FEROZA MAUDARBOCUS MOOLNA, CSK
Former Chief State Attorney at the Attorney General’s Office
Was the removal of Mr Peter Uricek, a Slovakian national, by Slovakian Authorities lawful under the Immigration Act, as claimed by the Prime Minister’s Office? According to a communiqué from the PMO dated 30 April 2022, Mr Uricek, was not deported nor extradited but was « lawfully removed » from our territory on 26 April 2022 by Slovakian law enforcement after the Mauritian police had handed him over to them.
Following the issue of an Interpol Red Notice, the Attorney General had entered extradition proceedings before the District Court of Port Louis against Mr Uricek, who was wanted in Slovakia for drug trafficking. However, the PMO mentions that it was advised that relevant sections of the Immigration Act would operate independently of any such proceedings under the Extradition Act. The PMO thus considered that it was not bound to wait for the outcome of the pending case for extradition before carrying on with a procedure under the Immigration Act. Be that as it may, was the removal actually carried out in compliance with the Immigration Act ?
The PMO communiqué states that Mr Uricek had been granted an occupational permit on 19 April 2019 and that the PMO decided not to renew the said permit on 15 April 2022. Under section 6 of the Immigration Act, Mr Uricek was thus deprived of his status of resident and a notice was sent to him on 26 April 2022 as he was now considered to be a prohibited immigrant. Once a person becomes a prohibited immigrant, what does the law provide for his removal from the territory? The Immigration Act is silent on this point. In practice, most foreign nationals who lose their status of residents leave the country voluntarily. But if a person refuses to do so, the legal tool to obtain their removal is to be found in the Deportation Act. Its Section 5 provides that the Minister may make a deportation order against a prohibited immigrant. The law requires that a notice be served upon the prohibited immigrant specifying the detailed grounds for the procedure and requiring him to show cause, before a Magistrate in Chambers and at a time specified in the notice, why the order for deportation should not be made. Therefore, even a prohibited immigrant is not automatically deported. The PMO acknowledges that it did not follow this procedure under the Deportation Act, which could have resulted ultimately in Mr Uricek being forcibly expelled from the country by the Mauritian authorities.
Since neither the Immigration Act nor the Deportation Act make mention of any handing over of a prohibited immigrant to a foreign Authority, the first question which arises is how did Mr Uricek come to be under the custody of the police before being « handed over » to the Slovakian authorities ? On what basis was Mr Uricek forcibly put in a police car bound for the airport ? The communiqué does not say whether Mr Peter Uricek was arrested and whether was there a warrant of arrest issued by a Magistrate at the time he was handed over, simply because no such warrant existed or could be justified in the circumstances.
The next question is whether Slovakian Authorities have any jurisdiction to act within the Mauritian territory. It is a basic rule of law that a foreign authority has no jurisdiction to operate in another territory, such as a foreign police officer does not have jurisdiction to investigate nor arrest any person in Mauritius. The only potential area of such an intervention of a foreign law enforcement agent on Mauritian territory is the case where a magistrate having found a person liable for extradition under the Extradition Act, the Attorney General issues a warrant to authorise a foreign escort officer to accompany that person out of Mauritius. Since there was no such extradition warrant, under what law has the Mauritian police handed over Mr. Uricek to the Slovakian authority?
We thus fail to see any legal basis for the « handing over » of Mr Uricek to Slovakian authorities by the Mauritian police on our national territory and his ensuing removal. It seems that neither did the police have a right to forcibly take him to that plane, nor did the Slovakian officers have a right to compel him to leave the country with them. It is a fundamental principle of our Constitution that no person or authority, be it the police, can restrain the freedom of movement of an individual without a law authorising it.
The PMO’s communiqué tries to justify the flouting of the Interim Order of the Judge of the Supreme Court by invoking the Immigration Act but fails to convince. It also tries to justify its acts by saying there was no Order against the Police. This argument cannot stand, as a police officer is a préposé of the State and any Order directed against the State is meant to be complied by each and every préposé of the State, the more so as the police officers were also purporting to act under the powers delegated under the Immigration Act to the Passport and Immigration Officer.
True it is, Mr Uricek was a fugitive and a prohibited immigrant. He may possibly be a dangerous drug trafficker. But the Extradition Act and the Deportation Act are not meant for “des enfants de choeur” but precisely to cater for people like Mr. Uricek and for their removal from the territory of Mauritius under the supervision of the Courts. Any shortcut from this is a breach of the rule of law.