Re Illegal Immigrants (Trafficking) Bill 1999

• Jurisdiction: Ireland
• Court: Supreme Court
• Judge: Keane C.J.
• Judgment Date: 28 August 2000
• Neutral Citation: [2000] IESC 19
• Docket Number: [S.C. No. 183 of 2000]
• Date: 28 August 2000

ARTICLE 26 OF THE CONSTITUTION & SECTION 5 & SECTION 10 OF THE ILLEGAL IMMIGRANTS (TRAFFICKING BILL) 1999, IN RE

IN THE MATTER OF ARTICLE 26 OF THE CONSTITUTION AND SECTION 5 AND SECTION 10 OF THE ILLEGAL IMMIGRANTS (TRAFFICKING BILL 1999)

[2000] IESC 19

Keane C.J,

Murphy, J.

Murray, J.

McGuinness, J.

Geoghegan, J.

THE SUPREME COURT

Synopsis:

Constitutional Law

Constitutionality; Article 26 reference; whether section 5 and section 10 of the Illegal Immigrants (Trafficking) Bill 1999 were repugnant to the Constitution; effect of section 5 is to preclude any person from questioning the validity of specified decisions or orders otherwise than by way of an application for judicial review, made within 14 days from date on which the person is notified of the decision or order, unless the High Court thinks that there is "good and sufficient reason" for extending this period; application for leave must be made on notice to the Minister and will not be granted unless the High Court is satisfied that there are substantial grounds for contending that the decision or order is invalid or ought to be quashed; no appeal lies from the decision of the High Court except with leave of High Court; section 10 extends the powers conferred on the Minister in relation to deportation orders and includes extended powers of arrest and detention of persons by immigration officers and the gardai; whether question as to whether or not a Bill referred under Article 26 enjoys a presumption of constitutionality should be reconsidered by the Court; whether Court should look at legislative history of section 5 and section 10 of the Bill including parliamentary debates; whether limitation period of 14 days for making application for judicial review in section 5 violated the constitutional rights of access to the courts and breached constitutional guarantee of equality before the law; whether restrictions on person's right to appeal to Supreme Court were unconstitutional; whether section 5 has effect of preventing a person from challenging the lawfulness of their detention by way of habeas corpus; whether extended ground of detention under section 10 results in any unfair or unconstitutional hardship on a person the subject of a deportation order; whether extended grounds for detention under section 10 conflict with Article 5 of the ECHR; whether section 10 constitutes an impermissible delegation of legislative power.

Held: Constitutionality of sections 5 and 10 of the Bill upheld.

In the matter of Article 26 of the Constitution and Section 5 And Section 10 of the Illegal Immigrants (Trafficking) Bill 1999

Supreme Court: Keane C.J. - 28/08/2000 - 2000 2 IR 360

The Supreme Court considered a number of provisions of the Illegal Immigrants (Trafficking) Bill, 1999 pursuant to an Article 26 reference from the President. The Chief Justice held that that none of the sections in question had been found to infringe the Constitution.

Citations:

ILLEGAL IMMIGRANTS (TRAFFICKING) BILL 1999 S5

ILLEGAL IMMIGRANTS (TRAFFICKING) BILL 1999 S10

CONSTITUTION ART 26.2.1

IMMIGRATION ACT 1999 S3

REFUGEE ACT 1996

ALIENS (AMDT)(NO 2) ORDER 1999

RSC O.84

IMMIGRATION ACT 1999 S5

ILLEGAL IMMIGRANTS (TRAFFICKING) BILL 1999 S10(B)

ART 26 & THE CRIMINAL LAW JURISDICTION BILL 1975, RE 1977 IR 129

CONSTITUTION ART 15

CONSTITUTION ART 30

AG V RYANS CAR HIRE 1965 IR 642

ART 26 OF THE CONSTITUTION & THE MATRIMONIAL HOMES BILL 1993, RE 1994 1 IR 305

ADOPTION (NO 2) BILL 1987, RE 1989 IR 656

QUINN, STATE V RYAN 1965 IR 70

BOURKE V AG 1972 IR 36

MCMAHON V AG 1972 IR 69

MAHER V AG 1973 IR 140

DPP, PEOPLE V MCDONAGH 1996 ILRM 468

BEECHAM GROUP LTD V BRISTOL MYERS LTD 1983 IR 325

PEPPER V HART 1993 AC 593

ILLEGAL IMMIGRANTS (TRAFFICKING) BILL 1999 S5(1)

ILLEGAL IMMIGRANTS (TRAFFICKING) BILL 1999 S5(2)

BRADY V DONEGAL CO COUNCIL 1989 ILRM 282

ILLEGAL IMMIGRANTS (TRAFFICKING) BILL 1999 S10(C)

ILLEGAL IMMIGRANTS (TRAFFICKING) BILL 1999 S5(3)

CONSTITUTION ART 36.3

ILLEGAL IMMIGRANTS (TRAFFICKING) BILL 1999 S5(2)(A)

MURPHY V GREEN 1990 2 IR 566

HOUSING ACT 1966 S78

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1992 S19

TRANSPORT (DUBLIN LIGHT RAIL) ACT 1996 S12

IRISH TAKEOVER PANEL ACT 1997 S13

ROADS (AMDT) ACT 1998 S6

IMMIGRATION ACT 1999 S3(B)

RSC 0.84 r21(1)

O'DONNELL V DUNLAOIGHAIRE CORPORATION (NO 2) 1991 ILRM 301

SCOTT V BORD PLEANALA 1995 1 ILRM 424

MCNAMARA V BORD PLEANALA 1995 2 ILRM 125

LANCEFORT V BORD PLEANALA 1997 2 ILRM 508

MOLYNEUX V BORD PLEANALA 1997 2 ILRM 241

CONSTITUTION ART 34.4.3

FREEDOM OF INFORMATION ACT 1997 S42(8)

