S27 Kadri v The Governor of Wheatfield Prison [2012] IESC 27 (10 May 2012)

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URL: http://www.bailii.org/ie/cases/IESC/2012/S27.html
Cite as: [2012] 1 ILRM 392, [2012] 2 ILRM 392, [2012] IESC 27

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Judgment Title: Kadri v The Governor of Wheatfield Prison

Neutral Citation: [2012] IESC 27

Supreme Court Record Number: 159/12

High Court Record Number: 2012 703 SS

Date of Delivery: 10/05/2012

Court: Supreme Court

Composition of Court: Fennelly J. Clarke J. MacMenamin J.

Judgment by: MacMenamin J.

Status of Judgment: Approved

Judgments by
Link to Judgment
Fennelly J.
Appeal allowed - set aside High Court Order
Clarke J. MacMenamin J.
MacMenamin J.
Clarke J.

Outcome: Allow And Set Aside


Fennelly J.
Clarke J.
MacMenamin J.



JUDGMENT of Mr. Justice Fennelly delivered the 10th day of May 2012.

1. The Court on Friday 27th April 2012 ordered the release of the appellant from custody in accordance with Article 40, section 4. 2° of the Constitution. In this judgment I give the reasons for that decision.

2. On 11th April, the High Court (Birmingham J) directed an enquiry into the lawfulness of the detention of the appellant. The respondent certified that the appellant was being detained in custody on foot of a notification of detention dated 29th March 2012 made by Detective Garda Ronan O’Halloran, a member of the Garda National Immigration Bureau (GNIB) pursuant to s. 5(1) of the Immigration Act, 1999. That Notification followed on an earlier such notification of 8th February 2012.

3. On 13th April Birmingham J conducted an enquiry in accordance with Article 40. The appellant’s complaint was that the total period of his detention, when counted from 8th February 2012, by that date exceeded the aggregate period of 8 weeks permitted by s. 5(6)(a) of the Act of 1999.

4. The learned judge referred to a number of earlier High Court decisions on the interpretation and application of that section, which he considered to be binding on him. He also referred to one decision of this Court. He held that the appellant’s detention was lawful because he had committed new or fresh breaches of the deportation order which was in force against him showing that he intended to avoid removal from the State. This gave rise to a power to make a new arrest and to issue a new detention notification.

5. The appellant appeals against the decision of the High Court.

6. The essential facts are not in dispute. The appellant is an Algerian national. He claimed asylum in the State on 25th October 2006. The Minister for Justice Equality and Law Reform, following his unsuccessful invocation of the asylum process, refused to treat him as a refugee. On 20th August 2009, the Minister made a Deportation Order in respect of the appellant. That Deportation Order required him “to leave the State within the period ending on the date specified in the notice served on or given to [him] under subsection (3)(b)(ii) of the said section 3 [of the Act of 1999], pursuant to subsection (9)(a) of the said section 3 and to remain out of the State.”

7. On 21st September 2009, a letter was sent to the appellant from the Repatriation Unit of the Irish Naturalisation and Immigration Service, a division of the Department of Justice Equality and Law Reform. That letter constitutes the notice issued to the appellant under Section 3(3)(b)(ii) of the 1999 Act. That notice conveyed to the appellant a number of requirements which he has admittedly breached but which are not relevant to the central issue on the appeal. They include notice that he was required to present himself at the office of the GNIB on 8th October 2009, to produce certain travel documents, to co-operate in obtaining documents required for his removal from the State and to reside at a specified address. The key requirement of the notice was as follows:

“The Deportation Order requires you to leave the State and to remain outside the State. You are obliged to leave the State by 8th October 2009.”

8. In any event, it is common case that the appellant did not and does not intend to comply with the requirement that he leave the State.

9. It was not until 8th February 2012 that the Garda authorities took active steps to enforce the Deportation Order. Very probably this was because the appellant was evading deportation. In particular, he did not reside at the address in Waterford where he was required to reside. Detective Garda O’Halloran on 8th February 2012 went to an address in Drumcondra and met the appellant who could offer no explanation for his failure to present himself at the offices of the GNIB on 8th October 2009.

