The IHRC welcomes the judgment today of the President of the High Court in ED v. DPP, in which he found Section 12 of the Immigration Act 2004 to be unconstitutional. The legislation allows a non-national to be prosecuted for failing to produce a passport or similar identification to a member of An Garda Síochána on demand or failing to provide an adequate reason for not doing so.
The IHRC appeared as Amicus Curiae in the proceedings before the High Court, which were heard over three days last month. The applicant in the case was an undocumented asylum seeker and had been charged twice and detained for over three months under the legislation.
In making its Submissions to the Court, the IHRC raised a number of fundamental human rights concerns in relation to the legislation including:
i. The privilege against self incrimination as protected under the Constitution and the European Convention on Human Rights;
ii. The right to liberty;
iii. The right to fair procedures and a trial in due course of law.
The IHRC also placed emphasis on the protections the State must afford to asylum seekers and refugees under the UN Convention relating to the Status of Refugees (and other International Instruments) and pointed out that the legislation in question placed those protections in jeopardy if it resulted in a penalty being imposed on an asylum seeker merely by virtue of the fact they had arrived in the State undocumented.
Welcoming today’s judgement, Dr Maurice Manning, President of the IHRC stated:
"The IHRC had previously expressed its concerns about this legislation to Government in considering the Immigration, Protection and Residence Bill which fell with the last Dáil. At that time we called on the Government not to reintroduce the same provision in the Bill. This Judgment is timely, as it gives the new Minister for Justice, Equality and Defence an opportunity to consider the safeguards that should be introduced to ensure that asylum seekers are not indirectly penalised for arriving in the State undocumented, where they have a genuine reason for doing so. In addition, foreign nationals in the State should not be subjected to a provision of the criminal law where it is unclear when or how they might fall foul of it. The Judgment is clear that when the State pursues its legitimate objective to maintain and control the immigration system, it cannot do so in manner that breaches the well established constitutional protections determined by our Courts."
Mr Éamonn Mac Aodha, IHRC Chief Executive also welcomed the Judgment stating that:
"the legislation had clearly failed to strike the right balance between the rights of foreign nationals in the State, particularly a group as vulnerable as asylum seekers, and the legitimate interest of the State in maintaining the integrity of the immigration system".
Mr Mac Aodha continued:
"The intervention of the IHRC in these proceedings was important in raising the broader human rights standards that may usefully contribute to the interpretation of the Constitution."
The full text of the IHRC’s written submissions is available on the IHRC’s website.
ENDS/
For further information, please contact:
Fidelma Joyce
Irish Human Rights Commission
Tel: 01 8589601 Mobile: 087 7834939
Notes to Editors
Under section 8(h) of the Human Rights Commission Act 2000, the IHRC may, at the discretion of the High Court or the Supreme Court, appear as amicus curiae in proceedings that involve or are concerned with the human rights of any person.
Section 2 of the Human Rights Commission Act, 2000 defines "human rights" to include those rights conferred on or guaranteed to persons under the Constitution and under any agreement, treaty or convention to which the State is a party.
The IHRC first appeared as amicus curiae before the Supreme Court in April 2005 in the case of Dublin City Council v Fennell which involved issues regarding the interpretation and effect of the European Convention on Human Rights Act. Since then it has been granted liberty to appear before the Supreme Court and High Court in twelve cases.
The IHRC was put on notice of these proceedings pursuant to section 6(1) of the European Convention on Human Rights Act 2003 which require certain human rights cases to be notified to the Commission.
The IHRC’s Strategic Plan 2007-2011 Promoting and Protecting Human Rights in Ireland highlights the importance of promoting a society that values inclusiveness and diversity through respect for human rights in its Goal 4 including in relation to asylum seekers, refugees, immigrants and migrant workers.
Section 12 of the Immigration Act 2004 stipulates that a non-national is guilty of an offence should he or she fail to produce a valid passport or equivalent document on the demand of any immigration officer or member of the Garda Síochána, or not provide "a satisfactory explanation of the circumstances which prevent him or her from so doing".
The European Convention of Human Rights provides the following:
Article 5 Right to liberty and security
1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.
Article 6 Right to a fair trial
1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.
2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.
3. Everyone charged with a criminal offence has the following minimum rights:
(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;
(b) to have adequate time and facilities for the preparation of his defence;
(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;
(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;
(e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court.
The 1951 Convention relating to the Status of Refugees provides the following:
Article 27 Issuance of identity papers
The Contracting States shall issue identity papers to any refugee in their territory who does not possess a valid travel document.
Article 31 No penalties merely on account of illegal entry presence
1. The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.
2. The Contracting States shall not apply to the movements of such refugees restrictions other than those which are necessary and such restrictions shall only be applied until their status in the country is regularized or they obtain admission into another country. The Contracting States shall allow such refugees a reasonable period and all the necessary facilities to obtain admission into another country.