Leontjava -v- DPP & ors, Chang -v- DPP & ors, [2004] IESC 37 (2004)

Docket Number:39 & 53/04, 40 & 52/04
Party Name:Leontjava, DPP & ors, Chang -v- DPP & ors
Judge:Fennelly J. / Keane C.J.
 
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THE SUPREME COURT

Keane C.J.

Murray J.

McGuinness J.

Fennelly J.

McCracken J.

BETWEEN

39 & 53/04ILONA LEONTJAVAAPPLICANTAND

THE DIRECTOR OF PUBLIC PROSECUTIONS, IRELAND

AND THE ATTORNEY GENERALRESPONDENTSAND

DISTRICT JUDGE MARY COLLINSNOTICE PARTY

BETWEEN

40 & 52/04LIU CHANGAPPLICANTAND

THE DIRECTOR OF PUBLIC PROSECUTIONS, IRELAND

AND THE ATTORNEY GENERALRESPONDENTSAND

DISTRICT JUDGE BROPHYNOTICE PARTYJUDGMENT delivered the 23rd day of June, 2004, by Keane C.J.

Introduction

The factual background to these two cases is as follows.

The first named applicant is a Latvian national. She was arrested on the 5th 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 30th June, 2003, she was given leave to apply by way of an application for judicial review for inter alia the following reliefs:

(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;

(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 ultra vires s. 5(1) of the Aliens Act, 1935 (hereafter "the 1935 Act");

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

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

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

The second named applicant is a Chinese national. He was remanded in custody on the 2nd 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.

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

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

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

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

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

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

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 the 22nd 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, 1999 was 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, 1999 was repugnant to the Constitution and invalid.

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

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.

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

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

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 to land.

(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 the conditions.

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...

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