10. Detective Garda O’Halloran arrested the appellant and conveyed him to Cloverhill Prison, which is a prescribed place of detention. He completed a Notice of Detention addressed to the Governor of Cloverhill Prison in accordance with s. 5(1) of the Act of 1999. He thereby directed that “pending the making of arrangements for [the appellant’s] removal from the State” he be detained in Cloverhill for the purposes of s. 5(1) of the Act. The printed form provides five boxes to be ticked showing the basis in law for the detention of the person. These correspond to the grounds for arrest and detention provided for in s. 5(1) of the Act. The Notification of Detention specified by way of ticked boxes that the appellant:

        • Has failed to comply with a provision of the [deportation] order;

        • Has failed to comply with a requirement in a notice under Section 3(3)(b)(ii).

        • Intends to avoid removal from the State.

11. On the 14th of February 2012, the appellant instituted Judicial Review proceedings seeking declaratory relief and injunctions and claiming that he could not be deported pending determination of an application for revocation of the Deportation Order. On 20th February 2012, the appellant applied unsuccessfully to the High Court (Cooke J) for an injunction preventing his removal from the State.

12. In the ensuing period the Garda authorities conducted discussions with the Algerian Consulate in London with a view to arranging the appellant’s deportation to Algeria. Arrangements were put in place and the necessary travel document was issued for his repatriation to that country on 29th March via London Gatwick Airport.

13. On 29th March Detective Garda O’Halloran and two other members of the GNIB went to Cloverhill Prison for the purpose of transporting him to Dublin Airport as the first stage of his return to Algeria. It is unnecessary to recount in great detail the graphic account given by Detective Garda O’Halloran of the appellant’s behaviour. Suffice it to say that he physically resisted in the most extreme way the efforts of the Gardaí. He resisted all Garda attempts to move him; he shouted that he would be killed and asked the Gardaí to shoot him; he threatened to kill himself; he forced himself to vomit on the Gardaí in the garda car; he attempted to injure himself by butting his head against a car window and then on the ground in the Airport.

14. Detective Garda O’Halloran concluded that it would be impossible to deport the appellant. It was obvious that he would not travel unescorted from Gatwick to Algiers as had been envisaged. He believed that, if the appellant was left unsupervised in the airport for a moment he would inflict injury on himself.

15. Detective Garda O’Halloran arrested the appellant at Dublin Airport and conveyed him to Wheatfield Prison which is also a prescribed place of detention. He completed and signed a new Notice of Detention in accordance with s. 5(1) of the Act of 1999, this time addressed to the Governor of Wheatfield Prison. Detective Garda O’Halloran says that he had arrested the appellant because he had refused to leave the State and that he was in breach both of the Deportation Order and of the terms of the letter of 21st September 2011 in that he refused to leave the State or to comply with the directions of the GNIB. He believes that the appellant will take steps to avoid any attempt to deport him from the State. The same boxes were ticked as in the earlier Notification. Thus, exactly the same grounds justifying detention were cited as in the first Notification.

16. The appellant remained in custody in Wheatfield prison pursuant to the Notification of Detention dated 29th March 2012 until the date of the hearing of the appeal.

17. Section 5 (1) of the Immigration Act, 1999 as substituted by section 10 (b) of the Illegal Immigrants (Trafficking) Act, 2000 provides that:

“Where an immigration officer or a member of the Garda Síochána with reasonable cause suspects that a person against whom a deportation order is in force

        (a) has failed to comply with any provision of the order or with a requirement in a notice under section 3 (3) (b) (ii),

        (b) intends to leave the State and enter another State without lawful authority,

        (c) has destroyed his or her identity documents or is in possession of forged identity documents, or

        (d) intends to avoid removal from the State,

he or she may arrest him or her without warrant and detain him or her in a prescribed place.”

