Leontjava v DPP

JurisdictionIreland
CourtSupreme Court
JudgeKeane C.J.,Fennelly J
Judgment Date23 June 2004
Neutral Citation[2004] IESC 37
Date23 June 2004
Docket Number[S.C.

[2004] IESC 37

THE SUPREME COURT

Keane C.J.

Murray J.

M cGuinness J.

Fennelly J.

M cCracken J.

39 & 53/04
40 & 52/04
D.P.P. & ORS v. LEONTJAVA

BETWEEN

ILONA LEONTJAVA
APPLICANT

AND

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

AND

DISTRICT JUDGE MARY COLLINS
NOTICE PARTY
D.P.P. & ORS v. LEONTJAVA

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(6)

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

ALIENS ACT 1935 S5(1)

IMMIGRATION ACT 1999 S 2(1)

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

ALIENS ACT 1935 S5(1)(h)

ALIENS ACT 1935 S5(1)(b)

LAURENTIU V MIN FOR JUSTICE 1994 4 IR 26

ALIENS (VISAS) ORDER 1999 SI 25/1995

ALIENS ACT 1935 S5(1)(d)

CONSTITUTION ART 15.2

CITYVIEW PRESS LTD V COMHAIRLE OILIUNA 1980 IR 381

CASSIDY V MIN INDUSTRY 1978 IR 297

O'NEILL V MIN FOR AGRICULTURE & FOOD 1998 1 IR 539 1997 2 ILRM 435

MAHER & ORS V MIN AGRICULTURE & RURAL DEVELOPMENT & ORS 2001 2 IR 139

BLASCAOD MOR TEORANTA & ORS V COMMISSIONERS OF PUBLIC WORKS IN IRELAND UNREP 19.12.1996 KELLY 1997/1/96

HOWARD V COMMISSIONERS OF PUBLIC WORKS 1994 1 IR 101

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

CONSTITUTION ART 34.4.5

CONSTITUTION ART 15.2.1

MCDAID V JUDGE SHEEHY 1991 1 IR 1

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

CONSTITUTION ART 20

CONSTITUTION ART 25.1

CONSTITUTION ART 25.4.1

CONSTITUTION ART 25.4.2

CONSTITUTION ART 25.4.3

CONSTITUTION ART 25.4.5

CONSTITUTION ART 26.1.1

MCCULLOCH V MARYLAND 1819 17 US 316

BOLAND V AN TAOISEACH 1974 IR 338

AG V HAMILTON 1993 2 IR 250 1993 ILRM 81

SINNOTT V MIN FOR EDUCATION & ORS 2001 2 IR 545

D (T) V MIN EDUCATION 2001 4 IR 259

CONSTITUTION ART 15.4

STATE (GILLIAND) V GOVERNOR OF MOUNTJOY PRISON 1987 IR 201

DOYLE V AN TAOISEACH 1986 ILRM 693

CONSTITUTION ART 40.4.3

CONSTITUTION ART 34.4.5

IMMIGRATION BILL 1999 S2(1)

BUCKLEY & ORS V AG 1950 IR 67

ELECTORAL (AMDT) BILL 1983, IN RE 1984 IR 268

CONSTITUTION ART 11.1

CONSTITUTION ART 15.10

RIORDAN V AN TANAISTE 1997 3 IR 502 1998 1 ILRM 494

BENNION STATUTORY INTERPRETATION 4ED 2002 648

R V SIMS & ORS 2000 BCCA 437

JURISDICTION OF COURTS (MARITIME CONVENTIONS) ACT 1989 S4

INTERNATIONAL CARRIAGE OF GOODS BY ROAD ACT 1990

ARBITRATION (INTERNATIONAL COMMERCIAL) ACT 1998

CONTRACTUAL OBLIGATIONS (APPLICABLE LAW) ACT 1991

IMPOSITION OF DUTIES ACT 1957 S(1)(d)

FINANCE ACT 1976 S46

INSTITUTE OF PATENT AGENTS & ORS V LOCKWOOD 1894 AC 347

PATENTS DESIGNS & TRADE MARKS ACT 1883 S101

PATENTS DESIGNS & TRADE MARKS ACT 1888

Synopsis:

- [2004] 1 IR 615 - [2005] 1 ILRM 214

Facts: The respondent claimed that s. 2 of the Immigration Act 1999 was invalid having regard to the provisions of the Constitution. The High Court had held that there was nothing in the Constitution which authorised or permitted the Oireachtas to determine that a provision which was and continued to be secondary legislation made by a person other than the Oireachtas should henceforth be treated in the legal order of the State as if it were an Act of the Oireachtas.

