Many applications are likely to be brought before courts on foot of ajudgment that parts of immigration legislation are unconstitutional, writes Mary Carolan
An Albanian-Kosovan man facing a charge of failing to satisfactorily produce registration documents was freed by the High Court yesterday. This followed a landmark judgment this week which found parts of the immigration legislation unconstitutional. The State did not oppose the man's release.
The man's application was brought some 24 hours after the judgment of Ms Justice Finlay Geoghegan, and legal sources predicted many similar applications will be brought. The Minister for Justice has said amending legislation is to be introduced.
Yesterday morning, Mr Edmund Sweetman, for the man, asked Ms Justice Finlay Geoghegan to order an inquiry into the legality of his client's detention in Cloverhill Prison on a charge brought under legislation found unconstitutional by the judge on Thursday.
Mr Sweetman said the man had been in custody since December 1st last and the application for release was on two grounds, one relating to the unconstitutionality of the legislation.
The judge directed that an inquiry under Article 40 of the Constitution would be held yesterday afternoon and ordered the prison authorities to certify the basis of the man's detention.
When the case came before the judge later, she was told by Mr Pat Reilly, for the State, that, on receipt of the order for an Article 40 inquiry, it was decided to release the man unconditionally.
Ms Justice Finlay Geoghegan said that, as the State was not seeking to stand over the legality of the man's detention, she would make an order, on consent, for his immediate and unconditional release. She also awarded costs of the application to the man.
Ms Justice Finlay Geoghegan decided on Thursday to uphold challenges brought by a Chinese man and a Latvian woman to parts of the immigration legislation.
Legal experts have said the judgment has major implications for Garda control of the movements of non-nationals and the Minister for Justice in deciding how the problems should be tackled. It was also described as fundamentally important for how laws are passed.
In her judgment, Ms Justice Finlay Geoghegan found that Section 2 of the Immigration Act 1999, a new law enacted by the Government to make provisions of the Aliens Order 1946 lawful, was unconstitutional. Section 2.1 was not enacted within the framework for enacting laws as set out in the Constitution, she found.
The Oireachtas had sought, through Section 2.1, to give the Aliens Order 1946 statutory effect as if it was an Act of the Oireachtas but without the provisions of the order being contained in an Act of the Oireachtas. The Constitution constrained the Oireachtas procedurally from doing this.
The only provisions which might be treated as a "law" as defined by the Constitution were laws made by the Oireachtas such as provisions contained in a Bill passed by both Houses of the Oireachtas, signed by the President and promulgated into law.