Laurentiu v Minister for Justice

• Jurisdiction: Ireland
• Judge: Denham J.,Keane, J.,Lynch, J.
• Judgment Date: 01 January 2000
• Neutral Citation: [1999] IESC 47
• Court: Supreme Court
• Docket Number: [1998 No. 127 J.R.; S.C. No. 40 of 1999]
• Date: 01 January 2000

LAURENTIU v. MIN FOR JUSTICE, EQUALITY AND LAW REFORM & ORS.

BETWEEN

SORIN LAURENTIU

APPLICANT/RESPONDENT

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM IRELANDAND THE ATTORNEY GENERAL

RESPONDENTS/APPELLANTS

[1999] IESC 47

Hamilton C.J.

Denham J.

Barrington J.

Keane J.

Lynch J.

No. 40/99

THE SUPREME COURT

Synopsis

Constitutional Law

Aliens; constitutional validity of Aliens Act, 1935; interpretation of Article 15.2 of the Constitution; power of legislature to delegate; executive powers; legislative powers; a deportation order was made against the plaintiff under the Aliens Order, 1946; appeal against finding of unconstitutionality; whether s.5(1)(e) of the 1935 Act infringes Article 15.2; whether s.5(1)(e) sets out the policies and principles which are to be given effect to by the respondent; whether the legislature could delegate to the respondent the power to deport aliens; whether the provision for annulment would save an enactment otherwise in breach of Article 15.2.

Held: S. 5(1)(e) is inconsistent with Article 15.2 of the Constitution.

Laurentiu v. Minister for Justice, Equality and Law Reform - Supreme Court: Hamilton C.J., Denham J., Barrington J.*, Keane J., Lynch J.* - (*dissenting) - 20/05/99 - [1999] 4 IR 42 - [2000] 1 ILRM 1

Section 5(1)(e) of the Aliens Act 1935, insofar as it delegated the power to deport aliens to the Minister for Justice without setting out principles and policies upon which that power was to be exercised, was not carried over by Article 50 of the Constitution of Ireland 1937 and did not form part of Irish law. Article 15.2.1 of the Constitution provides that "the sole and exclusive power of making laws for the State is vested in the Oireachtas..." As such, it requires that, where legislation delegates powers to the executive, it must specify principles and policies which will govern the exercise of those powers by the executive. Section 5(1)(e) of the Aliens Act neither expressly or implicitly admitted of any guidelines to the making of delegated legislation or deportation orders, and as such was not valid. Appeal of the respondents/appellants dismissed.

Barrington and Lynch JJ dissenting found that, while the Aliens Act 1935 did not enjoy the presumption of constitutionality, the onus rested on the applicant to prove that the impugned section was inconsistent with Article 15.2.1 of the Constitution. The rationale of the 'principles and policies' test was to strike a balance between the rights of the citizen and the exigencies of the common good. The circumstances in which the Aliens Act 1935 operates are somewhat exceptional, in that aliens are not citizens and do not enjoy the full spectrum of rights that citizens do. That is the premise of the Act, and accordingly the general power to exclude aliens should remain.

Citations:

ALIENS ACT 1935 S5(1)(e)

CONSTITUTION ART 50

CONSTITUTION ART 15.2

ALIENS ORDER 1946 S R & O 395/1946 ART 13(1)

CONSTITUTION ART 15.2.1

ALIENS ORDER 1946 S R & O 395/1946 ART 13

CITYVIEW PRESS LTD V CHOMHAIRLE OILIUNA 1980 IR 381

HARVEY V MIN FOR SOCIAL WELFARE 1990 2 IR 232

ALIENS ACT 1935 S5

CARRIGALINE COMMUNITY TELEVISION BROADCASTING CO LTD V MIN FOR TRANSPORT 1997 1 ILRM 241

CONSTITUTION ART 6

CONSTITUTION ART 28.2

CONSTITUTION ART 29.4.1

CONSTITUTION ART 34.1

ALIENS ACT 1935 S5(1)

