The Supreme Court judgment in two applicant cases concerning the Aliens Order 1946 was delivered on 23 June 2004. Fennelly J agreed with the orders proposed by the Chief Justice and his reasoning, except on one point about the Minister’s authority to set conditions on the length of an alien’s stay.
The judgment concerned Article 5 of the 1946 Order, as inserted by the Aliens (Amendment) Order 1975, and the Minister’s powers under section 5(1) of the Aliens Act 1935. Fennelly J agreed that Article 5(6) was ultra vires because the authorising section did not permit the Minister to delegate his powers to immigration officers.
He differed from the Chief Justice on whether the Minister could make orders imposing conditions that affected the length of an alien’s stay. Fennelly J considered that section 5(1)(b), which addressed restrictions and conditions on landing in or entering the State, carried an implied power to set the permitted duration of stay. He said that such a condition naturally followed from permission to enter.
That difference did not alter his agreement with the proposed orders. He said the lack of authority to delegate the power to immigration officers was sufficient to invalidate the provision. The supplied judgment excerpt does not set out the Chief Justice’s full reasoning or the terms of the orders.