The Gazette 1995

GAZETTE

DECEMBER 1995

Immigration and Citizenship Law - Need for Reform

By Peter Finlay BL

arrangements will be made to deport you within twenty-one days." Not surprisingly this form of letter is usually interpreted by its recipients as an ultimatum to leave the country within twenty-one days. No reference is made to an appeal or to any procedure whereby a non-citizen may dispute his perceived removal. This formed part of the reason why the High Court, in a recent decision (Tang and others v the Minister for Justice and others, Flood J. unreported, October 1994) now under appeal to the Supreme Court, quashed a decision taken in this manner requesting a married man and his family to immediately leave the country. This is consistent with the approach of the Supreme Court in an earlier decision in 1988, Fajujonu v The Minister for Justice, Ireland and the An. Gen. [1990] 2IR, 151 in which two Irish born children of a Nigerian father and a Moroccan mother sought to assert a right to remain and live with their parents in the State. In that case, the Court held that the Minister for Justice could exercise his power to deport the family, only after undertaking an enquiry into the constitutional rights of the Irish born children on the one hand and his duty to protect the State on the other. Having satisfied himself that the presence of the parents constituted a sufficiently serious threat to the State, steps then could be taken to remove the family. While the Court was sensitive to what could be called the broader duties of the State towards all its citizens, the Court also manifested concern at the prospect of a law-abiding family being unilaterally ejected from the State

Few would disagree that the State has a constitutional duty to protect its citizens and that one of the ways in which this obligation arises is in the control of immigrants and refugees as well as the selective conferment of citizenship on non-nationals. However, the statutory mechanism by which this aim is achieved, contained in the Aliens Act, 1935 and the Irish Nationality and Citizenship Acts 1956 - 93 has, in the past, and will continue to generate legal difficulties as well as political controversy. The legal antecedents of the Aliens Act 1935 are to be found in two UK statutes, the Aliens Restrictions Act, 1914 and the British Nationality and Status of Aliens Act 1914. The first of these 1914 Acts was, as the title suggests, a restrictive measure aimed at controlling the movement of aliens in and out of the United Kingdom during a time of war. In such national emergency Parliament gave His Majesty's government power to introduce measures prohibiting aliens from landing or embarking in the UK, together with other powers of deportation. The provisions of Section 5 of the 1935 Act are identical, in large part, to Section 1 (1) of the Aliens Restriction Act, 1914. While that UK Act was later repealed, Ireland has continued to rely on the provisions of the 1935 Act. It is curious too that in the same section of the 1935 Act a widely drafted discretion was conferred on the Minister for Justice, whereby the Minister was entitled to introduce an Order providing for the deportation of an alien together with other restrictions "whenever he thinks proper." In the Dáil debates of 1935 both Eamon de Valera and Frank Aitken were anxious to give assurances that the 1935 Act would not be used as an instrument of immigration control in 356

Peter Finlay BL

Ireland in the everyday sense, but would be reserved to the control of aliens in emergency situations. However, in recent years, at least, it has been the practice of the Department of Justice to rely heavily on these provisions of the 1935 Act to control non-EU nationals moving to this country. As a means of controlling what appears to be an unfettered discretion granted to the Minister for Justice in the 1935 Act, it was considered necessary by the Oireachtas to insert in the Act a requirement that the Minister introduce an Order by way of statutory instrument, before being entitled to rely on any of the deportation provisions. However, today, this procedure by way of Order seems rarely if ever to be followed. More often the Department of Justice, when it wishes a non-EU national to depart from the country, simply issues a letter giving the person twenty-one days to leave. This, they argue, is not a form of deportation but merely a request. The standard letter usually includes the phrase "if you fail to comply with this request,

pursuant to the administrative provisions of the Act of 1935.

Equally, some of the statutory provisions dealing with Irish citizenship found in the Irish

Nationality and Citizenship Acts 1956 - 93 do not bear close scrutiny. While