PIGS MARKETING BOARD V DONNELLY (DUBLIN) LTD 1939 IR 413

CONSTITUTION SAORSTAT EIREANN ART 12

CONSTITUTION ART 15

CONSTITUTION ART 29.4.4

CONSTITUTION ART 29.4.5

GILLILAND, STATE V GOV OF MOUNTJOY PRISON 1987 IR 201

MCDAID V SHEEHY 1991 1 IR 1

EAST DONEGAL CO-OP LIVESTOCK MART LTD V AG 1970 IR 317

EUROPEAN COMMUNITIES ACT 1972 S3(2)

MEAGHER V MIN FOR AGRICULTURE 1994 1 IR 329

CONSTITUTION ART 29.4.3

TREATY OF ROME ART 189

EUROPEAN COMMUNITIES ACT 1972 S3

PANAMA REFINING CO V RYAN 1935 293 US 388

ALA SCHECHTER POULTRY CORP V UNITED STATES 1935 295 US 495

MISTRETTA V UNITED STATES 1989 488 US 361

FIELD V CLARK 1892 143 US 649

HAMPTON & CO V UNITED STATES 1928 276 US 394

OPP COTTON MILLS INC V ADMINISTRATOR WAGE & HOUR DIV OF DEPT OF LABOUR 1941 312 US 126

UNITED STATES V ROBEL 1967 389 US 258

AMERICAN POWER & LIGHT CO V SEC 1946 329 US 90

YAKUS V UNITED STATES 1994 321 US 414

NATIONAL BROADCASTING CO V UNITED STATES 1943 319 US 190

UNITED STATES V CHAMBLESS 1988 680 F SUPP 793

SUNSHINE COAL CO V ADKINS 1940 310 US 381

CHU KHENG LIM V MIN FOR IMMIGRATION 1992 176 CLR 1

CANADA, AG V CAIN & GILHULA 1906 AC 542

VATTEL LAW OF NATIONS BOOK 1 S231; BOOK 2 S125

QUINN, STATE V RYAN 1965 IR 70

KOHN CONSTITUTION OF IRISH FREE STATE (1932) 181

CONSTITUTION ART 6.1

CONSTITUTION ART 6.2

ALIENS ACT 1935 S5(8)

ALIENS ACT 1935 S5(5)

LYNCH, STATE V COONEY 1982 IR 337

O'KEEFFE V BORD PLEANALA 1993 1 IR 39

FAJUJONU V MIN FOR JUSTICE 1990 2 IR 151

ALIENS ACT 1935 S5(2)

ALIENS ACT 1935 S5(4)

EUROPEAN COMMUNITIES (ALIENS) REGS 1977 SI 393/1977

ALIENS ACT 1935 S11

R V BRIXTON PRISON (GOVERNOR) EX-PARTE SOBLEN 1963 2 QB 243

ALIENS ORDER 1916

SOCIAL WELFARE ACT 1952 S75

SOCIAL WELFARE ACT 1979 S7

WIRELESS & TELEGRAPHY ACT 1926 S5

O'NEILL V MIN FOR AGRICULTURE & FOOD 1997 2 ILRM 435

LIVESTOCK ARTIFICIAL INSEMINATION ACT 1947

KENNEDY, STATE V LITTLE 1931 IR 39

NORRIS V AG 1984 IR 36

IMPOSITION OF DUTIES ACT 1957

BLAKE V IRELAND 1982 IR 117

CAMPBELL V HALL 1774 1 COWPER 204

CONSTITUTION ART 51

WEBB V IRELAND 1988 IR 353

HOWARD V COMMISSIONERS OF PUBLIC WORKS 1993 ILRM 665

CONSTITUTION ART 17

ALIENS ACT 1935 S5(3)

ALIENS ACT 1905 S1

ALIENS ACT 1905 S3

ALIENS RESTRICTIONS ACT 1914

ALIENS RESTRICTIONS (AMDT) ACT 1919 S1

RYAN, STATE V LENNON 1935 IR 170

COONEY, R V CLINTON 1935 IR 245

CONROY V AG 1965 IR 411

MCMAHON V AG 1972 IR 69

AG V MCBRIDE 1928 IR 451

CONSTITUTION (AMDT NO 16) ACT 1929

SHANLEY V COMMISSIONER OF PUBLIC WORKS 1992 2 IR 477

TANG V MIN FOR JUSTICE 1996 2 ILRM 46

POK SUN SHUM V IRELAND 1986 ILRM 593

CONSTITUTION ART 41

ALIENS ACT 1935 S10

ALIENS ACT 1935 S10(1)