18. The judgment of this Court, delivered by Keane C.J., on the reference under Article 26 of the Constitution, in Re Illegal Immigrants (Trafficking) Bill 1999 [2000] 2 IR 360, explained the justification and the purpose of the provision is as follows at page 407:“Where there is a suspicion with reasonable cause that a person concerned is not going to permit the deportation order to be carried out in a proper manner detention to secure such proper deportation is to be permitted.” In the course of its consideration of the provision, the Court stated at page 411 of the judgment that “it would be an abuse of the power to detain if it was quite clear that deportation could not be carried out within the eight weeks.” It remarked at page 412 that “eight weeks in aggregate is a relatively narrow limit…”

19. The appellant’s complaint is that his detention was unlawful once eight weeks had expired following 8th February 2012, the date of commencement of the first detention notice. Section 5(6) (a) of the Act of 1999 provides that “a person shall not be detained under this section for a period or periods exceeding 8 weeks in aggregate.”

20. The appellant makes a subsidiary or alternative point to the effect that the Notification of Detention is defective because it does not specify the date of expiry of the eight-week period. I can say at once that this latter point is without merit. The eight week period is a matter of general law. It is not a ground of detention which needs to be specified. Denham C.J., in Ejerenwa v Governor of Cloverhill Prison and others [2011] IESC 41, dealt with a more or less identical point, arising on the interpretation of s.5(2) of the Immigration Act, 2003, as follows:

“The permitted period of detention is a matter of general law; it is provided for by statute; a warrant of detention is not required to make statements of law. Also, any such requirement could be misleading. For example, the order in issue was made on the 2nd August, 2011. It was the second order. The first was made on the 1st August, 2011. Therefore the eight weeks did not run from the 2nd August, 2011, but from the 1st August, 2011. Further, the legislation permits time to stop running in certain circumstances, for example, if the appellant has instituted litigation, up to and including the determination of the appeal. Thus, if an order on its face stated an eight week period, it would in fact be defective in circumstances where a person had brought litigation, as the time would have stopped running.”

21. There has been a number of High Court decisions, notably Gmemibade v Minister for Justice Equality and Law Reform (High Court, unreported 30th November 2005) concerning the eight-week period. Their effect is that, as stated by Finnegan J in Gmemibade, “a separate event can intervene and give rise to the re-exercise or a new exercise of the power of arrest and detention…” (see also Chun Qiang Yu v Minister for Justice Equality and Law Reform (High Court unreported, 31st January 2006, per MacMenamin J.)

22. Okorafor v Governor of Cloverhill Prison and others [2003] WJHC 10479 is the only one of these cases to have reached this Court. In that case, the applicant was actually deported to Nigeria in March 2002 but re-entered the State in July 2003 in breach of the Deportation Order which was still in force. He was then detained again pursuant to s. 5 of the Act. Herbert J responded to the applicant’s argument that his new detention breached the eight-week period laid down by s. 5(6) as follows:

“In my judgment the purpose of Section 5(6)(a) of the Immigration Act, 1999, is to ensure that persons are not kept in custody indefinitely following upon the making of a Detention Order. The provision as to aggregation is necessary to prevent multiple detentions for periods of less than eight weeks. Once the person detained has been deported from the State the operation of Section 5(6)(a) is exhausted. However, should a person deported re-enter the State in breach of the provisions of the Deportation Order, the limitation provisions of Section 5(6)(a) of the Immigration Act, 1996 revive, but only as regards any subsequent period or periods of detention.”

23. The applicant appealed to this Court. His appeal was dismissed for reasons stated in the ex tempore judgment of McGuinness J in Okorafor v Governor of Cloverhill Prison and others (Supreme Court, unreported 10th October 2003). She held that the applicant had “newly breached the deportation order by returning to this country during a period when….the deportation order is still in force so this is a new breach which would give rise to a new arrest under section 5.1 and therefore a new detention.”

24. Okorafor is distinct from the other cases. There was an interval of more than a year between the first and the second periods of detention. The act of returning to the State was a distinct and different type of breach: that of re-entering the State. Herbert J considered that the first detention order had by then been exhausted. I should say, at this point, that I fully agree with the observations of Clarke J regarding the binding effect of all these decisions so far as Birmingham J was concerned.

