Leontjava v DPP

JurisdictionIreland
CourtHigh Court
JudgeMs. Justice Finlay Geoghegan
Judgment Date22 Jan 2004
Neutral Citation2004 WJSC-HC 6400

2004 WJSC-HC 6400

The High Court

No. 482/2003
No. 383/2003
LEONTJAVA v. D.P.P & ORS; CHANG v. D.P.P. & ORS
JUDICIAL REVIEW

BETWEEN

ILONA LEONTJAVA
APPLICANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS, IRELAND AND THE ATTORNEY GENERAL
RESPONDENTS

AND

DISTRICT JUDGE MARY COLLINS
NOTICE PARTY

BETWEEN

LIU CHANG
APPLICANT

And

The Director of Public Prosecutions, Ireland and The ATTORNEY GENERAL
RESPONDENTS

AND

DISTRICT JUDGE BROPHY
NOTICE PARTY

Citations:

ALIENS ORDER 1946 S R & O 395/1946 ART 5

ALIENS (AMDT) ORDER 1975 SI 128/1975 ART 3

IMMIGRATION ACT 1999 S2

ALIENS ACT 1935 S6(1)

IMMIGRATION ACT 1999 S10

REFUGEE ACT S9(3)(C)

ALIENS ORDER 1946 S R & O 395/1946 ART 5(6)

ALIENS ACT 1935 S5(1)

IMMIGRATION ACT 1999 S2(1)

ALIENS ORDER 1946 S R & O 395/1946 ART 15

ALIENS ORDER 1946 S R & O 395/1946 ART 5(1)

ALIENS ORDER 1946 S R & O 395/1946 ART 15(1)

ALIENS ORDER 1946 S R & O 395/1946 ART 15(2)

ALIENS ORDER 1946 S R & O 395/1946 ART 15(3)

IMMIGRATION ACT 1999 S2(2)

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

ALIENS (VISAS) ORDER 1999 SI 25/1999

CONSTITUTION ART 15.2

ALIENS ACT 1935 S5(1)(E)

LAURENTIU V MIN JUSTICE 1999 4 IR 26

CONSTITUTION ART 15

CONSTITUTION ART 20

CONSTITUTION ART 25

CONSTITUTION ART 26

ALIENS ACT 1935 S5(1)(B)

ALIENS ACT 1935 S5(1)(H)

ALIENS ACT 1935 S5(1)(E)

ALIENS ACT 1935 S5(1)(D)

ALIENS ACT 1935 S5(2)

ALIENS ACT 1935 S5(1)(A)

KANAYA V MIN JUSTICE 2000 2 ILRM 503 1999/14/4077

CITYVIEW PRESS V COMHAIRLE OILIUNA 1980 IR 381

INSTITUTE OF PATENT AGENTS & ORS V LOCKWOOD 1894 AC 347

ALIENS ACT 1935 S5(7)

EAST DONEGAL CO-OP V AG 1970 IR 317

MCDAID V JUDGE SHEEHY 1991 1 IR 1

K (H) V GARDA CMSR & ORS UNREP 27.3.2003 (EX TEMPORE)

IMPOSITION OF DUTIES ACT (NO 221) (EXCISE DUTIES) ORDER 1975 SI 307/1975

IMPOSITION OF DUTIES ACT 1957 S1

IMPOSITION OF DUTIES ACT 1957 S2(1)

FINANCE ACT 1976 S46

QUINN, STATE V RYAN 1965 IR 70

CONSTITUTION ART 40.1

CONSTITUTION ART 29.6

CONSTITUTION ART 29.4.7

CONSTITUTION ART 21

CONSTITUTION ART 22

CONSTITUTION ART 23

CONSTITUTION ART 24

WALSHE, STATE V MURPHY 1981 IR 275

CONSTITUTION ART 15.4

CONSTITUTION ART 25.1

CONSTITUTION ART 25.4.1

CONSTITUTION ART 25.4.2

CONSTITUTION ART 26.1.1

Synopsis:

- [2004] 1 IR 591

Constitutional law -Judicial review - Prohibition - Refugee law - Immigration and asylum - Practice and procedure - Whether trials. of applicants should be prohibited from proceeding - Whether statutory provisions unconstitutional - Refugee Act, 1996 - Immigration Act, 1999 - Aliens Order, 1946- Aliens Act, 1935 - Bunreacht na hEireann, 1937.

Both cases were heard together as they involved similar points of law. In the case of Leontjava the applicant had been arrested and was charged with being in breach of the Aliens Order, 1946 and of the Immigration Act, 1999. In the case of Chang the applicant had also been charged with being in breach of the Aliens Order, 1946 and of the Immigration Act, 1999. Both applicants issued judicial review proceedings contended that both the relevant statutory provisions were ultra vires and unconstitutional and sought orders of prohibition preventing their respective trials from proceeding. Principally it was claimed that certain provisions of the Aliens Order, 1946 were either ultrd vires the Aliens Act, 1935 or were in breach of Article 15.2 of the Constitution.

Held by Finlay Geoghegan j in granting the reliefs sought. In both cases it had been shown that relevant provisions of the Aliens Order, 1946 were invalid and inconsistent with the Constitution. In addition section 2 of the Immigration Act, 1999 had been shown to be repugnant to the Constitution and invalid. Orders of prohibition would issue in both cases preventing the trials of the applicants from proceeding.

Reporter: R.F.

