An Irish man whose father is critically ill is seeking a High Court inquiry in a bid to avoid having to undergo mandatory hotel quarantine on arrival in Dublin Airport from New York on Saturday morning.
Colm Bates’ 91-year-old father is “on his deathbed” and the purpose of New York-based Mr Bates’ journey to Ireland is to see his father before he dies, the court was told on Friday.
Mr Bates’ mother died last April and, because of Covid-19 restrictions on US flights, he was unable to get home for her funeral, the court heard. Mr Bates was very distressed by that and does not want a repeat situation in relation to his father, his counsel Micheál P. O Higgins SC said.
Constitution
When the inquiry, under Article 40 of the Constitution, was sought ex parte (one side only represented) at the High Court about 3.30pm, Mr Bates was said to be leaving on a flight from New York on Friday night due to arrive at Dublin Airport at 4.50am with a return flight booked for May 7th.
In exchanges with Mr Justice Anthony Barr, Mr O’Higgins agreed Mr Bates could seek a State liaison officer on arrival at Dublin Airport with a view to getting an appeals officer to review his situation to get an exemption from mandatory hotel quarantine (MHQ). There was no guarantee a review would result in success, counsel said.
He agreed Mr Bates is not currently detained, accepted Article 40 refers to persons in detention but argued legal authorities emphasise the “flexibility and simplicity” of the Article 40 procedure.
Mr Justice Barr queried whether there was authority, from any jurisdiction, to order an inquiry into a prospective detention and said it seemed a “novel” interpretation of Article 40 to direct an inquiry into the lawfulness of a detention when a person is not currently detained.
Tragic circumstances
The judge added he saw the “human” nature of the application, the tragic circumstances and that Mr Bates needed to have the matter quickly addressed.
With a view to staying on "the right side of the law", and to address the circumstances, he adjourned the ex parte application for an Article 40 inquiry to 9am on Saturday, with liberty to serve the papers on the State parties with a view to an early hearing on Saturday of any inquiry.
Earlier, the court heard Mr Bates, an Irish citizen, has lived in New York since 1996 and is project manager for a construction development company.
Mr O’Higgins, instructed by French Kenny solicitors, said the MHQ regime under the Health Act permits an exception to quarantine on urgent humanitarian grounds.
His solicitor wrote last Wednesday to the Department of Health seeking an exemption for Mr Bates on humanitarian grounds. A reply stated he would be required to enter MHQ on his arrival and there was no facility of a review of detention either in advance of travel or in Dublin Airport.
Negative test
Counsel said Mr Bates had returned a negative PCR test 72 hours before the flight and had also received his first Covid-19 vaccination dose.
A consultant had said Mr Bates’ father is critically ill, is not expected to recover and the family had been requested to gather. Family members are permitted to visit the father in hospital in groups of two.
Another factor which compelled Mr Bates to return was that his mother had died in April 2020 but he was unable to travel home then because US airlines could not fly due to Covid-19 restrictions. Mr Bates “deeply and profoundly” regrets he was unable to travel during that time and did not want a repeat situation in relation to his father.
Counsel said he was instructed to challenge the constitutionality of the relevant “blanket and inflexible” law on MHQ if that was necessary but hoped that would not be necessary.