25. In the present case, the eight-week period commencing on 8th February 2012 had not expired on 29th March, when the appellant was taken from Cloverhill Prison to be deported, fifty days later. He was no longer detained in Cloverhill from that date. However, he was newly detained from the same date at Wheatfield. There was no break in the detention. If the eight-week period is counted from 8th February, it had certainly expired by the date of the application pursuant to Article 40 of the Constitution in the High Court before Birmingham J on 11th April. Section 5(6) says that a “person shall not be detained under this section for a period or periods exceeding 8 weeks in aggregate.”

26. Not only does the subsection prohibit detention for any single period of more than eight weeks, it also prohibits, as Herbert J put it in Okorafor,” multiple detentions for periods of less than eight weeks,” where the total period exceeds eight weeks. The latter aspect is crucial and, to my mind, it puts the matter beyond reasonable dispute. Let us assume that the provision simply read that a: “person shall not be detained under this section for a period exceeding 8 weeks.” In that event, a plausible argument could be advanced to the effect that each period of arrest and detention pursuant to s. 5(1) should be measured separately so that only in the event of a single period of detention exceeding eight weeks would the section be infringed. That argument cannot prevail against the inescapable combined effect of the two phrases: “period or periods”; and “in the aggregate.”

27. Apart from relying on the proposition that there can be a fresh period of detention, based on new facts in accordance with the existing body of High Court case law, the respondent argued for a practical or purposive approach to the interpretation of the subsection.

28. There is no doubt that the egregious behaviour of the appellant in resisting lawful steps to give effect to his deportation demonstrates the often appalling difficulties facing officers of the GNIB in such cases. Similar circumstances presented themselves to the High Court in a number of cases, giving rise to a suggestion that the Court should lean against a construction of the subsection which did not permit a new detention order and a consequent new eight-week period based on a new act of resistance to deportation. MacMenamin J comments on these matters in the judgment he is about to deliver.

29. Before commenting finally on these propositions, I think it is necessary to note that the two successive detention orders affecting the appellant were expressed in identical terms. All amounted to the single ground that the appellant failed to comply with his obligation to leave the State and intended to avoid removal from the State. Nothing in the second Notification of Detention suggested that there was a new ground for the detention.

30. In the final analysis, it is undoubtedly that case that illegal immigrants frequently evade and resist deportation and, as the facts of this case demonstrate, they may very effectively prevent officers who are acting properly and humanely from carrying out their duty and thereby frustrate their deportation.

31. However, there is nothing in subsection 6 to permit a Court to extend or prolong the eight week period on the grounds of new acts of resistance. The eight-week aggregate limit is expressed in unqualified terms. The Court cannot adopt a flexible or purposive interpretation of a provision designed to protect personal liberty, all the more so when such an interpretation would do violence to the clear language of the Oireachtas. I agree with the judgment about to be delivered by Clarke J insofar as it discusses s. 5 of the Interpretation Act, 2005. It is clear that the appellant was not lawfully detained on 11th April 2012, which was more than eight weeks from 8th February 2012. The Court therefore directed his release.

32. A solution to the practical problems arising from this judgment, more fully discussed by MacMenamin J, can only be legislative. It cannot be achieved by judicial contravention of the clear statutory mandate.

JUDGMENT of Mr. Justice MacMenamin delivered the 10th day of May 2012.

