “truthful and reliable witness” but that his evidence was factually incorrect. Therefore, they were within their powers to make the report.

IV. RULING

Hardiman J. ruled that veracity must be read in its context. In this case, veracity referred to the evidence rather than to the witness. He described as “remarkable” the submission made by the inspectors that although Mr. Byrne did at all times control and have income from the trust he was, however, truthful in saying that he did not control or have income from the trust. The inspectors also described Mr. Byrne as a “truthful and reliable witness”. To describe a witness’s evidence as reliable and at the same time to be false, Hardiman J. says, “borders on irrationality”.

Hardiman J. found that the inspectors were entitled to make findings that contradicted the evidence given by the witness. However, before they could make a report to the High Court to this effect they would first have to interview the witness with all four inspectors present. Because they did not do this, Mr. Byrne was entitled to succeed in his application for judicial review to have the findings of the inspectors quashed.

V. IMPACT

If State agents do not adhere to correct procedure, their subsequent findings will be deemed invalid.

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Author: Killian Donoghue