Supreme Court declares Article 5 of Aliens Order 1946 ultra vires due to unauthorized delegation of ministerial powers.
Ireland (IE)
Legislator summary
AI generatedThe Supreme Court declared Article 5 of the Aliens Order 1946 ultra vires because it attempted to delegate the Minister's statutory powers to immigration officers. Applicants challenged the validity of conditions imposed on their stay, arguing the Minister lacked authority to delegate these specific restrictions. The court upheld the Chief Justice's view that while the Minister could set conditions on entry, the specific delegation to officers exceeded the power granted by the 1935 Aliens Act.
Legislator headnote
AI generatedSection 5(1) of the Aliens Act, 1935; Article 5 of the Aliens Order, 1946: The power conferred on the Minister to impose conditions on aliens cannot be delegated to immigration officers, rendering such delegation ultra vires.
Keywords
AI generatedCited Legislation
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THE SUPREME COURT
Keane C.J.
Murray J.
McGuinness J.
Fennelly J.
McCracken J.
BETWEEN
39 & 53/04
ILONA LEONTJAVA
APPLICANT
AND
THE DIRECTOR OF PUBLIC PROSECUTIONS, IRELAND AND THE ATTORNEY GENERAL
RESPONDENTS
AND
DISTRICT JUDGE MARY COLLINS
NOTICE PARTY
BETWEEN
40 & 52/04
LIU CHANG
APPLICANT
AND
THE DIRECTOR OF PUBLIC PROSECUTIONS, IRELAND AND THE ATTORNEY GENERAL
RESPONDENTS
AND
DISTRICT JUDGE BROPHY
NOTICE PARTY
JUDGMENT delivered the 23rd day of June 2004, by Fennelly J
I fully agree with the orders proposed by the Chief Justice and with his reasoning in all matters save one point of detail. This concerns
the reason for concluding that Article 5 of the Aliens Order, 1946 as inserted by Article 3 of the Aliens (Amendment) Order, 1975 is
ultra vires the power conferred on the Minister by section 5(1) of the Aliens Act, 1935.
The section authorised the Minister by order to do “all or any of the following [listed] things in respect either of all aliens or of aliens
of a particular nationality or otherwise of a particular class, or of particular aliens…” Article 5(1) purported to confer a number of
powers on an immigration officer. Nothing in the authorising section entitled the Minister to delegate his powers in this way. For this
reason, I agree with the Chief Justice that the Article 5(6) is ultra vires the section.
I part company with the Chief Justice’s judgment in relation to one point only. I believe that it was within the power conferred by the
section to make orders authorising the imposition of conditions affecting the length of stay of aliens. Section 5(1)(b) speaks of
“restrictions and conditions in respect of landing in or entering into Saorstát Eireann...” I believe that it is inherent in the very notion
of authorising an alien to land in the State that provision be made for the duration of his permitted stay. It is something that arises so
naturally from the very fact of entering a foreign country that it did not need to be spelled out. The first type of condition that would
spring to mind, where an alien is given permission to enter the State is one relating to the duration of his or her permitted stay.
However, as I have already indicated, the Minister was not entitled to delegate this power to immigration officers, which is sufficient
to invalidate the provision.