78.         The Immigration Act 1999 is amended by the substitution of the following for section 5:

“5. (1) 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 leave the State within the time specified in the order,

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

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

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

(e) intends to avoid removal from the State,

the officer or member may arrest the person without warrant, and a person so arrested may be taken to a place referred to in subsection (3) and detained in the place in accordance with that subsection.

(2) Where a person against whom a deportation order is in force is serving a term of imprisonment in a prison or place of detention, an immigration officer or a member of the Garda Síochána may, immediately on completion by the person of the term of imprisonment, arrest the person without warrant and detain him or her in accordance with subsection (3).

(3) A person who is arrested and detained under subsection (1) or (2) may be detained—

(a) in a prescribed place, or

(b) for the purpose of his or her being placed in accordance with subsection (4) 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 subparagraph (i).

(4) A person arrested and detained under subsection (1) or (2) may be placed on a ship, railway train, road vehicle or aircraft about to leave the State by an immigration officer or a member of the Garda Síochána, and shall be deemed to be in lawful custody whilst so detained and until the ship, railway train, road vehicle or aircraft leaves the State.

(5) The master of any ship and the person in charge of any railway train, road vehicle or aircraft bound for any place outside the State shall, if so required by an immigration officer or a member of the Garda Síochána, receive a person against whom a deportation order has been made and his or her dependants, if any, on board such ship, railway train, road vehicle or aircraft and afford him or her and his or her dependants proper accommodation and maintenance during the journey.

(6) (a) Subsections (1) and (2) shall not apply to a person who is under the age of 18 years.

(b) 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 subsections (1) and (2) shall apply as if he or she had attained the age of 18 years.

(c) 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 Child and Family Agency of the detention and of the circumstances thereof.

(7) Where a person detained under this section institutes court proceedings challenging the validity of the deportation order concerned, or of a decision by the Minister under section 3(11) in relation to the order, 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.

(8) (a) Subject to subsections (9) and (10), a person shall not be detained under this section for a period or periods 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 in a vehicle referred to in subsection (3)(b)(i) or 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 the deportation order concerned, or a decision by the Minister under section 3(11) in relation to the order, 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.

(c) Periods of detention of a person under this section may be aggregated for the purposes of paragraph (a) only where the person concerned has, between the expiry of the earliest occurring period and the commencement of the latest occurring period, not left the State.

(9) (a) This paragraph applies to a person against whom a deportation order is in force who—

(i) has previously been detained under this section, and

(ii) not having left the State since the expiry of the latest period of his or her detention referred to in subparagraph (i), is arrested and detained under subsection (1) or (2).

(b) Where the aggregate of the period or periods of his or her detention referred to in paragraph (a)(i) and the period of his or her detention referred to in paragraph (a)(ii) is 8 weeks, a person to whom paragraph (a) applies shall continue to be detained under this section only with the leave of a judge of the District Court.

(c) Where the detention of a person is authorised under paragraph (b), the period of his or her detention referred to in paragraph (a)(i) shall be excluded in reckoning, for the purposes of subsection (8)(a), the period of his or her detention referred to in paragraph (a)(ii).

(10) (a) Paragraph (b) shall apply to the arrest and detention under this section of a person who has previously been detained under this section, where the period, or the aggregate of the periods, of the previous detention is 8 weeks or more.

(b) Where a person to whom paragraph (a) applies is arrested and detained under subsection (1) or (2) —

(i) he or she shall, as soon as practicable, be brought before a judge of the District Court, and

(ii) he or she shall continue to be detained under this section only with the leave of a judge of the District Court.

(11) For the purposes of arresting a person under subsection (1) or (2), the immigration officer or member of An Garda Síochána may enter (if necessary, by use of reasonable force) and search any premises (including a dwelling) where the person is or where the immigration officer or the member, with reasonable cause, suspects that person to be, and where the premises is a dwelling, the immigration officer or the member shall not, unless acting with the consent of an occupier of the dwelling or other person who appears to the immigration officer or the member to be in charge of the dwelling, enter that dwelling unless—

(a) the person ordinarily resides at that dwelling, or

(b) he or she believes on reasonable grounds that the person is within the dwelling.”