Tipo de estudio

Supreme Court, 20/05/1999

Unreported, High Court, Geoghegan J, 22/01/1999 Description

The State appealed against a decision of the High Court that found that Section 5(1)(e) of the Aliens Act 1935 was unconstitutional. The High Court had found that this Section unconstitutionally delegated the power of deportation to the Minister when it was essentially a legislative measure.

The Supreme Court upheld the finding that Section 5 of the Aliens Act 1935 was unconstitutional and confirmed that the Minister could not have a legislative power in relation to deportation unless some provision was made in the parent Act. The Court also held that Article 13(1) of the Aliens Order 1946 was beyond the powers of the 1935 Act, and also contrary to the Constitution because it purported to confer a power to make deportation orders on the Minister.

Principles

Section 5(1)(e) of the Aliens Act 1935 was unconstitutional in the manner in which it gave the Minister for Justice the power to deport.427

5.1.2 The Illegal Immigrants Trafficking Bill 1999

Article 26 and the Illegal Immigrants (Trafficking) Bill 1999 [2000] 2 IR 360

Supreme Court, 28/08/2000 Description

The President of Ireland referred the Illegal Immigrants (Trafficking) Bill 1999 to the Supreme Court to consider whether the Bill was unconstitutional. The Court held that none of the Sections in question were unconstitutional. The Court held that the time limit for judicial review under Section 5 was 14 days, not 14 working days, and that the

427 _{The Immigration Act 1999 now provides the Minister for Justice, Equality and Law} Reform with a power to deport.

possibility of an extension of time provided for under Section 5(2)(a) was “wide and ample enough to avoid injustice where an applicant has been unable through no fault of his or hers, or for other good and sufficient reason, to bring the application within the fourteen day period.” The Supreme Court also upheld the legality of Section 10 of the Bill, which provided for detention, on the basis that the safeguards that existed in the Bill were adequate to meet the requirements of the Constitution. The validity of the provisions of Section 10(c) of the Bill was upheld. The Supreme Court held that the interpretation of the phrase “substantial grounds” to mean reasonable, arguable and weighty, and not trivial or tenuous, was appropriate.

Principles

The Illegal Immigrants (Trafficking) Bill 1999 (enacted 2000) was not unconstitutional.

Leontjava and Chang v Director of Public Prosecutions [2005] 1 ILRM

Supreme Court, 24/06/2004

Unreported, High Court, Finlay Geoghegan J, 22/01/2004 Description

Until 1999 the Aliens Act (1935) had been the primary legislation governing the operation of the State’s immigration controls. Orders made under Section 5 of that Act (principally the Aliens Order 1946 as amended by an extensive series of later orders) set out a detailed scheme for controlling the entry of non-nationals into the State, including provisions granting permission to be in the State, requiring non-nationals to register periodically with the Garda Síochána (police), requiring the production of passports or identification, and enabling deportation. In the instant case, the first-named applicant had been arrested on the basis that she had broken a condition of her leave to land in the State. The second-named applicant was arrested on the basis, inter alia, that he had failed to produce sufficient identification when called upon to do so by the Gardai. Both applicants were charged with breaches of the Aliens Order 1946 and the Immigration Act 1999. The applicants issued judicial review proceedings to prohibit their trials, contending that the relevant provisions were invalid and unconstitutional. Specifically, they contended that the Aliens Order 1946 was ultra vires the Aliens Act 1935, and that

Section 2 of the Immigration Act 1999 was unconstitutional in that it attempted to delegate legislative functions to the Executive.

The High Court granted orders of prohibition, and declared that Article. 5(6) of the Aliens Order 1946 (as inserted by Article 3 of the Aliens (Amendment) Order 1975) was ultra vires Section 5(1) of the Aliens Act 1935, and that Section 2 of the Immigration Act 1999 was repugnant to the Constitution. The Court essentially found that the Order was created by Ministerial sanction, circumventing the Constitutional process of creating primary legislation, and that Section 2 of the 1999 Act unconstitutionally purported to grant the 1946 Order statutory effect. As a result of the High Court’s judgment, orders made pursuant to the Aliens Act were generally susceptible to constitutional challenge. The DPP appealed the High Court’s judgment to the Supreme Court.

The Supreme Court reversed much of the High Court’s judgment, and particularly with regard to Section 5(1) of the Aliens Act 1935, and Section 2 of the Immigration Act 1999, and held that the Oireachtas was entitled to make legislation “by reference” to material not contained in the body of an act itself, and that the applicants had not discharged the onus on them of proving that Section 2 of the Immigration Act 1999 was unconstitutional.

Principles

The Oireachtas is entitled to make legislation “by reference” to material not contained in the body of an act. Section 2 of the Immigration Act 1999 is not unconstitutional.428

428 _{The Supreme Court decision post-dated the enactment of the Immigration Act} 2004, which, rather than refer to the 1946 Order, specifically incorporated its provisions

5.2 R

S

D

5.2.1 Standard of Proof

F.A. v Minister for Justice, Equality and Law Reform and Appeals Authority

[2002] 5 ICLMD 108; [2001] IEHC 217 High Court, Ó Caoimh J, 21/12/2001 Description

The applicant was refused asylum at first instance, and appealed to the Appeals Authority. At the appeal he gave evidence of his claimed experience of arrest, imprisonment and subjection to torture, cruel, inhumane and degrading treatment in Sierra Leone, and argued that such treatment occurred by reason of political activity and membership of a social group. The Appeals Authority found, inter alia, that the applicant lacked credibility and also that he had not satisfied the standard of proof of a “reasonable likelihood of persecution”. The Applicant argued, inter alia, that the correct standard of proof was not “a reasonable likelihood” but a lesser standard. The Court was satisfied that the test applied by the Appeals Authority, that there must be a “reasonable likelihood” of persecution, accorded with the test applied by the House of Lords in R v Secretary of State for the Home Department, ex parte Sivakumaran [1988] Imm AR 147 where Lord Keith of Kinkel spoke of the need for an applicant to demonstrate “a reasonable degree of likelihood that he would be persecuted for a conventional reason if returned to his own country”. Principles

The correct standard of proof in applications for asylum is whether there is a reasonable likelihood of persecution for a Convention reason if an applicant for asylum is returned to his or her country of origin.429

429 _{C.f. R.K.S. v Refugee Appeals Tribunal & Ors [2004] IEHC 436, Unreported, High} Court, 09/07/2004. See section 5.3.5 of this text.

5.2.2 Forward-Looking Test

M v Refugee Appeals Tribunal