The issuing of deportation orders has been effectively suspended following a High Court declaration yesterday that part of the 1935 Aliens Act is unconstitutional.
Mr Justice Geoghegan found that Section 5 (1) (e) of the Aliens Act, 1935, from which the power to make deportation orders derives, is unconstitutional because of the failure to set out policy or principles on foot of which such orders are issued.
He made consequential declarations that Article 13 (1) of the Aliens Order, 1946, was invalid as is a deportation order made in February 1998 in the case of Mr Sorin Laurentiu (32), a Romanian former footballer now playing with a Bus Eireann team, who has been living in Dublin since 1994.
The judge told Mr Frank Callanan SC, for the State, that he did not believe he could put a stay on a declaration of unconstitutionality. He said the State and Mr Gerard Hogan SC, with Ms Sara Farrell, for Mr Laurentiu, could apply to the court next Thursday in respect of what particular orders the court should make in the light of the judgment.
It is believed the State is considering appealing the decision to the Supreme Court.
He was delivering a reserved judgment on judicial review proceedings taken by Mr Laurentiu, challenging the constitutionality of the Aliens Act and the decision to refuse him refugee status.
In the proceedings, Mr Hogan had argued that Section 5 of the Aliens Act gave excessive legislative powers to the Minister for Justice in respect of deportation orders and did not set out any general principles on which the Minister was to act.
Mr Justice Geoghegan said the Minister for Justice could not have a legislative power in relation to deportation unless some policy or principles on foot of which he was to act were set out in the parent Act, the Aliens Act, 1935.
Given the absence of any set of principles in the 1935 Act relating to deportation the power given to the Minister by Section 5 had to be construed as being a wide power, he said.
"In my view the Oireachtas of Saorstat Eireann did not legislate for deportation. It merely permitted the Minister for Justice to legislate for deportation. There is no inherent reason why an Act of the Oireachtas cannot set out some policy matters at least in relation to deportation."
The judge said he accepted it might be necessary for the protection of the State that there be an ultimate residual power in the Minister to deport any given alien or category of aliens in the interests of State security or possibly even in the interests of the common good of the State.
"But that should be a residual basis for deportation listed after some other specific grounds for deportation have been set out in the parent Act.
"If I am right about this, then the present scheme clearly contravenes Article 15.2 of the Constitution," the judge said. Article 15.2 stipulated that the Oireachtas had exclusive power to make laws for the State, although provision might be made by law "for the creation or recognition of subordinate legislatures and for the powers and functions of these legislatures".
Even if he was wrong that specific principles or guidelines for deportation had to be set out in the Aliens Act, it was still the case that a general power to make deportation orders conferred on the Minister for Justice, of the kind conferred by Article 13 of the Aliens Order, 1946, should be conferred by the 1935 Act itself and not by a statutory instrument such as the 1946 Order.
"The Minister is not entitled to confer on himself the power to deport as in Article 13 (1) of the 1946 Order. Such a provision would have to be in the Act itself." He said Article 13 (1) contained substantive legislation and that was prohibited by Article 15.2 of the Constitution.
Mr Justice Geoghegan refused other orders sought by Mr Laurentiu directing the Minister for Justice to consider his application for refugee status in accordance with the United Nations Convention relating to the Status of Refugees, 1951, as amended by the "Von Antrim" letter and quashing the decision to refuse him refugee status.
The judge said that, in processing Mr Laurentiu's claim for refugee status, the Department of Justice had quite properly consulted the office of the representative for the UK and Ireland of the United Nations High Commissioner for Refugees.
In a letter from the deputy representative to the Department, Mr Laurentiu's background was set out fully, the judge said. He had joined the Securitate as a trainee in 1984 but left two months later. After that he was primarily a professional footballer playing for various clubs in Romania and Hungary. Ethnically he was Hungarian.
Mr Laurentiu had alleged that he and his wife, from whom he was now separated, had joined the Securitate for a short training period and that a former colonel there had exercised psychological pressure on them after their departure with alleged adverse effects on their exam results. The judge said the letter had said there was no corroborating proof of these matters.
Mr Laurentiu also had alleged he was caught up in a demonstration in 1994, arrested and beaten in custody and freed after three days.
The UNHCR representative had said the human rights situation in Romania had greatly improved since 1989 and the office was of the view that, unless further information was forthcoming, the circumstances put forward by Mr Laurentiu did not themselves amount to persecution under the UN Convention and that he had not established a claim to refugee status, the judge said.
Mr Justice Geoghegan also found that a letter of January 13th, 1997, from the Department of Justice to Mr Laurentiu, refusing him refugee status, did contain a sufficient statement of reasons for the refusal.
