The Supreme Court has dismissed an appeal challenging the constitutionality of provisions in the Immigration Act 1999 that allow deportation orders to remain in effect unless amended or revoked by the Minister for Justice.
The appeal concerned sections 3(1) and 3(11). The appellants sought declarations that the provisions were invalid under the Constitution or incompatible with Ireland’s obligations under the European Convention on Human Rights. The High Court had rejected those claims.
The appellants argued that an order requiring a non-national to “remain thereafter out of the State” was indefinite and could disproportionately interfere with family life. They also argued that the Minister’s power to amend or revoke an order amounted to an unconstitutional delegation of legislative power. The State submitted that the Minister must exercise those powers consistently with constitutional rights and Convention obligations, including by considering proportionality in individual cases.
The Court rejected the argument that the deportation order at issue was a punishment. It said the order was an executive decision to refuse permission to enter or remain in Ireland, and that the possibility of criminal prosecution for breaching an order did not change its character.
The judgment said section 3(11) allowed the Minister to amend or revoke an order at any time. When considering such a decision, the Minister must take account of relevant circumstances, including family rights, and act proportionately. A decision affecting those rights may be challenged by judicial review. The Court stressed that it was not reviewing the legality of any particular ministerial decision in this appeal.
On the constitutional challenge, the Court held that sections 3(1) and 3(11) did not require disproportionate interference with family rights. It also held that section 3(11) conferred an executive and administrative discretion, not legislative power, and did not breach Article 15 of the Constitution.
The Court separately refused the requested declaration of incompatibility with the European Convention. It held that proportionality depends on the facts of each case and that the duration of an order is one relevant factor. The judgment left open the possibility that a particular deportation decision, or refusal to revoke an order, could be disproportionate and breach constitutional or Convention rights.
The Court also considered whether the appeal should be dismissed because of admitted deception by two adult appellants in asylum and court processes. It decided not to dismiss the constitutional appeal on that basis, taking account of the nature of the challenge and the interests of the minor appellants. The appeal was dismissed on its merits.