1. I agree with the decision in this matter as expressed in the judgments of Fennelly J. and Clarke J. which I have read in draft form. I also agree that the learned High Court judge acted entirely correctly in applying the legal authorities cited to him, and now referred to in Fennelly J.’s judgment. The doctrine of precedent applies in the area of immigration law, as in all other aspects of the law. But I should say now that I find the logic of the two judgments just delivered to be coercive.
2. However, while expressing these views, one cannot be blind to the consequences of the interpretation. The effect of Section 5(6)(a) of the Act of 1999, as now determined, is that the applicant in this case has benefited as a result of his own wrongdoing. His own violent misconduct prevented his orderly deportation from this State to another State.
3. Counsel for the appellant urged that the consequence of that violent conduct should be that the appellant should be charged with an offence in this State as provided for elsewhere under the Act. If found guilty, the consequence of such a conviction might be a term of imprisonment in this State. If charged, the individual in question may be entitled to bail. Whether on bail, in custody, or at liberty, the irony is that any such outcome would be one which surely negates the intention behind the legislation. That intention is that the individual in question be deported from this State. Can this have been the intention of the Oireachtas?
4. These considerations, and the avoidance of such an anomaly, were the basis for the interpretation of the Section in question in Chun Qiang Yu v. Minister for Justice Unreported MacMenamin J., dated 31st January 2006, wherein I followed the decision in Gdemibade v. Minister for Justice and Others Finnegan J., 30th November 2005 (see R.O. v. The Minister for Justice The High Court Smyth J. 11th July 2002). A court is entitled to have regard to an anomalous outcome in the interpretation of a statutory provision but as Clarke J. points out an anomaly is not the only criterion in interpreting legislation. The task of a court is to interpret the law, not to legislate.
5. This court is not bound by the High Court jurisprudence, and may look at the question anew. The arguments advanced in this appeal, based on a literal interpretation of the Act, laid a particular emphasis on literal interpretation of the words “period or periods” and “in aggregate” in Section 5(6) of the Act of 1999. In effect, the case was made that for the time for detention to commence again there must be an entirely fresh ground, a “break period” to give rise to a renewed basis for detention, as opposed to new facts or events arising during the eight week period of that detention. In Fennelly J.’s judgment there are important passages quoted from the judgment in Re Illegal Immigrants (Trafficking) Bill 1999 [2000] 2 I.R. Those passages, now brought to the attention of this court, add force to the interpretation of the Section which now must be imparted to the Section. I now find the applicant’s argument is persuasive, as now supported by that authority, and the consequence must be accepted. That is the rule of law.
6. But there remain unresolved questions. On the literal interpretation of the Section, if an individual so conducts himself towards the end of a detention period as to prevent his deportation, what, precisely, are the State authorities to do? Is he simply to be released? Moreover, the contingencies in these situations may not always be clear-cut, or allow for easy categorisation. The Act does not answer these questions. Nonetheless, I too, am now persuaded by the appellant’s argument. There is the fundamental issue of the right to liberty at stake, where, whatever the applicant’s merits, he is entitled to rely on a literal interpretation of the statute.
7. As is pointed out by my colleagues, remediation of the situation must be a matter for the legislature. Clearly a position where a deportation can be defeated by unlawful actions on the part of an individual about to be deported, is one which requires legislative intervention; but in this it might be observed that a decision of this kind involves a balancing of the rights of the state and that of the individual in question having a necessary regard to all the circumstances.

Judgment of Mr. Justice Clarke delivered the 10th May, 2012.


1.1 I agree fully with the judgment delivered by Fennelly J. setting out the reasons why this Court ordered the release of the applicant/appellant ("Mr. Kadri"). In deference to the High Court line of authority which was followed by the trial judge in this case, I wish to add a few additional observations. The first concerns the position in which the trial judge found himself in the light of that line of authority.

2. The Binding Nature of Consistent High Court Case Law

2.1 The jurisprudence of the High Court regarding the proper approach of a judge of that Court when faced with a previous decision of another judge of that Court is consistent. The authorities go back to the decision of Parke J. in Irish Trust Bank v. Central Bank of Ireland [1976-7] I.L.R.M. 50. Similar views have been expressed in my own judgment in In Re Worldport Ireland Limited (In Liquidation) [2005] IEHC 189, by Kearns P. in Brady v. D.P.P. [2010] IEHC 231, and most recently by Cross J. in B.N.J.L. v. Minister for Justice, Equality & Law Reform [2012] IEHC 74 where Worldport was expressly followed.

