5.—(1) Subject to F3[section 3A of the Immigration Act 1999] and section 4 of the Criminal Justice (United Nations Convention against Torture) Act 2000, this section applies to—

(a) a non-national to whom leave to land has been refused under Article 5(2) of the Aliens Order 1946 (SR&O 1946 No. 395) (“the Order”),

(b) a non-national who has failed to comply with Article 5(1) of the Order,

(c) a non-national who has entered the State in contravention of Article 6 of the Order,

(d) a non-national deemed to be a person to whom leave to land has been refused under the Order,

F4[(e) a non-national who has failed to comply with section 4(2) of the Immigration Act 2004,

(f) a non-national who has been refused a permission under section 4(3) of that Act,

(g) a non-national who is in the State in contravention of section 5(1) of that Act,

(h) a non-national who has landed in the State in contravention of section 6(1) of that Act,]

whom an immigration officer or a member of the Garda Síochána, with reasonable cause, suspects has been unlawfully in the State for a continuous period of less than 3 months.

F5[(2) (a) Subject to paragraph (b), a person to whom this section applies may be arrested without warrant by an immigration officer or a member of the Garda Síochána, and a person so arrested may be taken to a place referred to in subparagraph (i) or (ii) and detained—

(i) under warrant of that officer or member in a prescribed place and in the custody of the officer of the Minister or member of the Garda Síochána for the time being in charge of that place, or

(ii) for the purposes of subsection (6) and for a period or periods each not exceeding 12 hours—

(I) in a vehicle, for the purposes of bringing the person to the port from which the ship, railway train, road vehicle or aircraft concerned is due to depart, or

(II) within the port referred to in clause (I).]

(b) Paragraph (a) shall not apply to a person who is under the age of 18 years.

(c) If and for so long as the immigration officer or, as the case may be, the member of the Garda Síochána concerned has reasonable grounds for believing that the person is not under the age of 18 years, the provisions of subsection (1) shall apply as if he or she had attained the age of 18 years.

(d) Where an unmarried child under the age of 18 years is in the custody of any person (whether a parent or a person acting in loco parentis or any other person) and such person is detained pursuant to the provisions of this section, the immigration officer or the member of the Garda Síochána concerned shall, without delay, notify the F6[Child and Family Agency] of the detention and of the circumstances thereof.

(3) (a) A person arrested and detained under this section may, subject to subsection (4), be detained only until such time (being as soon as practicable) as he or she is removed from the State in accordance with this section but, in any event, may not be detained for a period exceeding 8 weeks in aggregate.

(b) The following periods shall be excluded in reckoning a period for the purpose of paragraph (a):

(i) any period during which the person is remanded in custody pending a criminal trial or serving a sentence of imprisonment,

(ii) any period spent by the person on board a ship, railway train, road vehicle or aircraft pursuant to this section, and

(iii) if the person has instituted court proceedings challenging the validity of his or her proposed removal from the State, any period spent by the person in a place of detention between the date of the institution of the proceedings and the date of their final determination including, where notice of appeal is given, the period between the giving thereof and the final determination of the appeal or any further appeal therefrom or the withdrawal of the appeal or, as appropriate, the expiry of the ordinary time for instituting any such appeal.

(4) Where a person detained under this section institutes court proceedings challenging the validity of his or her proposed removal from the State, the court hearing those proceedings or any appeal therefrom may, on application to it, determine whether the person shall continue to be detained or shall be released, and may make any such release subject to such conditions as it considers appropriate, including, but without prejudice to the generality of the foregoing, any one or more of the following conditions:

(a) that the person reside or remain in a particular district or place in the State;

(b) that he or she report to a specified Garda Síochána station or immigration officer at specified intervals;

(c) that he or she surrender any passport or travel document in his or her possession.