Held by the Supreme Court (Keane CJ, Murray, McGuinness, Fennelly and McCracken JJ) in allowing the appeal that the respondent had failed to discharge the onus resting on her of establishing that s. 2 was invalid having regard to the provisions of the Constitution. The choice by the Oireachtas to incorporate the instruments in question by reference rather than by setting out their text verbatim in the body of the Act was one which they were entitled to make.

Reporter: R.W.

1

JUDGMENT delivered the 23rd day of June, 2004, by Keane C.J.

Introduction
2

The factual background to these two cases is as follows.

3

The first named applicant is a Latvian national. She was arrested on the5 th June, 2003 and brought before the District Court. She was there charged with the offence of remaining in the State after the time set for her departure contrary to what was alleged to be a condition imposed on her as an alien when she was given leave to land in the State. On 30 th June, 2003, she was given leave to apply by way of an application for judicial review for interalia the following reliefs:

4

(i) An order of prohibition prohibiting her trial in Kilmainham District Court and prohibiting the respondents from further pursuing the prosecution in respect of the charge;

5

(ii) A declaration that Article 5(6) of the Aliens Order, 1946 as inserted by Article 3 of the Aliens (Amendment) Order, 1975 (under which the condition in question was purportedly imposed) is ultravires s. 5(1) of the Aliens Act, 1935(hereafter "the 1935 Act");

6

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

7

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

8

It was further ordered that the proceedings before the District Court be stayed pending the determination of the application for judicialreview.

9

The second named applicant is a Chinese national. He was remanded in custody on the 2 nd May, 2003 by the notice party at Trim District Court to answer a charge that he, being an alien, had failed to produce to a member of An Garda Síochána 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.

10

On the 26 th May, 2003, the second named applicant was given leave to apply by way of judicial review for interalia the following reliefs:

11

(i) An order of prohibition by way of judicial review prohibiting his trial in Trim District Court and prohibitingthe respondents from further pursuing the prosecution in respect of the above charge;

12

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

13

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

14

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

15

It was ordered that the proceedings before the District Court be stayed pending the determination of the application for judicial review.

16

Statements of opposition having been delivered on behalf of the respondents, the substantive hearing of both applications came on before Finlay-Geoghegan J. In a reserved judgment delivered on the22 nd January, 2004 the learned trial judge found that the applicant in each case was entitled to the order of prohibition sought. In the case of the first named applicant, she found that she was entitled to a declaration that Article 5(6) of the Aliens Order, 1946 was ultra vires s. 5(1) of the 1935 Act and to a declaration that s. 2 of the Immigration Act, 1999was repugnant to the Constitution and invalid. In the case of the second named applicant, she found that he was entitled to a declaration that s.5(1)(h) of the 1935 Act was inconsistent with the Constitution and invalid, a declaration that Article 15 of the Aliens Order, 1946 was invalid and a declaration that s. 2 of the Immigration Act, 1999was repugnant to the Constitution and invalid.

17

The respondents in both cases have now appealed to this court from the judgment and order of the High Court granting these reliefs.

18

The first named applicant has served a notice of cross-appeal( recte a notice to vary) in respect of the refusal by the learned trial judge to grant a declaration that s. 5(1)(b) of the 1935 Act was inconsistent with the Constitution and ceased to have effect in the law by virtue of Article 50.

19

This judgment deals with the findings of the learned trial judge other than her finding that s. 2 of the Immigration Act, 1999(hereafter "the 1999 Act") is invalid having regard to the provisions of the Constitution.

The statutory framework
20

The regulation under which the first named applicant was prosecuted is Article 5 of the Aliens Order, 1946 (hereafter "the 1946Order") as inserted by Article 3 of the Aliens (Amendment) Order, 1975 (hereafter "the 1975 Order"). The relevant provisions are as follows:

21

2 "5(1) An alien coming from a place outside the State other than Great Britain or Northern Ireland shall, on arrival in the State, present himself to an immigration officer for leave toland.

22

(6) An immigration officer may attach conditions as to the duration of stay and the engagement in business permitted to an alien granted leave to land, and the alien shall comply with theconditions."

23

Those provisions were made in purported pursuance of s. 5(1) of the 1935 Act which provides that

"The Minister [for Justice] 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 class, or of particular aliens, that is to say:-"

(a) prohibit the aliens to whom the order relates from landing in or entering into Saorstát Eireann;

(b) impose on such aliens restrictions and conditions in respect of landing in or entering into Saorstát Eireann, including limiting such landing or entering to particular places or prohibiting such landing or entering at particular places..."

24

The regulation on foot of which the second named applicant was prosecuted is Article 15 of the 1946 Order which provides that

25

2 "(1) Every alien shall produce on demand, unless he gives a satisfactory explanation of the circumstances which prevent him from so doing, either -

26

(a) in case he is registered or deemed to be registered under this Order, his registration certificate, or

27

(b) in any other case, a valid...

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