2.2 It seems to me that that jurisprudence correctly states the proper approach of a High Court judge in such circumstances. A court should not lightly depart from a previous decision of the same court unless there are strong reasons, in accordance with that jurisprudence, for so doing.

2.3 In his judgment Fennelly J. referred to the series of judgments of the High Court on the point in issue in this case. The trial judge considered himself bound by that line of authority. In the light of the case law to which I have earlier referred it seems to me that the trial judge was correct in that approach unless he viewed that line of authority as obviously wrong or having been arrived at without proper consideration of relevant case law or the like. In my view the trial judge was correct in the approach he took. In so finding it does not, of course, follow that this Court, now that the matter has come before it and been fully argued, is likewise constrained. This Court must consider the issue on the merits while of course having proper regard both to the relevant High Court cases and to the one previous decision of this Court on the point being the judgment of McGuinness J. in Okorafor v. Governor of Cloverhill Prison & ors (Supreme Court, unreported, McGuinness J. 10th October, 2003).

2.4 Whatever may be the situation where there is an entirely separate and distinct breach of a deportation order or a relevant notice (such as the return, after more than a year post-deportation, to the jurisdiction of a deportee such as this Court was concerned with in Okorafor) I fully agree with the views expressed by Fennelly J. in his judgment in this case that a fresh incident of the same grounds of breach of a deportation order cannot give rise to an entitlement to commence a second eight week period of detention or, indeed, any further period of detention where the aggregate of the periods exceeds eight weeks. That such a course of action is in breach of the clear wording of s.5(6) seems to me to be clear for the reasons advanced by Fennelly J. The only other issue on which I would wish to add a number of observations derives from the potential impact of the Interpretation Act, 2005 to which I now turn.

3. The Interpretation Act, 2005

3.1 Some reliance was placed by counsel on behalf of the respondent governor on the provisions of the 2005 Act and in particular s.5(1) of same which concerns the proper approach of the court to the construction of ambiguous legislation or legislation in which an obvious mistake may be found.

3.2 Section 5(1) provides as follows:-

        "5.—(1) In construing a provision of any Act (other than a provision
        that relates to the imposition of a penal or other sanction)—

        (a) that is obscure or ambiguous, or

        (b) that on a literal interpretation would be absurd or would fail to reflect the plain intention of—
            in the case of an Act to which paragraph (a) of the definition of “Act” in section 2(1) relates, the Oireachtas, or

            in the case of an Act to which paragraph (b) of that definition relates, the parliament concerned,
        the provision shall be given a construction that reflects the plain intention of the Oireachtas or parliament concerned, as the case may be, where that intention can be ascertained from the Act as a whole."

3.3 There are a number of features of that section which seem to me to be of some importance. First, it should be noted that no argument was addressed which suggested that s.5 had no application to this case because of the exclusion of "penal" provisions from its ambit. That does not, of course, mean that the Court may not be more circumscribed in the scope of its interpretative remit in cases, such as this, which involve personal liberty.

3.4 Second, s.5 is a section which speaks of the court giving a construction or interpretation to relevant provisions. It must be borne in mind, therefore, that the mandate given to the courts by s.5 is one to engage in construction or interpretation rather than rewriting.

3.5 In that context it is, perhaps, of some relevance (without pushing the analogy too far) to consider the extent to which the court has a jurisdiction to correct obvious mistakes in contracts. In considering that area of law in Moorview Developments Limited & ors v. First Active plc & ors [2010] IEHC 275, I noted, at para. 3.5 of my judgment, the following:-

"This aspect of the case concerns what has, in some of the case law, (see for example East v. Pantiles (Plant Hire) Ltd (1981) 263 E.G. 61) been described as “correction of mistakes by construction”. As is clear from East and from the speech of Lord Hoffman in Investors Compensation Scheme Ltd v. Bromwich Building Society [1998] 1 W.L.R. 896, two conditions must be satisfied in order for such a correction to occur. First, there must be a clear mistake. Second, it must be clear what the correction ought to be."

