ID on demand ruled unconstitutional

 

A PROVISION of the Immigration Act forcing non-Irish nationals to produce ID on demand to a garda or face a criminal conviction has been ruled “unconstitutional” by the High Court.

Immigrant groups welcomed the landmark judgment, which they said would help fight the battle against what they described as “racial profiling” by the Garda and immigration authorities.

The president of the High Court, Mr Justice Nicholas Kearns, yesterday upheld a challenge by a west African woman to the constitutionality of section 12 of the Immigration Act, 2004, which requires production of identity documents on demand by gardaí, and stipulates that failure to do so without “satisfactory explanation” is a criminal offence.

While section 12 was designed as an immigration control mechanism, “its vagueness is such as to fail basic requirements for the creation of a criminal offence”, the judge found. The failure to define the term “satisfactory explanation” created vagueness and uncertainty and “considerable potential” for arbitrary applications of that term by gardaí.

There was no requirement that a garda should have formed a reasonable suspicion a non-Irish national was behaving unlawfully before requiring them to produce a satisfactory explanation for the absent documents, he added.

Section 12 was not sufficiently precise to reasonably enable a person to foresee the consequences of their acts or anticipate what form of explanation would suffice to avoid prosecution.

It also had potential to breach the right against self-incrimination under the Constitution and article 6 of the European Convention on Human Rights, as a silent response to a request equated to failure to produce a satisfactory explanation, he added. UK legislation dealing with these situations met the concerns he had outlined, he indicated.

The judge granted a declaration that section 12 was unconstitutional and made an order preventing the prosecution of Ebere Dokie on charges under section 12 carrying a maximum one-year jail sentence and/or a fine of up to €3,000.

The State had argued section 12 was a core part of laws for control and regulation of the entry of foreign nationals into the State and their obligations while here.

Ms Dokie (40), who claims she is from Liberia and that her passport was destroyed in a fire in 1989, was charged under section 12 after her arrest at Dublin airport in April 2008 when she, her daughter and two boys arrived on a flight from Nigeria and tried to enter the State without passports.

She claimed she met the boys at Lagos airport the previous day and, at the request of their father, agreed to take them to Ireland. She claimed the boys were with an agent who had arranged her travel.

The District Court on May 28th, 2008, ruled the section 12 charge arising from her Dublin airport arrest was void, but she was rearrested on Chancery Street, Dublin, on May 29th and again charged under section 12.

The facts of this case “illustrate all too clearly” the serious problems faced in trying to control and deal with undocumented persons here, Mr Justice Kearns said.

The judge rejected an additional argument by Ms Dokie that section 12 was unconstitutional on grounds it was a disproportionate measure. There was a “manifest need” for effective measures to regulate the entry into the State of undocumented non-Irish nationals, he said.

The action was against the DPP and a prosecuting garda, with Ireland and the Attorney General as notice parties. The Irish Human Rights Commission was an amicus curiae – assistant to the court on legal issues. The DPP had alleged there was no evidence to prove Ms Dokie was who she claimed to be. A birth certificate she provided had been analysed and proved not to be authentic, it was alleged.

Ms Dokie, on bail since July 2008, has applied for refugee status and lives with her daughter at a residence for asylum seekers in Monaghan. She claims her Nigerian husband died and one of her five children died as a result of circumcision.