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GAZETTE
DECEMBER 1995
Immigration and Citizenship Law
- Need for Reform
By Peter Finlay BL
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that UK Act was later repealed,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,
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
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