S.I. No. 344/2000 - Refugee Act, 1996 (Places and Conditions of Detention) Regulations, 2000.

I, JOHN O'DONOGHUE, T.D., Minister for Justice, Equality and Law Reform, in exercise of the powers conferred on me by section 9 of the Refugee Act, 1996 (as adapted by the Justice (Alteration of Name and Department and Title of Minister) Order, 1997 ( S.I. No. 298 of 1997 )), hereby make the following Regulations:

Part 1

Places of Detention and General

Short title and commencement

1. (1) These Regulations may be cited as Refugee Act, 1996 (Places and Conditions of Detention) Regulations, 2000.

(2) These Regulations shall come into operation on 20 November 2000.

Interpretation

2. (1) In these Regulations, unless the context otherwise requires—

“the Act” means the Refugee Act, 1996 (No. 17 of 1996), as amended by the Immigration Act, 1999 (No. 22 of 1999), and the Illegal Immigrants (Trafficking) Act, 2000 (No. 29 of 2000);

“detainee” means a person detained pursuant to section 9 of the Act.

(2) In these Regulations—

(a) a reference to a Regulation or Schedule is a reference to a Regulation in or Schedule to these Regulations, unless it is indicated that a reference to some other Regulation or Schedule is intended, and

(b) a reference to a paragraph or a subparagraph is a reference to a paragraph or a subparagraph of the Regulation or Schedule in which the reference occurs unless it is indicated that a reference to some other paragraph or subparagraph is intended.

Places of detention

3. The places specified in Parts 1 and 2 of the Schedule are hereby prescribed for the purposes of section 9(8) of the Act.

General principles for detention

4. In relation to the detention of a detainee regard shall be had to the following general principles:

(a) due respect shall be had for the personal rights of detainees and their dignity as human persons, and regard shall be had for the special needs of any of them who may be under a physical or mental disability, while complying with the obligation to prevent escapes from detention;

(b) where a detainee is in the State as a member of a family group, regard shall be had for the right of the detainee to maintain reasonable contact with the other members of that group, whether other members of the group are also detained or not, subject to the requirements of safety and security and the availability of accommodation in suitable places specified in the Schedule;

(c) information regarding a detainee shall not be conveyed to the consular authorities of the state from which the detainee claims to be fleeing, and contact shall not be made with those authorities, except at the express request, or with the express consent, in writing of the detainee.

Notice to detainee

5. (1) The information required by section 10 of the Act to be given to a detainee shall be given by way of a written notice.

(2) The notice shall also state—

(a) that the detainee's detention will be governed by the principles set out in Regulation 4;

(b) that the detainee may be detained in a station or a prison or place of detention;

(c) that detention in a station is subject to the time-limits in Regulation 11;

(d) that if detained in a station, the detainee may be searched in acordance with Regulation 15;

(e) that if detained in a station, requests by the detainee for access to a solicitor will be dealt with in accordance with Regulation 16(5) and (6); and

(f) that if detained in a prison or other place of detention, the detainee will be subject to the same conditions as a person awaiting trial.

Part 2

Detention in Prisons etc.

Application of this Part

6. This Part applies in relation to any detainee detained in a place specified in Part 1 of the Schedule.

Conditions of detention

7. Rules 189 to 213 of the Rules for the Government of Prisons, 1947 (S.R.& O. 1947 No. 320) shall apply to a detainee as they apply to persons referred to in Rule 189(d) of those Rules.

Transfers

8. A detainee may be transferred from any place specified in Part 1 of the Schedule to any other place specified in Part 1 or Part 2 of the said Schedule.

Part 3

Detention in Garda Síochána stations

Application of this Part

9. This Part applies in relation to any detainee detained in a station.

Definitions

10. (1) In this Part—

“the Custody Regulations” means the Criminal Justice Act, 1984 (Treatment of Persons in Custody in Garda Síochána Stations) Regulations, 1987 ( S.I. No. 119 of 1987 ),

“district” means a Garda Síochána district;

“member” means a member of the Garda Síochána;

“member in charge” has the meaning assigned to it by the Custody Regulations and includes a member authorised under regulation 5(4) of the Custody Regulations;

“station” means a Garda Síochána station;

“superintendent” has the meaning assigned to it by the Custody Regulations.

(2) References in this Part to the recording of information shall be construed as meaning its recording in the detention record.

Time limit on detention in Garda station

11. (1) A person shall not be detained under these Regulations in a station or stations for any continuous period longer than 48 hours, or for any more than two consecutive overnight stays.

(2) For the purposes of paragraph (1)—

(a) a period shall be deemed to be continuous if during the time from the commencement of the period the detainee has been elsewhere than in a station for less than three hours in total; and

(b) an “overnight stay” means a stay of or exceeding 4 hours which includes any time between midnight and 4 a.m.

Duties of member in charge

12. (1) The member in charge of a station shall be responsible for overseeing the application of this Part in relation to detainees in the station and for that purpose shall visit them from time to time and make any necessary enquiries.

