State (McCaud) MP; Anor.) v O'Rourke

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Egan
• Judgment Date: 01 January 1986
• Neutral Citation: 1985 WJSC-HC 2405
• Date: 01 January 1986
• Docket Number: [1985 No. 351 SS]

KUGAN v. STATION SERGEANT

IN THE MATTER OF THE CONSTITUTION. THE STATE AT THE PROSECUTION OF SITHAMPARANATHAN KUGAN AND NABARAJAH ELAMKUMARAN

-v-

THE STATION SERGEANT FITZGIBBON STREET GARDA STATION

1985 WJSC-HC 2405

No. 351 SS/1985

THE HIGH COURT

Subject Headings:

ALIEN: landing permission

CONSTITUTION: personal rights

Citations:

ALIENS (AMDT) ORDER 1975 SI 128/1975

ALIENS (AMDT) ORDER 1975 SI 128/1975 S3(2)

ALIENS (AMDT) ORDER 1975 SI 128/1975 S3(4)

ALIENS (AMDT) ORDER 1985 SI 154/1985

CONSTITUTION ART 40.4.2.

ROYLE, STATE V KELLY 1974 IR 259

1 Judgment of Mr. Justice Egan delivered the 1st day of July, 1985

2 The applicants in this case are citizens of Sri Lanka and are stated to be Tamils. On the 23rd day of June 1985 they arrived at Dublin Airport with airline tickets which disclosed that they had flown from Colombo, Sri Lanka, to Paris and thence to Dublin. Their Passports were checked and it was noted that no Visa had been stamped thereon.

3 The absence of a Visa would have presented no problem if they had arrived a few weeks earlier but it became a factor as and from the 31st May 1985 when the Aliens (Amendment) Order 1985 (S.I. No. 154 of 1985) was made by the Minister for Justice.

4 Prior to the 31st May 1985 an Immigration Officer could refuse leave to land to an alien coming from a place outside the State other than Great Britain or Northern Ireland where the alien not being a citizen of a State specified in the Sixth Schedule to the Aliens (Amendment) Order 1975 (S.I No. 128 of 1975) was not the holder of a valid Irish Visa. The Sixth Schedule to this Order enumerated 79 different places including Sri Lanka. The position, therefore, prior to the 31st May 1985 was that a citizen of Sri Lanka could not be refused leave to land in the state for the sole reason that he was not the holder of a valid Irish Visa.

5 The position was changed, however, on the 31st May 1985 when the 1985 Order was made by the Minister. Under this Order the Sixth Schedule to the 1975 Order was amended by the deletion of "Sri Lanka". The applicants were questioned for a few hours after which a "Notice of refusal of leave to land" was served on each of them. The Notices were identical in each case and contained the following words:-

6 "You are being refused leave to land because I am satisfied that not being a Citizen of a State specified in the Sixth Schedule to this Order (as amended by the Aliens Order 1985) you are not the holder of a valid Irish Visa". The Notices also informed the applicants that they would be detained in Fitzgibbon Street Garda Station until such time as they would be removed from the State and they were, in fact, so detained.

7 I propose to deal first of all with some arguments which do not, in my view, determine the final problem. It was suggested by the respondents that the remedy of Habeas Corpus Procedure might not properly be sought by the applicants as they are not Citizens of the State but under Article 40.4.2° of the Constitution it seems clear that such refief can be sought by "any person" and I so hold. On the other hand, it was argued on behalf of the applicants that the provisions of Sec. 3(4) of the 1975 Order had not been...