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S52(2)

PATENTS ACT 1992 S96

ILLEGAL IMMIGRANTS (TRAFFICKING) BILL 1999 S5(3)(A)

MIN FOR JUSTICE V WANG ZHU JIE 1993 IR 426

IRISH ASPHALT LTD V CORD PLEANALA 1996 2 ILRM 179

EAST DONEGAL CO-OP V AG 1970 IR 317

POK SUN SHUM V IRELAND 1986 ILRM 593

OSHEKU V IRELAND 1986 IR 733

LAURENTIU V MIN FOR JUSTICE 2000 1 ILRM 1

CONSTITUTION ART 40.4.2

CONSTITUTION ART 40.3.2

KEEGAN, STATE V O'ROURKE 1985 IR 658

TRIMBOLE, STATE V GOVERNOR OF MOUNTJOY 1985 IR 550

MCFADDEN, STATE V GOVERNOR OF MOUNTJOY 1981 ILRM 113

HEANEY V IRELAND 1994 3 IR 593

KSK V BORD PLEANALA 1994 2 IR 128

R V STRATFORD ON AVON DISTRICT COUNCIL 1985 3 AER 769

ROADS ACT 1993

FISHERIES (AMDT) ACT 1997

IMMIGRATION ACT 1999 S9

MEADS CASE UNREP SUPREME 26.07.72

LOUTH V MIN FOR SOCIAL WELFARE 1998 IR 321

BRENNAN V AG 1983 ILRM 419

GUTRANI V GOVERNOR OF WHEATFIELD UNREP FLOOD 19.2.1993

IMMIGRATION ACT 1999 S3(9)

AG V O'CALLAGHAN 1966 IR 501

CLARKE, RE 1950 IR 235

MENTAL TREATMENT ACT 1945 S165

CRIMINAL JUSTICE ACT 1984 S4

R V GOVERNOR OF DURHAM PRISON EX-PARTE SINGH 1984 1 WLR 704

IMMIGRATION ACT 1971 (UK)

APPLICATION OF GALLAGHER, RE 1991 1 IR 31

ECHR ART 5

AMUUR V FRANCE 1992 22 EHRR 533

CHAHAL V UK 1997 23 EHRR 413

PIGS MARKET V DONNELLY 1936 IR 413

KWEDES V MIN FOR JUSTICE 1996 1 IR 381

1 28th day of August 2000 by Keane C.J.

Keane C.J.

2 This is the decision of the Supreme Court on the reference to it by the President of section 5 and section 10 of the Illegal Immigrants (Trafficking) Bill 1999 (hereafter "the Bill")pronounced pursuant to Article 26, s.2, subsection 1 of the Constitution.

The Reference

3 By order given under her hand and seal on the 30th June 2000 President Mary McAleese referred section 5 and section 10 of the Bill to the court for a decision on the question as to whether the said sections or any provisions thereof were repugnant to the Constitution or to any provision thereof.

Proceedings on the reference

4 Counsel were assigned by the court to present arguments on the question referred to the court by the President. Prior to the oral hearing, Counsel assigned by the court presented written submissions to the court, including submissions that certain provisions of section 5 and section 10 were repugnant to the Constitution. Submissions in writing on behalf of the Attorney General were presented to the court, including submissions that none of the provisions of section 5 or section 10 of the Bill was repugnant to the Constitution.

5 The oral hearing then took place before the court on the 27th and 28th July. During the course of the hearing, the court heard oral submissions by counsel assigned by the court and counsel on behalf of the Attorney General.

Sections 5 and 10 of the Bill

6 The Bill is described in its long title as:

"An Act to prohibit trafficking in illegal immigrants and to amend the Refugee Act 1996and the Immigration Act 1999and to provide for related maters."

7 The effect of Section 5 of the Bill is to preclude any person from questioning the validity of specified decisions or orders made under the Immigration Act 1999, the Refugee Act 1996and the Aliens (Amendment) No 2 Order 1999 otherwise than by way of an application for judicial review under Order 84 of the Rules of the Superior Courts. Such an application must be made within the period of fourteen days commencing from the date on which a person is notified of the decision or order in question unless the High Court considers that there is "good and sufficient reason" for extending the period within which the application is to be made. It must be made by motion on notice to the Minister for Justice, Equality and Law Reform and any other person specified for that purpose by the order of the High Court and leave is not to be granted unless the High Court is satisfied that there are "substantial grounds" for contending that the decision or order in question is invalid or ought to be quashed. The determination of the High Court on an application for leave to apply for judicial review is to be final and no appeal is to lie from the decision of the High Court to the Supreme Court in either case except with the leave of the High Court, which leave is only to be granted where the High Court certifies that its is decision involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken to the Supreme Court. The High Court is also required to give such priority as it reasonably can, having regard to all the circumstances, to the disposal of proceedings in that court under this section.

8 The orders and decisions referred to in section 5 may be made in respect of non-nationals who have entered, or are attempting to enter, the State. They are referred to in detail at a later point in this judgment and include deportation orders.

9 Section 10 of the Bill purports to amend sections 3 and 5 of the Immigration Act 1999. Section 3 of the 1999 Act enables the Minister to make deportation orders in respect of non-nationals coming within specified categories, including those whose application for asylum under the Refugee Act 1996has been refused.

10 The first amendment purported to be effected by that section is the conferring of a power on the Minister to require a person the...