The Irish Constitution does not include or define the right to freedom of movement. Migration and freedom of movement are issues left to the Executive to legislate on. Irish immigration policy is made up of a combination of legislation and government policy. Certain statuses are defined in legislation while others are discretionary (see 8.2 – Immigration law and policy).

More

The Irish Constitution does not include or define the right to freedom of movement. Migration and freedom of movement are issues left to the Executive to legislate on. Irish immigration policy is made up of a combination of legislation and government policy. Certain statuses are defined in legislation while others are discretionary (see 8.2 – Immigration law and policy).

The common law has however begun to define the parameters of migrants’ fundamental rights in Ireland. The Supreme Court have stated that it approves of the general principle of wide powers being given to a Minister in relation to the control of aliens in the common good. However the exercise of such powers must be consistent with those conferred by legislation, power cannot simply be completely delegated to the Executive as this would involve the use of legislative power by a body not authorised to do so under Article 15.2 of the Constitution. The Supreme Court may therefore strike down Orders under legislation that are inconsistent with this principle in the Constitution. This occurred in the case of Laurentiu v. Minister for Justice in 1999 involving a failed asylum seeker, where the undefined power of deportation under the Aliens Order 1946 was declared unconstitutional.

The most recent Supreme Court judgement was on the rights of parents of the Irish citizens. As children born in Ireland are entitled to Irish citizenship, providing they fulfil certain criteria, parents of those children were entitled to remain in Ireland on the basis of their parentage. A 1990 Supreme Court judgment (the Fajujonu case) held that the parents of three Irish born citizens had a strong claim to residence in Ireland. This was because they have been living in the country for an ‘appreciable time’ and that only the ‘common good’ and the ‘protection of the state and society’ would justify interference with the rights of Irish citizen children under the constitution to care, company, and parentage, as the constitution protects the rights of the family under Article 41. Since that time thousands of persons have been allowed to reside in Ireland on that basis. However since a February 2003 announcement, the government no longer accepts residency applications based on the parentage of Irish citizen children. This announcement followed the Supreme Court judgement in the case of L&O v The Minister for Justice, Equality & Law Reform in January 2003 where the challenge to deportation by parents of Irish children whose asylum applications were rejected was unsuccessful. This has caused several thousand applications for residence on this basis to remain in the system, such persons may now only apply for Leave to Remain through representations against deportation orders.

There have been a number of Supreme Court cases on asylum for example, the refusal of an application due to the UK being the first safe country of asylum in Anisimova v Minister of Justice in 1997. There was a further case in 2000 where the Supreme Court found that the limited rights of challenge provided under the Illegal Immigrants (Trafficking Bill 1999) to preclude any person from questioning the validity of specified decisions or orders made under the Immigration Act (1999), the Refugee Act (1996) and the Aliens (Amendment) No 2 Order (1999) otherwise than by way of an application for judicial review, within a specified period, were not unconstitutional.

Analysis provided by: Anisa Niaz LLM (Public Law), United Kingdom.

Hide