ALIENS ACT 1935 S11

CONSTITUTION ART 15.1

CONSTITUTION ART 5

OSHEKU V IRELAND 1986 IR 733

CONSTITUTION ART 1

CONSTITUTION ART 4

CONSTITUTION ART 9

1 Judgment of Denham J.delivered on the 20th day of May, 1999.

2 This is an appeal by the Respondents (hereinafter referred to as the State) against the decision of the High Court, Mr. Justice Geoghegan, delivered on the 22nd January, 1999. The Learned High Court Judge granted a declaration that Section 5 (1)(e) of the Aliens Act, 1935was not carried over by Article 50 of the Constitution of Ireland, was inconsistent with Article 15.2 of the Constitution of Ireland and does not form part of Irish law. The Learned High Court Judge also made consequential declarations that Article 13 (1) of the Aliens Order, 1946 and the Deportation Order regarding the Applicant/Respondent in this case were invalid.

3 The case turns on the issue as to whether the legislature could, in the terms of Section 5(1)(e) of the Aliens Act, 1935delegate to the Minister the power to deport aliens, or whether it is an impermissible delegation of legislative power contrary to Article 15.2.1 of the Constitution of Ireland.

SUBMISSIONS

4 Mr. John Finlay, S.C., on behalf of the State, submitted that s.5(1)(e) of the Aliens Act, 1935and Regulation 13 of the Aliens Order, 1946 are valid. He submitted that the right of the State to control the entry of aliens, their activity in the State and their departure, is part of the sovereign rights of the State. The exercise of that control is primarily an executive and administrative function. The entitlement of aliens is dependent on the consent of the appropriate authority. If that consent is refused or withdrawn the alien has no right to stay in the State. He submitted that what the Minister did was within the four corners of the Aliens Act, 1935. He submitted that the policy of the Act is clear: aliens are only allowed into the State and to remain in the State with the permission of the Minister for Justice. The relevantjurisprudence, he submitted, is to be found in Cityview Press Limited v An Chomhairle Oiliuna [1980] I.R. 381 which was developed and supplemented in Harvey v. The Minister for Social Welfare [1990] 2 I.R. 232. He submitted that the appropriate methodology is to see if the enabling legislation, that is, Section 5 of the Aliens Act, 1935, makes it inevitable and necessary that the Minister in making regulations under the Act would breach Article 15.2.1 of the Constitution. He submitted that applying that test the Act did not fail. He supported his argument by reference to the judgment of Keane J. in Carrigaline Community Television Broadcasting Co. Ltd. v. Minister for Transport, Energy and Communications [1997] 1 I.L.R.M.241.

5 Mr. Gerard Hogan, S.C., Counsel for the Applicant, submitted that s.5(1)(e) of the Aliens Act, 1935gave excessive legislative powers to the Minister for Justice in that it effectively left the Minister at large insofar as the making of a Ministerial Order was concerned and it did not set out principles and policies upon which deportation orders were to be made; consequently, it did not survive the enactment of the Constitution. Further, he submitted that Article 13 of the Aliens Order, 1946 is a form of legislation outside the powers of legitimate delegation and contrary to Article 15.2.1 of the Constitution of Ireland. In oral argument he considered that there were three issues for the Court:

6 1. What is the proper test to apply in relation to Article 15.2.1 of the Constitution of Ireland? Is it the "principles andpolicies" test of Cityview or has that been qualified by Harvey?

7 2. Is the executive power of the State to deport an alien free-standing or can it be exercised only through legislation?

8 3. Given that the Oireachtas has legislated, does Section 5(1)(e) of the Aliens Act, 1935meet the appropriate test, which he submitted is the principles and policies test set out in Cityview?

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