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Treaty of Amsterdam amending the Treaty on European Union, the Treaties Establishing the European Communities and Certain Related Acts (1997, in force 1999)

Summary of Provisions Signed/

Ratified

The Treaty of Amsterdam amends the Treaty of the European Union, the Treaties establishing the European Communities and other related acts.

Signed: 02/10/1997

Entered into force: 01/05/1999

Ratified by the Eighteenth Amendment of the Constitution of Ireland. Effected by the Eighteenth Amendment of the Constitution Act, 1998, approved by referendum on 22/05/1998 and signed into law on the 03/06/1998.

Charter of Fundamental Rights (2000, adapted version 2007) Summary of

Provisions

Signed/ Ratified

The European Union Charter of Fundamental Rights sets out in a single text the range of civil, political, economic and social rights of European citizens and all persons resident in the EU.

Chapter 1: Dignity. Chapter 2: Freedoms. Chapter 3: Equality. Chapter 4: Solidarity. Chapter 5: Citizens’ rights. Chapter 6: Justice.

Solemnly proclaimed by the European Parliament, the Council of the European Union, and the European Commission on 07/12/2000.

5.

CASE LAW

T

he amount of Irish asylum and immigration case law that is currently available is in marked contrast to the amount in existence only a decade ago. The economic growth in the State over the past decade has resulted in a dramatic shift towards increased immigration. Responding to this development, and in light of increased numbers of applications for international protection, the legislature has passed a significant amount of new legal measures dealing with immigration and asylum matters.423

At European level, the 1999 Treaty of Amsterdam gave the European Commission increased legislative authority in the immigration and asylum fields, and set the Council the task of passing important legislation in these areas over the ensuing years.424 _{With all of the}

resulting new legislation, many new issues have required judicial interpretation and clarification.

This section consists of summaries of relevant decisions of the High Court and Supreme Court; summaries of important case law from the European Court of Justice, particularly on the matter of residency of non-EU national family members of EU citizens; and summaries of decisions of the Refugee Appeals Tribunal in relation to refugee status determination. The decisions of the European Court of Justice and Superior Courts are binding on lower courts and decision-making bodies. Decisions of the Refugee Appeals Tribunal are not binding, but may be of persuasive value in ensuring consistency in refugee status decision- making.425 _{The body of case law on asylum and immigration law is large,}

and the choice of cases summarised is necessarily selective.

423 _{For example the Refugee Act 1996; the Immigration Acts 1999, 2003, and 2004; and} the European Communities (Eligibility for Protection) Regulations 2006 (S.I. No. 518 of 2006). See section 4.1of this text.

424 _{For example Directive 2003/9/EC (“The Reception Directive”); Regulation (EC)} No. 343/2003 (“The Dublin Regulation”); Directive 2004/83/EC (“The Qualification Directive”); and Directive 2005/85/EC (“The Procedures Directive”). See section 4.2 of this text.

425 _{The Refugee Appeals Tribunal previously refused to allow appellants access its} previous decisions, but appellants now have access to a database of the Tribunal’s previous decisions for the purpose of preparing an appeal. These decisions are not publicly available. The Tribunal also has the power to publish its decisions. The Tribunal has published twenty-two decisions to date.

Many immigration and asylum-related matters are only challengeable by way of a High Court application for judicial review.426 _{The majority of}

the case law referred to in this section arises in this context. Applicants for judicial review must obtain leave of the High Court to seek judicial review, which in itself requires a hearing. The case law consists of decisions dealing both with leave, and substantive applications. In the summaries below it is noted if a decision deals with leave only. It is also noted if a decision is ex tempore (i.e. given at the time of, or soon after, a hearing). Judgments dealing with refugees are referred to in redacted form to avoid identification of the parties, in line with best Court practice

The authors have chosen cases that have proven to be significant in legal practice, and that clarify points of law. The Chapter is divided into thematic sections for ease of reference. The focus of this section is case law up to 2007, though cases from 2008 of particular importance have also been included.

5.1 C

HALLENGES TO

L

EGISLATION AND

B

ILLS

5.1.1 The Aliens Act 1935 and the Aliens Order 1946

Minister for Justice v Wang Zhu Jie [1993] 1 IR 426

Supreme Court, 07/05/1991 High Court, Costello J, 05/10/1990 Description

Plain clothes Gardai [police] entered premises without a warrant, identified themselves and made immigration related enquiries. They arrested Mr. Wang who worked on the premises. The Defendant argued that the arrest was illegal because the Gardai were trespassing when they

426 _{Section 5 of the Illegal Immigrants (Trafficking) Act 2000 specifically provides that} certain decisions made in the asylum and immigration processes cannot be questioned other than by way of judicial review. Section 5 of the 2000 Act also provides special rules for judicial review of such decisions. These rules are more stringent that the normal rules for judicial review. See section 4.1.1.7of this text.

entered. The defence also challenged the legality of the Aliens Order 1946, claiming it was ultra vires the Aliens Act 1935.

The High Court found that the Gardai were legally on the premises because permission to enter the premises was given. The Court also held that arrests were permissible under the 1935 Act. Despite the High Court’s refusal of leave to appeal to the Supreme Court, the applicant sought to appeal, but the Supreme Court found it had no authority to hear the proposed appeal.

Principles

The Aliens Order 1946 is not ultra vires the Aliens Act 1935. Arrests are permissible under the 1935 Act.

Tang & Ors v Minister for Justice & Ors [1996] 2 ILRM 46; [1996] ICLY. 80

Supreme Court, 19/12/1995

Unreported, High Court, Flood J, 11/10/1994 Description

The applicants were Hong Kong nationals with British Hong Kong passports. They arrived in the State lawfully but contravened requirements regarding length of stay and employment. They subsequently came to the attention of the Gardai, and the Department of Justice then refused them permission to remain in the State. The Tangs sought to have this decision quashed by judicial review, arguing that the decision effectively amounted to a deportation order.

The High Court declared Article 13(1) of the Aliens Order 1946 to be ultra vires the powers conferred on the Minister by the 1935 Act because the parent Act did not expressly authorise the Minister to make a deportation order. The Supreme Court reversed this decision on appeal, finding Article 13 of the Aliens Order, 1946 to be within the powers conferred on the Minister by the 1935 Act.

Principles

The provision of Article 13 of the Aliens Order 1946 is within the powers conferred on the Minister by the Aliens Act 1935.

Laurentiu v Minister for Justice, Equality and Law Reform & Ors

In document Estudio sobre la influencia del film, los viajes del viento, en el imaginario turístico de la Región Caribe colombiana (página 53-116)