Brian Lenihan Jnr (Dublin West, Fianna Fail)

The Bill before the House aims to address matters arising from the High Court judgment of 22 January last in the case of Leontjava and Chang. The net effect of the judgment has been to cast serious doubt on the validity of all statutory provisions dealing with the control of entry to and stay in the State by non-nationals. There has been criticism of officers of the Department of Justice, Equality and Law Reform in the course of debate on this matter. I wish to put on the record that decisions on this Bill have been made by the Minister who accepts full political responsibility for them.

Before I go into detail on the legal and practical issues posed by the High Court judgment, I will set out for the information of Senators the nature of immigration and its relationship with the legal and constitutional systems of the State. I do this to help avoid in this debate some of the misconceptions which can, very understandably, permeate discussion of this and related subjects. A non-national has no right, as such, to be in or to come into the State. Permission to enter or to be in the jurisdiction is a privilege or concession bestowed on the non-national by the State. The primacy of the importance of the control of non-nationals entering the State has been universally recognised from earliest times. It is a valuable and essential tool and it is at the disposal of every sovereign state.

The two seminal High Court judgments in the Pok Sun Shum and Osheku cases, both reported in 1986, make it clear that the State has extensive obligations and duties as a matter of Executive power to control the entry and presence in the State of non-nationals in the interests of the common good. The Supreme Court has cited these authorities with approval in a long line of cases which culminated in last year's landmark decision in the case of L and O. This case concerned the residence of the non-national parents of Irish-born children. The court has also cited the Article 26 referral by the President of the Illegal Immigrants (Trafficking) Bill in 2001. In its Article 26 reference, the Supreme Court reiterated that the legal provisions in this area related to an inherent element of State sovereignty over national territory, long recognised in both domestic and international law. It is clear that the State's power to exercise immigration controls is not, in fact, a repressive, punitive or draconian power. I am sure such words will echo through today's debate. It is, in fact, a duty which falls on the Government in protection of Irish society which includes, of course, the many non-nationals who live and work here in accordance with our legal system.

The powers and functions of the Executive in immigration matters are generally exercised by or under the direction of the Minister for Justice, Equality and Law Reform on behalf of the Government. The Supreme Court has made it clear that immigration powers can be exercised by the Executive in the absence of legislation. However, the Legislature has chosen to legislate for procedures to govern the exercise of Executive power in immigration matters. The main provisions have, for a long time, been contained in the Aliens Act 1935 and the aliens orders made thereunder. In the 1999 case of Laurentiu, the Supreme Court found that the manner in which the Legislature had conferred on the Minister through the 1935 Act the power to make secondary legislation on deportations in the form of aliens orders was inconsistent with the Constitution. Consequently, the Oireachtas enacted the Immigration Act 1999 which, as well as framing the deportation process in the form of a primary statute, provided in section 2(1) that every order made before the passing of the Act under section 5 of the Aliens Act 1935 shall have statutory effect as if it were an Act of the Oireachtas. That is crucial. It was not an Act of the Oireachtas of Saorstát Éireann, it was an Act of this Oireachtas enacted in 1999 to confer statutory force on the orders in question. The aim of that provision was to remedy the flaw identified by the court in the Laurentiu case as a protection in the interests of the common good of the provisions of the aliens orders as they stood against attack on similar lines. The aliens orders have been the foundation and charter of the operation of our immigration control system since their adoption many decades ago.

Last week's High Court judgment related to the validity of the 1935 Act and the 1946 order. The court found there was no basis in the 1935 Act for the provision of the 1946 order which imposed a condition regarding duration of stay on a non-national's permission to enter the State. The court found that another aspect of the 1946 order which related to the power of an immigration officer or a Garda to ask non-nationals to produce identity documents was invalid. It also found that the protection the Oireachtas conferred through section 2 of the 1999 Act on the aliens orders was, itself, unconstitutional. It is evident that the practical effects of this judgment are very serious and far reaching. They go to the heart of the immigration control function as exercised in the State in respect of non-European Economic Area nationals. Once the High Court grants and perfects the declarations which it signalled in the judgment of Mr. Justice Finlay on 22 January, every aspect of the operation of immigration controls thought to be addressed by the 1946 aliens order will be without statutory basis or so open to challenge as to render the controls extremely difficult to operate. The State has inherent powers in this area, but they require perfection and clarification in some legislative detail. To date, that legislative detail has been provided through the machinery of the aliens order which is now open to challenge. Aspects of the machinery in question include the appointment of immigration officers, immigration controls on non-nationals entering or seeking to enter the State including refusal of leave to land, permission to remain in the State including conditions as to whether the non-national is permitted to work and as to duration of stay, Garda registration of non-nationals, powers to check non-nationals for evidence that they are permitted to remain in the State and power to charge non-nationals for breaches of their permission to remain or for illegal presence in the State and to arrest and detain for such offences.

It should be borne in mind that these implications are not for management of entry into the State. There are also practical implications for the many non-nationals in the State already. Over 128,000 non-nationals were in current registration with the Garda in 2003. These are persons who are in compliance with our immigration law and, presumably, anxious to remain so. The expectation of a non-national in compliance with immigration law, for example, is that when seeking a re-entry visa for return to the State after a trip back home, he or she can rely on valid documents to support his or her application. When seeking to become naturalised, he or she can show with those valid documents that the statutory conditions for naturalisation are met. That can no longer be the case if the law is invalid or has a cloud of invalidity hanging over it.

The judgment also has longer-term implications for the Oireachtas in that it appears to rule out the possibility of legislating by reference to a text not actually appearing in the Bill in question. This not only has serious implications for future legislation, it also casts doubt on the many instances in legislation already on the Statute Book where the Oireachtas has chosen to legislate by reference to texts which are not themselves set forth in the Acts in question. Legislation by reference to a statutory instrument or subordinate legislation is a familiar feature of the legislative landscape of this jurisdiction. Senators should be aware that the judgment has far reaching implications in contexts beyond that of the machinery under discussion today. The Minister is advised that there is a sound basis for appealing the High Court judgment to the Supreme Court. It is the Government's intention to do so. Realistically, it is unlikely that a decision will be reached by the Supreme Court in the very short term.

In the interim, the status of immigration law and, in particular, the power to exercise controls on the entry of non-nationals into the State and on their stay in the State would at best be in a state of uncertainty and in practical terms could well be unworkable. The remaining parts of the aliens order are vulnerable and open to challenge. The inroads made into statutory provisions mean the effect of the decision of the High Court is a serious diminution of the powers available to the Executive to fulfil its obligations to its citizens to control the entry of non-nationals to the State. Accordingly, it is necessary to introduce what is, in essence, an emergency measure to address issues arising from last week's judgment. I accept this is an emergency measure and I understand the reservations Senators have expressed about it this morning.