This Act makes it an offence to organise or knowingly facilitate the entry into the State of an illegal immigrant or a person who intends to seek asylum. The Act also amended various acts, including the Refugee Act 1996 and the Immigration Act 1999.
Section 5 of the Act provides that certain prescribed decisions made in the immigration and asylum processes, including the Minister’s decision refusing a recommendation of refugee status, the Minister’s proposal to deport, and the Minister’s decision to deport, cannot be questioned other than by way of judicial review. The Act also stipulates certain requirements for such applications for judicial review, including that the application for leave (i.e. permission) for judicial review be made within fourteen days of the date of the notification of the impugned decision (such time being extendable by the High Court only where the Court is satisfied that there is good and sufficient reason to so extend), that the application for leave be made on notice to the Minister for Justice, Equality and Law Reform, and that the Court shall not grant leave unless it is satisfied that there are substantial grounds for contending that the impugned decision should be quashed.
The Supreme Court has held that the interpretation of the phrase “substantial grounds” means “reasonable, arguable and weighty, and not trivial or tenuous.” The Act provides that a determination of the High Court on a matter to which the Section applies can be appealed to the Supreme Court only where the High Court certifies that its 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. These provisions are more stringent that the normal rules for judicial review, as laid out in Order 84 of the Rules of the Superior Courts.
Considerable controversy followed the introduction of Section 5, and Section 10, which provided extra measures to facilitate the deportation of non-Irish nationals from the State, as well as expanding the grounds on which they may be detained pending such deportation. The Bill was passed through the Oireachtas but the President referred these sections to the Supreme Court. The President of Ireland performs the last step in the legislative process by signing bills into law. If she or he has concerns about the constitutionality of a bill the President may refer it to the Supreme Court before signing. Before making such a referral the President must first consult the Council of State, i.e. a group comprising former prime ministers, deputy prime ministers, presidents and others. The constitutionality of any bill signed following this type of referral may not be subsequently challenged in the courts. The Supreme Court found that neither section was repugnant to the Constitution.