The High Court certified a point of law for appeal about whether section 7 of the Immigration Act 2004 allows an immigration officer or garda to search the phone of a non-national landing in or embarking from the State.
Mr Justice Max Barrett delivered the judgment on 29 January 2019 in an application by Moeen Akram for leave to appeal an earlier High Court judgment in *Akram v Minister for Justice and anor* [2018] IEHC 643. The application was brought under section 5 of the Illegal Immigrants (Trafficking) Act 2000, as amended.
The certified question asks whether section 7 enables those officers to search such a person’s phone. The judge said the question raised a point of law of exceptional public importance and that it was in the public interest for it to be certified. He noted that a statutory search power involves a significant intrusion on individual freedom, and that the earlier judgment was the first in which a superior court had considered section 7.
The respondents argued that the public importance of the issue was not a “numbers game” and that the law was certain because there was no contrary authority. The judgment said that being the first person to raise a point of law does not remove all prospect of obtaining leave to appeal.
The court declined to certify a second proposed point: whether the law complied with Article 8(2) of the European Convention on Human Rights and was necessary in a democratic society. That issue had not been argued in that form at the hearing and did not arise from the earlier judgment, the judge said.
The court also recorded that neither side objected to it deciding the application. The judgment certifies the first question only; it does not decide the phone-search question or the proposed ECHR issue.