The Supreme Court allowed an appeal by the Director of Public Prosecutions, Ireland and the Attorney General against a High Court ruling that section 2 of the Immigration Act 1999 was unconstitutional. It set aside the High Court order and substituted an order dismissing Ilona Leontjava’s claim.
The judgment, delivered by Chief Justice Ronan Keane on 23 June 2004, concerned section 2’s provision that most orders previously made under the Aliens Act 1935 would have statutory effect as if they were an Act of the Oireachtas. The section excluded Article 13 of the Aliens Order 1946 and the Aliens (Visas) Order 1999. It also provided that the section’s operation would be limited where necessary to avoid conflict with a person’s constitutional rights.
The High Court had accepted Leontjava’s challenge. It concluded that the Constitution did not allow the Oireachtas to give secondary legislation the legal status of an Act without reproducing its text through the ordinary legislative process. The Government appealed that ruling.
For the Supreme Court, the central issue was whether incorporating the orders by reference, rather than setting them out in full in the 1999 Act, made section 2 unconstitutional. The court said the Constitution gives the Oireachtas wide latitude over the form of legislation and found no constitutional prohibition on incorporating other instruments by reference. It said the intention to give the specified orders the force of law was clear and that the requirements for the Act’s signature, promulgation and enrolment had been met.
The court also rejected the argument that the arrangement circumvented the President’s power to refer legislation to the Supreme Court under Article 26. It said the President could have referred section 2 of the Bill as a specified provision, even if concern related only to some of the incorporated provisions.
The ruling addressed the constitutional validity of section 2. The Supreme Court concluded that Leontjava had not clearly established that the provision was invalid. It allowed the appeal and dismissed her claim; the judgment does not set out any separate order concerning the underlying immigration proceedings.