(2) Paragraph (1) is without prejudice to the responsibilities and duties of any other member in relation to detained persons.

(3) Where it appears to the member in charge that a direction given or action taken by a member of higher rank is inconsistent with the proper application of these Regulations, he or she shall inform that member accordingly and, unless the matter is resolved, report it without delay to another member of or above the rank of superintendent.

Detention Record

13. (1) A record (in these Regulations referred to as a detention record) shall be kept in respect of each person detained.

(2) The member in charge shall record or cause to be recorded in the detention record as soon as practicable such information as is required to be recorded by these Regulations. Each entry in the record shall be signed or initialled by the member making it.

(3) Where a detained person is transferred to another station, the member in charge of the station from where the person is transferred shall send with him or her the detention record relating to him or her, or a copy of it, to the member in charge of that other station.

(4) Without prejudice to the responsibility of any other member for the accuracy and completeness of any entry which he or she has made in a detention record, the member in charge shall be responsible for the accuracy and completeness of all entries made in the detention record while he or she is the member in charge.

(5) Paragraph (2) does not apply to a record referred to in Regulation 16(4).

Detained person

14. In relation to a detainee a record shall be made of—

(a) the name, address and nationality of the person, to the extent that that can be established;

(b) where the detention is pursuant to section 9(8) or (13) of the Act—

(i) the date and time of detention and the identity of the detaining member or immigration officer, and

(ii) the subsection and paragraph or paragraphs of section 9 of the Act on foot of which the detention has been made;

(c) the time of arrival at the station; and

(d) any relevant particulars relating to the physical or mental condition of the detainee.

Searches

15. (1) The member in charge shall search or cause to have searched the detainee with a view to removing from him or her any item which might be a danger to the safety or security of the detainee or of any other person in the station or is a threat to hygiene.

(2) Where a detainee is searched the following shall apply:

(a) the member conducting the search shall ensure, so far as practicable, that the detainee understands the reason for the search and that it is conducted with due respect for the person being searched;

(b) the detainee shall not be searched by a person (other than a doctor) of the opposite sex;

(c) where a search involves removal of clothing, other than headgear or a coat, jacket, glove or similar article of clothing, no person of the opposite sex shall be present unless either that person is a doctor or the member in charge considers that the presence of that person is necessary by reason of the violent conduct of the person to be searched;

(d) a search involving removal of underclothing shall, where practicable, be conducted by a doctor;

(e) where clothing or footwear is retained, replacements of a reasonable standard shall be provided;

(f) a record shall be made of the search including the name of the person conducting the search and the names of those present;

(g) particulars of any property taken from or handed over by the detainee shall be recorded. The detainee shall be asked to sign the record of such property as being correct. Refusal to do so shall be recorded at the time of the refusal.

Information to third parties

16. (1) Information as to the station where a detained person is detained shall be given—

(a) on request, to the High Commissioner, to the Commissioner, to the Tribunal, to the Minister or to the detainee's solicitor;

(b) if the detainee consents and the member in charge is satisfied that giving the information will not prejudice the detainee's safe custody or the safety of any other person, in response to an enquiry from any person.

(2) As soon as practicable after a detained person has been brought to a station other than a district headquarters, the member in charge shall notify the district headquarters or cause it to be notified accordingly and shall also, as soon as practicable, notify the district headquarters if the detainee is transferred to another place listed in the Schedule or ceases to be in the custody of the Garda Síochána.

(3) A notification to a district headquarters under this Regulation and the time of the notification shall be recorded.

(4) A record shall be kept in each district headquarters of persons whose whereabouts have been notified to it under this Regulation and of the times of the notifications.

(5) Where the detainee has asked for a solicitor or has asked that another person reasonably named by him or her should be notified of the detention in the station concerned, the member in charge shall notify or cause to be notified the solicitor or that person—

(a) if the request is made between 9 a.m. and 6 p.m. on a normal working day (Monday to Friday, excluding bank holidays) as soon as practicable; or

(b) if the request is made at any other time, as soon as practicable during the next available period of 9 a.m. to 6.p.m. on a normal working day.

(6) Notwithstanding paragraph (5), a detainee shall not be brought before a court or removed from the State without having first had the opportunity, at his or her request, to consult with his or her solicitor.

(7) Where a detainee is being transferred to another place listed in the Schedule, the member in charge shall inform any person who has been notified or informed under paragraph (5), or cause that person to be informed, of the transfer as soon as practicable.

(8) (a) In this Regulation, “district headquarters” means the Garda Síochána headquarters for a district.

(b) In relation to the Dublin Metropolitan Area, references to a district headquarters in this Regulation shall be deemed to refer to any station for the time being standing designated under Regulation 10(6) of the Custody Regulations.

Visits and communications

17. (1) A detainee shall have reasonable access to a solicitor of his or her choice and shall be enabled to communicate with him or her privately.

(2) Where a detainee has not had access to a solicitor in accordance with paragraph (1) and a solicitor whose presence has not been requested by the detainee presents himself or herself at the station and informs the member in charge that he or she wishes to visit the detainee, the detainee shall be asked if he or she wishes to consult the solicitor and if he or she does so wish, paragraph (1) shall apply accordingly.