3.6 It seems to me that there is at least a broad similarity between that area of jurisprudence and the intent behind at least aspects of s.5(1) of the Interpretation Act, 2005. It is important to note that the construction which that section requires is one that "reflects the plain intention of (the legislature) where that intention can be ascertained from the Act as a whole". It is clear, therefore, that it not only is necessary that it be obvious that there was a mistake in the sense that a literal reading of the legislation would give rise to an absurdity or would be contrary to the obvious intention of the legislation in question, but also that the true legislative intention can be ascertained. There may well be cases where it may be obvious enough that the legislature has made a mistake but it may not be at all so easy to ascertain what the legislature might have done in the event that the mistake had not occurred.

3.7 Third, it is worth noting that the first part of s.5(1) concerns ambiguity or obscurity. For the reasons advanced by Fennelly J. it seems to me that the wording in this case is clear and does not admit of any ambiguity or obscurity. The second part of the section concerns mistakes in the sense addressed in the previous paragraph. It may well be that there is a difficulty with the fact that the legislation, does not address what is to happen in circumstances such as arose in this case where a detained person, in the latter part of an eight week period, so strenuously resists deportation that it proves impossible to give effect to deportation within the eight week period. That the legislature might have wished to make some provision for such a situation could well be considered likely. However, it seems to me that the construction argued for on behalf of the governor in this case falls foul of s.5(1) in two respects.

3.8 First it does not seem to me that the literal construction is absurd. There were sound policy reasons for imposing a time limit on a form of detention that might, if it could be open-ended, be considered unjust and, possibly, unconstitutional. The reason for imposing a time limit on the aggregate amount of detention was, as Fennelly J. has pointed out and as I agree, for the reasons set out by Herbert J. in the High Court, (unreported, High Court, Herbert J., 30th September, 2003) in Okorafor being to prevent the use of multiple periods to get round the eight week limit. Neither does the imposition of such an eight week limit appear to be contrary to obvious legislative intent.

3.9 This is not, therefore, a case where a literal construction of the legislative measure is absurd or fails to reflect the clear legislative intent. Rather this is a case where it may well be that, had the Oireachtas properly addressed its mind to the question, it might have considered including some additional provisions in the Act to allow the eight week period to be extended in appropriate circumstances. However, it is by no means clear as to what precise provisions would have been included by the Oireachtas had it so addressed that question. Would, for example, it have been considered appropriate to allow the period of eight weeks to be extended without some form of safeguard such as an application to a senior member of An Garda Síochána or a court. Would the extended period necessarily have lasted for a further eight weeks or might it have been appropriate to require some consideration of how long further was necessary, in all the circumstances, to put in place appropriate measures to deal with the situation which had arisen. Who would it have been considered ought have to be satisfied that the real reason for the inability to give effect to the deportation order within the eight week period (including any aggregation of lesser periods) was the deportee him or herself. Should that decision be taken by a senior member of An Garda Síochána or, perhaps, again by a judge.

3.10 I raise all of these questions not for the purposes of indicating that this Court has any necessary role in deciding the answers. Rather I raise them to demonstrate that the precise type of measure which could or should have been put in place to deal with the sort of problems which arose in this case are not a given. The introduction of those measures requires, as Fennelly J. has said, legislation, and cannot be introduced in the detailed manner required by a strained (beyond the point of breaking) interpretation. To use s.5 of the Interpretation Act, 2005 to justify the regime argued for on behalf of the governor would, in my view, be to use (or perhaps abuse) a section which mandates a sensible or purposive construction to, in effect, rewrite the legislation by inserting a series of detailed measures to which the Oireachtas did not address its mind. In my view such a course of action would not be warranted.

4. Conclusion

4.1 For those reasons I agree with the judgment of Fennelly J. and with the order for the release of Mr. Kadri already made by the Court. I would also add my agreement to the judgment about to be delivered by MacMenamin J. and in particular to his characterisation of the current situation as one which requires legislative intervention.

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