D.P.P. & Anor v. Leontjava [2004] IESC 37 (23 June 2004)

D.P.P. & Anor v. Leontjava [2004] IESC 37 (23 June 2004)

Section 2 of the Immigration Act, 1999, which gives statutory effect to orders made under s. 5 of the Aliens Act, 1935 by reference, is not repugnant to the Constitution. The Constitution does not prohibit the Oireachtas from incorporating secondary legislation by reference, provided the intention is clear and the constitutional procedures for enactment are followed. Article 5(6) of the Aliens Order, 1946 is ultra vires s. 5(1) of the 1935 Act, as the parent statute does not authorise the imposition of conditions as to duration of stay by immigration officers. Article 15 of the 1946 Order is intra vires s. 5(1)(h) of the 1935 Act, and s. 5(1)(h) is not inconsistent with the Constitution...

Citation
[2004] IESC 37
Parties
Appellants: The Director of Public Prosecutions, Ireland and the Attorney General; Respondent: Ilona Leontjava; Notice Party: District Judge Mary Collins; Applicant: Liu Chang; Notice Party: District Judge Brophy
Jurisdiction
Ireland
Judgment Date
23 June 2004
Procedural Posture
Constitutional and Administrative Law Appeal / Supreme Court Appeal From High Court Judgment
Outcome
Appeal allowed; High Court order set aside; respondent's claim dismissed.
Legal Topics
Delegation of Legislative Power, Incorporation by Reference, Statutory Interpretation, Ultra Vires, Principles and Policies Test, Presumption of Constitutionality
Constitutional Law Administrative Law Immigration Law Delegation of Legislative Power Incorporation by Reference Statutory Interpretation Ultra Vires Principles and Policies Test +1 more

Case Brief

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Parties

The Director of Public Prosecutions, Ireland and the Attorney General

Appellants

Ilona Leontjava

Respondent

District Judge Mary Collins

Notice Party

Liu Chang

Applicant

District Judge Brophy

Notice Party

Procedural Posture

Constitutional and Administrative Law Appeal / Supreme Court Appeal From High Court Judgment

Legal Issues

  1. 1 Whether s. 2 of the Immigration Act, 1999 is invalid having regard to the Constitution for purporting to give statutory effect to secondary legislation by reference
  2. 2 Whether Article 5(6) of the Aliens Order, 1946 is ultra vires s. 5(1) of the Aliens Act, 1935
  3. 3 Whether s. 5(1)(h) of the Aliens Act, 1935 is inconsistent with Article 15.2 of the Constitution

Ratio Decidendi

Section 2 of the Immigration Act, 1999, which gives statutory effect to orders made under s. 5 of the Aliens Act, 1935 by reference, is not repugnant to the Constitution. The Constitution does not prohibit the Oireachtas from incorporating secondary legislation by reference, provided the intention is clear and the constitutional procedures for enactment are followed. Article 5(6) of the Aliens Order, 1946 is ultra vires s. 5(1) of the 1935 Act, as the parent statute does not authorise the imposition of conditions as to duration of stay by immigration officers. Article 15 of the 1946 Order is intra vires s. 5(1)(h) of the 1935 Act, and s. 5(1)(h) is not inconsistent with the Constitution...

Court Disposition

Appeal allowed; High Court order set aside; respondent's claim dismissed.

Orders

  • Order of the High Court set aside
  • Order substituted dismissing the respondent's claim