Until 1999 the Aliens Act (1935) had been the primary legislation governing the operation of the State’s immigration controls. Orders made under Section 5 of that Act (principally the Aliens Order 1946 as amended by an extensive series of later orders) set out a detailed scheme for controlling the entry of non-nationals into the State, including provisions granting permission to be in the State, requiring non-nationals to register periodically with the Garda Síochána (police), requiring the production of passports or identification and enabling deportation.
In the instant case, the first-named applicant had been arrested on the basis that she had broken a condition of her leave to land in the State. The second-named applicant was arrested on the basis inter alia that he had failed to produce sufficient identification when called upon to do so by the Gardai. Both applicants were charged with breaches of the Aliens Order 1946 and the Immigration Act 1999. The applicants issued judicial review proceedings to prohibit their trials contending that the relevant provisions were invalid and unconstitutional. Specifically, they contended that the Aliens Order 1946 was ultra vires the Aliens Act 1935 and that Section 2 of the Immigration Act 1999 was unconstitutional in that it attempted to delegate legislative functions to the Executive.
The High Court granted orders of prohibition and declared that Article. 5(6) of the Aliens Order 1946 (as inserted by Article 3 of the Aliens (Amendment) Order 1975) was ultra vires Section 5(1) of the Aliens Act 1935, and that Section 2 of the Immigration Act 1999 was repugnant to the Constitution. The Court essentially found that the Order was created by Ministerial sanction circumventing the Constitutional process of creating primary legislation and that Section 2 of the 1999 Act unconstitutionally purported to grant the 1946 Order statutory effect. As a result of the High Court’s judgment orders made pursuant to the Aliens Act were generally susceptible to constitutional challenge. The DPP appealed the High Court’s judgment to the Supreme Court.
The Supreme Court reversed much of the High Court’s judgment and particularly with regard to Section 5(1) of the Aliens Act 1935 and Section 2 of the Immigration Act 1999, and held that the Oireachtas was entitled to make legislation “by reference” to material not contained in the body of an act itself and that the applicants had not discharged the onus on them of proving that Section 2 of the Immigration Act 1999 was unconstitutional.
