High Court finding on deportation challenged

The Minister for Justice is disputing a High Court finding that there is no policy or principles set out in the Aliens Act 1935 governing the deportation of aliens, the Supreme Court was told yesterday.

The Act did set out a policy concerning deportation, which policy was that the Minister might deport any alien who was in the State without permission, Mr John Finlay SC, for the Minister, said. The Act "very expressly" provided for a power of deportation in the Minister.

Following the hearing yesterday, judgment was reserved.

The Chief Justice, Mr Justice Hamilton, suggested to Mr Maurice Collins, also for the Minister, that the Minister's power to issue deportation orders was "absolute". Mr Collins accepted it was "very broad" but said it was subject to significant constitutional protections.

The court was hearing the Minister's appeal against a High Court decision last month which has effectively suspended the issuing of deportation orders. In the course of the appeal, the court was told an Immigration Bill was before the Oireachtas. The Chief Justice remarked that this was a back-up in the event of the Supreme Court dismissing the appeal.

In his High Court judgment on a challenge to a deportation order issued in respect of a Romanian football player, Mr Sorin Laurentiu (32), who has been living in Dublin since 1994, Mr Justice Geoghegan found that Section 5.1.e of the Aliens Act 1935, from which the power to make deportation orders derived, was unconstitutional because of the failure to set out policy or principles on foot of which such orders were issued.

The judge made consequential orders that Article 13.1 of the Aliens Order 1946 was invalid, as was a deportation order made in February 1998 in the case of Mr Laurentiu.

Appealing that decision yesterday, Mr Finlay said the High Court had found the Department of Justice had properly processed Mr Laurentiu's claim for refugee status. Mr Justice Geoghegan had found the deportation order was invalid only on the basis of his finding that Section 5.1.e of the Aliens Act was unconstitutional.

Mr Finlay outlined the provisions of Section 5 of the Aliens Act. Section 5.1.e provided for the exclusion and deportation of aliens from the State. There were certain restrictions on this, including restrictions related to diplomats and aliens resident in the State for more than five years. Persons applying for refugee status could also not be deported prior to the determination of their application. Counsel said Article 13.1 of the Aliens Order 1946 provided, subject to the restrictions set out in the Aliens Act, that the Minister might make an order requiring an alien to leave the State.

He submitted the right of the State to have control over the entry of aliens. The exercise of that control was primarily a matter for the executive and the entitlement of an alien to be in the State was at all times dependent on the consent of the appropriate authority, the Minister.

Opposing the appeal, Mr Gerard Hogan SC, for Mr Laurentiu, said Article 15.2.1 of the Constitution vested in the Oireachtas "sole and exclusive" power for making laws for the State and had to be seen to prohibit clauses or provisions which purported to enable the executive to amend the law. It was the cornerstone of democracy.

The question was whether Section 5.1.e of the Aliens Act met that standard, he said.

There was no indication whatsoever in Section 5 of the Aliens Act as to what policies or principles should govern the issuing of deportation orders, counsel said. He noted that the Aliens Bill now before the Oireachtas did set out clear and defined principles and policies regarding the exercise of the power of deportation.

It was not as if the Oireachtas could not have set out policy and principles in the 1935 Act, counsel argued. The Oireachtas had refrained from doing so and, in that respect, there was a dereliction of legislative duty. There was no guidance given in the 1935 Act as to how the power to arrest aliens might be exercised or regarding how long persons arrested under the Act might be detained, Mr Hogan pointed out.