(5) A person to whom this section applies shall be removed by an immigration officer or a member of the Garda Síochána (at the option of the officer or member)—

(a) subject to paragraph (b), to the state where he or she last embarked (whether by land, sea or air) for the State, if known,

(b) where the person was refused leave to land in circumstances where he or she arrived at a port in the State for the purpose of passing through the State in order to travel to another state and either—

(i) the carrier who was to take the person to the country of destination refused to take the person on board, or

(ii) the authorities of the state of destination have refused the person entry into that state and have sent him or her back to the State,

to the state of the person's original embarkation for the State,

(c) to the state which issued the passport or travel document held by the person, if any,

(d) to the country of nationality of the person, so far as it appears to the immigration officer or the member of the Garda Síochána concerned, or

(e) to any country to which the person is guaranteed entry.

(6) A person arrested and detained under subsection (2) may be placed on a vehicle about to leave the State for a place referred to in subsection (5) by an immigration officer or a member of the Garda Síochána, and shall be deemed to be in lawful custody while so detained and until the vehicle leaves the State.

(7) The person in charge of a vehicle bound for a place referred to in subsection (5) shall, if so required by an immigration officer or a member of the Garda Síochána, receive a person to whom this section applies and his or her dependants, if any, on board such vehicle and afford him or her and his or her dependants proper accommodation and maintenance during the journey.

(8) A person to whom this section applies—

(a) shall not, by act or omission, obstruct or hinder an immigration officer or a member of the Garda Síochána engaged in the removal of a person from the State pursuant to this section,

(b) shall, for the purpose of facilitating his or her removal from the State, co-operate in any way necessary to enable an immigration officer or a member of the Garda Síochána engaged in the removal of the person to obtain a travel document, ticket or other document required for the purpose of such removal and, in particular, shall comply with any request from the immigration officer or, as the case may be, the member of the Garda Síochána to sign a document in that connection or to affix his or her fingerprints to such a document,

(c) shall not behave in a manner likely to endanger the safety of himself or herself or the safety of others in the course of his or her removal from the State.

(9) A person who contravenes subsection (8) shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding €3,000 or to imprisonment for a term not exceeding 12 months or to both.

(10)  (a) This subsection applies where the identity of the carrier in whose vehicle a person to whom this section applies arrived in the State is known.

(b) An immigration officer or a member of the Garda Síochána may give a direction in writing in the prescribed form (or in a form to the like effect) to the carrier concerned to remove the person concerned, without delay, at no expense to the State, to a place referred to in subsection (5), and the carrier shall comply with any such direction.

(c) A direction under paragraph (b) may specify, at the option of the person giving the direction, that the carrier remove the person concerned by transporting him or her in a vehicle under his or her control or by arranging with another carrier for the removal of the person concerned.

(d) Where the carrier fails or is unable to comply without delay with a direction under paragraph (b), the immigration officer or member of the Garda Síochána concerned may make alternative arrangements for the removal of the person to a place referred to in subsection (5).

(e) Where alternative arrangements are made pursuant to paragraph (d), the costs incurred by the Minister in respect of the maintenance, detention or removal of the person concerned may be recovered from the carrier as a simple contract debt in any court of competent jurisdiction.

(11) A person who fails to comply with a direction under subsection (10) shall be guilty of an offence and shall be liable—

(a) on summary conviction to a fine not exceeding €3,000 or to imprisonment for a term not exceeding 12 months or to both, or

(b) on conviction on indictment to a fine not exceeding €50,000 or imprisonment for a term not exceeding five years or both.

(12) A member of the Garda Síochána may arrest without warrant any person whom the member suspects of having committed an offence under subsection (9) or (11).

(13) The following provisions of the Order are revoked:

(a) paragraphs (4) and (5) of Article 5,

(b) Article 6(3),

(c) paragraphs (7) and (8) of Article 7, and

(d) the Fourth Schedule.

(14) Where, immediately before the commencement of subsection (13), a person was detained under Article 5 of the Order in a place specified in the Fourth Schedule to the Order, his or her detention in that place shall be regarded as authorised by virtue of this section and this Act shall apply accordingly, and any period of detention under that Article shall be included in reckoning a period for the purpose of subsection (3) (a).