Ireland: Illegal Immigrants (Trafficking) Bill constitutional
01 September 2000
After the Supreme Court ruled the Illegal Immigrants (Trafficking) Bill constitutional, Irish civil liberties and refugee support groups predict a large increase of appeals in an already overburdened asylum determination system (see Statewatch vol 10 no 1).
On 30 June, the Irish President, Mrs McAleese, for the first time exercised her powers under Article 26 of Ireland's 1937 Constitution and referred controversial sections of the Illegal Immigrants (Trafficking) Bill to the Supreme Court to examine its constitutionality. Section 5 of the Bill was tested for violation of the constitutional right of access to the courts and breach of the constitutional guarantee of equality before the law: whilst Irish citizen's are given six months to seek judicial review on a decision, parts of Section 5 curtail the time within which a rejected asylum seekers can legally challenge a deportation order in the High Court by way of judicial review to 14 days. Section 10 of the same Bill allows for immigration officers to detain asylum seekers for up to eight weeks if they reasonably suspect the person has forged or destroyed identity documents, intends to leave the country or are intending to avoid deportation. The concept of preventative detention was challenged for its arbitrary nature and as a potential abuse of power. Both sections were deemed constitutional by the Supreme Court on 28 August and the Bill was signed into law by the President the same day.
Although the Act started out as a Bill to criminalise trafficking in persons, its scope was extended in amendments to the legislation after the initial consultation procedure between NGO's and the relevant parliamentary committee: apart from extending gardaí powers of detention and limiting the time limit for judicial review, the Act allows prison sentences of up to 10 years or an unlimited fine for aiding illegal entry, gives gardaí new powers to seize and forfeit vehicles used by "traffickers" and following recent Anglo-Irish plans to exchange intelligence with regards to immigration, allows for the fingerprinting of all asylum-seekers.
After the announcement of the decision, human rights and civil liberties groups said it was "manifestly discriminatory". Peter O'Mahony, the Irish Refugee Council's chief executive, thought the ruling "amounts to an unacceptable, unjustified and discriminatory restriction" and the Irish Council for Civil Liberties (ICCL) said the court's reasoning was "minimalist and unduly non-interventionist as regards the rights of failed asylum seekers." In relation to the legal challenge on grounds of discrimination, the ruling makes a clear distinction between the rights of asylum seekers and citizens. It states that:
"The rights, including fundamental rights, to which non-nationals may be entitled under the Constitution do not always coincide with the rights protected as regards citizens of the State, the right not to be deported from the State being an obvious and relevant example."
A legal correspondent of the Irish Times points out that this reasoning "marks a difference in emphasis from the thrust of many recent judgements, when there has been a tendency to afford non-citizens the same rights as citizens once they are actually in the State and appealing to its courts" and points to the fact that this shift towards categorising aliens' rights as inferior might be driven by the pressure to harmonise EU migration policies.
Despite this criticism, human rights groups argue that the judgement actually paved the way for a number of avenues to challenge decisions taken under the new legislation. The decision states that
"The discretion of the High Court to extend the 14-day period is sufficiently wide to enable persons, who having regard to all the circumstances of the case including language difficulties, communications difficulties, difficulties with regard to legal advice or otherwise, have shown reasonable diligence, to have su