The High Court has struck down as unconstitutional a provision of the Immigration Act making it a criminal offence for a non-national to fail to produce, without "a satisfactory explanation", passport or other identity documents on demand by gardaí.
The President of the High Court, Mr Justice Nicholas Kearns, today upheld a challenge by a West African woman to the constitutionality of Section 12 of the Immigration Act 2004 which requires production of identity documents on demand by gardaí and stipulates failure to do so without "satisfactory explanation" is a criminal offence.
While Section 12 was designed as an immigration control mechanism, "its vagueness is such as to fail basic requirements for the creation of a criminal offence", the judge found. The failure to define the term "satisfactory explanation" created vagueness and uncertainty and "considerable potential" for arbitrary applications of that term by gardaí.
There was no requirement a Garda should have formed a reasonable suspicion a non-national was behaving unlawfully before requiring them to produce a satisfactory explanation for the absent documents, he added. Section 12 was ambiguous and not sufficiently precise to reasonably enable a person to foresee the consequences of their acts or anticipate what form of explanation would suffice to avoid prosecution.
Section 12 also had potential to breach the right against self-incrimination under the Constitution and Article 6 of the European Convention on Human Rights as a silent response to a request equated to failure to produce a satisfactory explanation, he added. UK legislation dealing with these situations met the concerns he had outlined, he indicated.
Given his findings, the judge granted a declaration Section 12 is unconstitutional and made an order preventing the prosecution of Ebere Dokie on charges under Section 12 carrying a maximum one year jail sentence and/or a fine of up to €3,000.
The State had argued Section 12 was a core part of laws for control and regulation of the entry of non-nationals into the State and their obligations while here.
Ms Dokie (40), who claims she is from Liberia and her passport was destroyed in a fire in 1989, was charged under Section 12 after being arrested at Dublin Airport in April 2008 when she, her daughter and two young boys arrived on a flight from Nigeria and attempted to enter the State without any passports.
She claimed she met the boys at Lagos Airport the previous day and, at the request of their father, agreed to take them to Ireland. She claimed the boys were with an agent who had arranged her travel.
The District Court on May 28th, 2008, ruled the Section 12 charge arising from her Dublin Airport arrest was void, but she was rearrested on Chancery Street, Dublin, on May 29th and charged under Section 12 with failing to produce the same identification documents.
The facts of this case "illustrate all to clearly" the serious problems faced in trying to control and deal with undocumented persons here, Mr Justice Kearns said.
Even if he was mistaken Section 12 was unconstitutional due to its arbitrariness, legal uncertainty and offending the principle a person is not obliged to incriminate themselves, he ruled the use of Section 12 in Ms Dokie's case was an unconstitutional use of a legislative provision designed to be deployed in different circumstances.
Because Ms Dokie had arrived at Dublin airport with no identifying documents, the appropriate Section to be applied in her case was Section 11 of the 2004 Act, the validity of which was not challenged in this case, he said.
Section 11 requires every person landing in the State to have a valid passport or equivalent document and to provide this to an immigration officer. Failure to do so is a criminal offence.
Mr Justice Kearns described as "unconvincing" and "far-fetched in the extreme" the prosecution's explanation Section 11 was not used because of some apprehension a forged passport might afford a full defence to Ms Dokie.
While Section 12 might be a more convenient way of dealing with non-nationals who have moved on into the community and are suspected of having no proper identification documents, these were not the circumstances here, This was not a "roadside check" of a person who had integrated into the community.
Section 11 provides for a "once and for all type" offence which seemed more appropriate in this case, he said. Unfairness could arise if Section 12 was deployed where people arrived at airports with no passports. Ms Dokie could be subject to repeated prosecutions and would be guilty of a criminal offence on each occasion.
The High Court previously decided Section 12 was not to be used as a means for identifying a particular person, he also noted.
The judge rejected an additional argument by Ms Dokie that Section 12 was unconstitutional on grounds it was a disproportionate measure enacted by the State. There was a "manifest need" for effective measures to regulate the entry into the State of undocumented non-nationals, he said.