(3) A consultation with a solicitor may take place in the sight but out of the hearing of a member.

(4) A detainee may receive a visit from a relative, friend or other person with an interest in his or her welfare provided the detainee consents and the member in charge is satisfied that the visit can be adequately supervised and that it will not be prejudicial to the interests of justice.

(5) A detainee may make a telephone call of reasonable duration free of charge to a person reasonably named by him or her or send a letter (for which purpose writing materials and, where necessary, postage stamps shall be supplied on request).

Treatment while in detention

18. (1) A detainee shall be allowed such reasonable time for rest as is necessary.

(2) A detainee shall be provided with such meals as are necessary and, in any case, at least two light meals and one main meal in any twenty-four hour period. The detainee may have meals supplied at his or her own expense where it is practicable for the member in charge to arrange this.

(3) Access to toilet facilities shall be provided for a detainee.

(4) Where it is necessary to place persons in cells, as far as practicable not more than one person shall be placed in each cell. Persons of the opposite sex shall not be placed in a cell together. A violent person shall not be placed in a cell with other persons if this can be avoided. A detainee shall not be placed in a cell with other persons who are not detainees if this can be avoided.

(5) Where a person is kept in a cell, a member shall visit him or her at intervals of approximately half an hour. A drunken person or a person under the influence of drugs shall be visited and spoken to and if necessary roused for this purpose at intervals of approximately a quarter of an hour for a period of two hours or longer if his or her condition warrants it.

(6) A member shall be accompanied when visiting a person of the opposite sex who is alone in a cell.

Detainees not to be ill-treated

19. (1) No member shall subject a detainee to ill-treatment of any kind or the threat of ill-treatment (whether against the detainee, the detainee's family or any person connected with him or her) or permit any other person to do so.

(2) No member shall use force against a detainee except such reasonable force as is necessary—

(a) in self-defence;

(b) to secure compliance with lawful directions;

(c) to prevent escape; or

(d) to restrain him or her from injuring himself or herself or any other person, damaging property or destroying or interfering with evidence.

(3) Regulation 20(3) to (7) of she Custody Regulations shall apply to a detainee as it applies in the circumstances mentioned in the said paragraph (3) with any necessary modifications.

Medical treatment

20. Regulation 21 of the Custody Regulations shall apply to detainees in a station as it applies in the circumstances specified in the said Regulation 21 with any necessary modifications.

Other matters to be recorded

21. Particular relating to any of the following matters (including the relevant time and the action if any taken by a member in relation thereto) shall be recorded:

(a) visits to detainees by the member in charge or other members;

(b) any other visits to them;

(c) telephone and other enquiries concerning them;

(d) telephone calls made or letters sent by them;

(e) any requests made by them or by persons attending at the station and seeking to visit them;

(f) meals supplied to them;

(g) the ending of their detention in the station, whether by transfer to another place of detention, release on foot of a court order or otherwise.

Preservation of detention records

22. (1) Detention records shall be preserved for at least twelve months or, if any proceedings to which a detention record is relevant are instituted or any complaint is made in respect of the conduct of a member while a person was detained, until the final determination of the proceedings or the complaint, whichever is the later.

(2) When a person ceases to be a detainee, he or she or his or her legal respresentative shall, on request made within twelve months thereafter, be supplied with a copy of the detention record relating to him or her or of such entries in it as he or she may specify.

Schedule

Part 1

Castlerea Place of Detention

Central Mental Hospital, Dundrum

Cloverhill Prison

Cork Prison

Limerick Prison

The Midlands Prison

Mountjoy Prison

Saint Patrick's Institution, Dublin

The Training Unit, Glengariff Parade, Dublin

Wheatfield Place of Detention, Dublin.

Part 2

Bridewell Garda Síochána Station, Cork

Bridewell Garda Síochána Station, Dublin

Cavan Garda Síochána Station

Drogheda Garda Síochána Station

Dundalk Garda Síochána Station

Dún Laoghaire Garda Síochána Station

Ennis Garda Síochána Station

Fitzgibbon Street Garda Síochána Station, Dublin

Mill Street Garda Síochána Station, Galway

Henry Street Garda Síochána Station, Limerick

Killarney Garda Síochána Station

Letterkenny Garda Síochána Station

Monaghan Garda Síochána Station

New Ross Garda Síochána Station

Santry Garda Síochána Station

Shannon Airport Garda Síochána Station

Sligo Garda Síochána Station

Store Street Garda Síochána Station, Dublin

Swinford Garda Síochána Station

Togher Garda Síochána Station, Cork

Waterford Garda Síochána Station

Wexford Garda Síochána Station

EXPLANATORY NOTE.

(This note is not part of the Instrument and does not purport to be a legal interpretation.)

These regulations set out the places in which persons detained under section 9 (8) or 9 (13) of the Refugee Act 1996 may be detained. They also fulfil the obligation at section 9(10) of the Act to make regulations providing for the treatment of such persons while in detention.