1

Ms. Justice Finlay Geoghegan delivered the 22nd day of January, 2004.

Preliminary
2

This judgment is being delivered in two separate applications for judicial review as set out in the titles above. The applicants and respondents in each were represented by the same solicitor and counsel. By agreement of the parties, the two applications for judicial review were heard simultaneously, by reason of the similarity of the reliefs sought and issues raised. It is, however, necessary to set out separately the facts and claims of the individual applications for judicial review. For simplicity the applicant, Ilona Leontjava, will hereafter be referred to as the first named applicant. The applicant Liu Chang will hereafter be referred to as the second named applicant.

The claim of the first named applicant
3

The first named applicant is a Latvian of Russian ethnicity. On the 5 th June, 2003 the applicant was arrested at the Social Welfare office in Ballyfermot, Dublin and brought before Judge Gibbons at Kilmainham District Court on the following charge:

"For that you the said accused being an alien, did on the 5 th June, 2003 at Rossmore Avenue, Ballyfermot, Dublin 10 in the Dublin Metropolitan District remain within the State after the time set for your departure, 9 th November, 2001, contrary to a condition subject to which you were given leave to land in the State, in contravention of art. 5 of the Aliens Order, 1946 as inserted by art. 3 of the Aliens (Amendment) Order, 1975 and as provided for by s. 2 of the Immigration Act, 1999- Contrary to s. 6(1) of the Aliens Act, 1935as amended by s. 10 of the Immigration Act, 1999and as provided for by s. 9(3)(c) of the Refugee Act, 1996."

4

On the 5 th June, 2003 the first named applicant was remanded on her own recognisance of €100 to appear before Kilmainham District Court on 19 th June, 2003. On 19 th June, 2003 the case was adjourned by the Notice Party to 10 th July, 2003.

5

On 30 th June, 2003 by order of the High Court (Peart J), the first named applicant was granted leave to apply by way of an application for judicial review for reliefs including the reliefs ultimately pursued at the hearing before me which may be summarised as follows:

6

(i) An Order of Prohibition prohibiting the trial of the applicant in Kilmainham District Court and prohibiting the respondent from further pursuing the prosecution in respect of the above charge;

7

(ii) A declaration that art. 5(6) of the Aliens Order 1946 as inserted by art. 3 of the Aliens (Amendment) Order 1975 is ultra vires s. 5(1) of the Aliens Act 1935.

8

(iii) A declaration, if necessary, that s. 5(1) of the Aliens Act 1935is inconsistent with the Constitution and invalid;

9

(iv) A declaration, if necessary, that s. 2(1) of the Immigration Act 1999is repugnant to the Constitution and invalid.

10

Leave was granted upon the grounds set forth at paragraph E (as amended) of the statement of grounds filed herein which include the grounds relied upon at the hearing and referred to below. It was further ordered that the proceedings before the District Court be stayed pending the determination of the application for judicial review.

The claim of the second named applicant
11

The second named applicant is a Chinese national.

12

On the 2 nd May, 2003 the second named applicant was remanded in custody to Cloverhill Prison by the notice party at Trim District Court to appear on the 9 th May, 2003, to answer the charge set out on Trim Garda Station Charge Sheet No. 104/A of 2003 that the applicant did:

"At Emmet Street, Trim, Co. Meath on the 1 st May, 2003 within the District Court Area of Trim District No.10, being an alien when demanded of him by Sergeant Dean Kerins a member of An Garda Siochana fail to produce his registration certificate, a valid passport, or a document satisfactorily establishing his identity he not having satisfactorily explained the circumstances (if any) which prevented him from doing so in contravention of Article 15 of the Aliens Order, 1946 - contrary to s. 6(1) of the Aliens Act 1935as amended by s. 10 of the Immigration Act, 1999as provided for by s. 2(1) of the Immigration Act 1999."

13

On the 9 th May, 2003 the second named applicant was remanded in custody to Trim District Court on the 23 rd May, 2003 and thereafter to the 10 th June, 2003.

14

On the 26 th May, 2003 by order of the High Court (O'Donovan J), the second named applicant was given leave to apply by way of application for judicial review for reliefs which included the following reliefs pursued at the hearing before me:

15

(i) An Order of Prohibition by way of judicial review prohibiting the trial of the applicant in Trim District Court and prohibiting the respondent from further pursuing the prosecution in respect of the above charge;

16

(ii) A declaration that art. 15 of the Aliens Order 1946 as amended is ultra vires s. 5(1) of the Aliens Act 1935;

17

(iii) A declaration, if necessary, that s. 5(1) of the Aliens Act 1935is inconsistent with the Constitution and invalid;

18

(iv) A declaration, if necessary, that s. 2(1) of the Immigration Act 1999is repugnant to the Constitution and is invalid.

19

The second named applicant was granted such leave upon the grounds set out at paragraph E of the statement of grounds filed in the proceedings which included the grounds relied upon at the hearing of the substantive application and referred to below. It was further ordered that the proceedings before the District Court be stayed pending the determination of the application for judicial review.

Legislative and regulatory framework
20

The following are the principal statutory provisions relevant to the charges against both applicants and the issues which this court has to consider on the applications for judicial review.

Aliens Act 1935(as amended)

"5(1) - The Minister may, if and whenever he thinks proper, do by order (in this Act referred to as an aliens order) all or any of the following things in respect either of all aliens or of aliens of a particular nationality or otherwise of a particular...

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