Pok Sun Shum v Ireland

• Jurisdiction: Ireland
• Court: Supreme Court
• Judgment Date: 01 January 1986
• Date: 01 January 1986

(H.C.)

Pok Sun Shum

and

Ireland

Alien marrying before order took effect - Extension to permission to stay - Constitution - Family -Whether order in conflict with rights of family -Whether aliens entitled to benefit of provisions of Constitution relating to family - Whether order must comply with natural justice - Aliens Order, 1946 (S.R. O. No. 395) - Aliens (Amendment) Order, 1975 (S.I. No. 128) - Aliens Act, 1935 (No. 14) - Irish Nationality and Citizenship Act, 1956, (No. 26), ss. 15, 16 - Constitution of Ireland, 1937, Arts. 41, 42.

The first-named plaintiff, a native of China, arrived in this country in 1978 and worked in a restaurant. As a result of a serious incident in 1979, the Department of Justice on behalf of the Minister informed the first-named plaintiff that he must leave the country. Later that year the first-named plaintiff married the second-named plaintiff. They had three children and his wife was expecting a fourth child. Steps to implement the decision in relation to permission for the first-named plaintiff to remain in this country as an alien were not taken. No decision was taken to request him to leave the country and, instead, from time to time, he obtained permits which were granted to him by the Department of Labour allowing him to continue to work. In 1981, the first-named plaintiff made a formal application to the Minister for a certificate of naturalisation in addition to an application to carry on business as a self-employed person. Meetings between him and officials of the Department of Justice took place followed by correspondence. His application for a certificate of naturalisation was refused and he was informed that he must leave the country but a stay for a further three months was allowed to enable him to wind up his business affairs. Proceedings were instituted by the plaintiffs and a number of declarations were sought, inter alia, that, 1, the 1946 and 1975 Aliens Orders did not empower the Minister in view of Articles 40, 41 and 42 of the Constitution to control the duration of stay and/or engagement in business of the first-named plaintiff within the State and otherwise control or prohibit his movements within and/or departure from and re-entry...