The arrest by Waterford gardaí of a Nigerian woman who has an Irish-born child was correct because she failed to comply with a notice informing her of her deportation, counsel for the State argued in the High Court yesterday.
Mr Paul O'Higgins SC said that Ms Bola Funmi Ojo had been residing at Mosney, Co Meath, and a notice of September 6th, 2002, had informed her she must remain in Mosney and present herself at Drogheda Garda station in September 2002.
The notice followed the making of deportation orders by the Minister for Justice, Equality and Law Reform in August 2002 against Ms Ojo and her four-year-old daughter, Toke Ojo. Ms Ojo's application is the first challenge to a deportation order involving a foreign mother of an Irish-born child since the Supreme Court decided recently that such orders are constitutional.
Ms Ojo went to reside with a friend in Waterford and she claimed she voluntarily went to Waterford Garda station on January 27th this year to give her new address and she was arrested.
The court was told that Ms Ojo and her six-week-old son were detained and brought to Mountjoy prison. Following habeas corpus proceedings, they were released on bail three weeks ago pending the hearing of her claim that she was unlawfully detained.
Ms Ojo has brought an application before the High Court in which she is challenging a decision of the Minister refusing her and her daughter the right to reside in Ireland.
Ms Ojo claimed her application for residency for herself and her daughter post-dated the deportation orders in that it was made following the birth of her son on December 15th, 2002. The Department had acknowledged her application and informed her there was a backlog of such applications.
She claimed that when she was being brought to the High Court on February 6th last to challenge her detention in Mountjoy prison, a Department official gave her a letter in the Minister's handwriting on unheaded notepaper which refused the applications for herself and her daughter to remain in Ireland.
Ms Ojo claims the Minister and his officials, on their own admissions, had not completed consultations with the Attorney General in relation to the ramifications of a recent Supreme Court decision in the "L and O" asylum cases when they made their decisions.
She claimed she had a legitimate expectation that her application for residency would not be processed for a substantial period of time and that she would be able to make further submissions in relation to her family situation and to get advice as to the Supreme Court judgments.
The State has denied all of Ms Ojo's claims. Mr O'Higgins said Ms Ojo had no right of residency in this country from the date the deportation orders operated.
Ms Justice Finlay Geoghegan asked if the failure to comply with the notice had been a breach of a civil order and was not therefore an offence. There was no inherent power to jail a person for a breach of a ministerial order. She asked if the authorities were entitled to arrest and detain a person for such a breach.
Mr O'Higgins said he appreciated there was nothing in the nature of a conviction against Ms Ojo but the State was exercising its sovereign powers in relation to a person who was unlawfully in the State and whom the State had decided to deport. Where such a person failed to comply with requirements under immigration legislation then the State might detain them for a period of up to eight weeks.
Mr O'Higgins said the Minister made his decision to refuse residency because Ms Ojo's challenge to her detention brought the residency issue to the forefront. It did not mean that a person had a right to say their case should not be decided for a lengthy period. There was nothing of substance in Ms Ojo's case to the court which had not already been taken into account when the Minister refused her application for residency.
The hearing continues on Tuesday.