State appeals High Court judgment

The State has appealed to the Supreme Court against a significant High Court judgment which struck down parts of the Immigration Act 1999 as unconstitutional.

The judgment of Ms Justice Finlay Geoghegan last January 22nd had immediate implications for Garda control on the movements of some immigrants, and the Government responded by enacting the controversial Immigration Bill 2004, which has been criticised by opposition politicians, human rights and civil liberties groups. The Government has said the Bill is an emergency measure pending the outcome of its Supreme Court appeal.

In her decision, Ms Justice Finlay Geoghegan found Section 2 of the Immigration Act 1999 was unconstitutional because it involved primary legislation being amended by secondary legislation. Section 2 was intended to make certain provisions of the Aliens Order 1946 lawful, following a Supreme Court decision in another case which struck down the power to make deportation orders.

Ms Justice Finlay Geoghegan also declared unconstitutional provisions of the Aliens Order 1946, under which conditions may be placed by an immigration officer on non-nationals arriving here and under which non-nationals are required to produce registration certificates, passports and other documents on demand from a garda or immigration officer.

She further held that Section 5.1.h of the Aliens Act 1935, which requires aliens to comply with provisions regarding registration, change of abode, travelling, employment and other matters, is unconstitutional.

In light of her findings, Ms Justice Finlay Geoghegan granted an order restraining the prosecution of a Chinese man, Mr Liu Chang, for failing to produce identification to a garda. She also quashed the prosecution of a Latvian woman, Ms Ilona Leontjava, who was charged with remaining within the State in contravention of the Aliens Order 1946 as provided for by Section 2 of the Immigration Act 1999.

Section 2 of the 1999 Act was enacted with a view to making lawful provisions of the Aliens Order 1946, which order was in turn made under Section 5 of the 1935 Aliens Act. Section 2.1 states that every order made under Section 5 of the Aliens Act 1935 (prior to the passage of the 1999 Act) "shall have statutory effect as if it were an Act of the Oireachtas".

In the Laurentiu case, the Supreme Court declared Section 5.1.e of the Aliens Act 1935, from which the power to make deportation orders was derived, unconstitutional. That decision raised doubts about the validity of other sub-sections of the 1935 Act. In introducing Section 2 of the 1999 Act, the Oireachtas intended it would ensure the Aliens Order 1946 would have legal force and effect independently of the validity of the enabling provision under which it was made.

Ms Justice Finlay Geoghegan found the clear meaning of Section 2.1 was that the substantive provisions of the Aliens Order 1946 were to have statutory effect as if they were an Act of the Oireachtas but without being contained in an Act of the Oireachtas.

Moving the State's appeal yesterday, Mr Paul Gallagher SC said he was contending Section 2 of the 1999 Act, Article 5.6 of the Aliens Order 1946 and Section 5.1.h of the Aliens Act 1935 were constitutional.

He said the essential issue for the court to consider was what Section 2.1 purported to do. All it purported to do was render lawful orders made before its passage, it did not seek to have prospective effect.

His case was that Section 2 clearly validated the orders made under the 1935 Act and this was the clear intention of the legislature. From the coming into being of Section 2, the orders in question had the force of law.

In Section 2, the Oireachtas had not abdicated its law-making power but had rather asserted that power. Under Article 15, the Oireachtas was free to make, as part of the law of the country, whatever rules and procedures it considered appropriate.

Opposing the appeal, Mr Gerard Hogan SC, for Mr Chang and Ms Leontjava, said this was a plain case of acting ultra vires (in excess of powers).

What was involved in the impugned measures was "delegation upon delegation" with the result that an immigration officer could impose controls on the movement of aliens here, the breach of which controls involved a criminal offence.

In relation to Section 2.1 of the 1999 Act, Mr Hogan said it was his case the Oireachtas could not circumvent the implied restrictions on its law-making power and could not confer the status of an Act of the Oireachtas on something which was not an Act.

If Mr Gallagher was correct, it would be constitutionally permissible for the Government, instead of bringing in Bills and complying with the Constitution, to make a lot of statutory instruments and give them the force of law through a one-line confirmation as in Section 2.1, counsel argued.

The hearing before the five-judge court continues today.