Mr Justice Kearns's judgment is an opportunity to ensure ethnic minorities are not subjected to undue police surveillance, writes CAROLINE NOLAN
UNTIL IT was struck down by Mr Justice Nicholas Kearns, section 12 of the Immigration Act 2004 could be used to detain non-nationals living in Ireland who had committed no offence.
The section stipulated that “non-nationals” shall produce “on demand” a passport or equivalent document to a garda or immigration officer, and provides that failure to do so without “satisfactory explanation” constitutes a criminal offence punishable by a maximum term of imprisonment of 12 months and or a maximum fine of €3,000. By licensing greater police surveillance of non-Irish citizens, this legislation could result in the inappropriate policing of ethnic and racial minorities.
Charges under the provisions of section 12 could arise in a wide variety of circumstances. Some of those charged under these provisions have never been resident in the State. Many of those who present themselves at Dublin airport as asylum seekers are directed to the Office of the Refugee Applications Commissioner (ORAC). Garda National Immigration Bureau (GNIB) officers had the discretion to arrest, or indeed not to arrest, asylum applicants under these provisions if they did not present a valid passport.
Before Mr Justice Kearns’s ruling, asylum seekers, including registered asylum seekers living in Ireland unable to produce satisfactory documentation regarding their identity, could be arrested and rearrested under the provisions of section 12.
Sometimes section 12 charges arose after a person was arrested over a routine minor criminal offence. On occasion, persons facing charges in court under this section had been requested by gardaí to produce passports when their behaviour had not excited any suspicion and there was no indication they were involved in criminal activity. Such persons included a passenger in a car stopped at a routine traffic check and a man stopped in the street.
Many judges appeared to view the process of charging non- nationals under the provisions of section 12 as a device used by gardaí to allow them to detain persons while they established their identity. Usually no bail application was made and no plea entered until the identity of the defendant had been established.
This meant persons charged under section 12 were often held in prison for several weeks and even months. Yet, on conviction, most judges applied the Probation Act. So, in most cases, persons charged under these provisions were punished by being detained until they produced a passport or “an equivalent document”, rather than a court-imposed sentence.
Citizens of other EU member states, except members of the Roma community, were not normally charged under this legislation, even though section 12 applies to all non-Irish citizens.
The Immigration Act 2004 does not provide any guidance as to how “non-nationals” are to be identified. How did gardaí identify passengers in cars or persons walking in the street as “non-nationals”? It seems judgments were made as to whether a person was Irish or not primarily on their appearance.
Those who look least like the typical Irish person, whether Irish citizens or not, were most likely to have been affected by this legislation. If policing activity is unduly targeted at certain sections of society it can create a negative perception of them in the general populace regarding levels of criminality. It can lead to a lack of trust between the police force and minority communities.
Since the Stephen Lawrence Inquiry found evidence of institutional racism in the British police, the presence of ethnic minorities is monitored at all stages of the British criminal justice process. Similar monitoring is not carried out in relation to the Irish criminal justice system, but the limited evidence available suggests there may be some cause for concern.
The EU Minorities and Discrimination survey of 2008 presented findings which suggest inappropriate targeting of minorities by Irish police. The survey indicated 59 per cent of sub-Saharan Africans surveyed had been stopped at least once by gardaí in a 12-month period, with one in three eastern Europeans also stopped in the same period.
The reported stop-rate for sub-Saharan Africans in Ireland was the highest for any ethnic minority in the EU and compares to stop-rates in Malta of 8 per cent and in Portugal of 9 per cent. The findings were challenged by the minister for integration, who claimed the methodology used in Ireland was flawed. However, the minister has not commissioned further research which might refute or perhaps confirm these findings.
Now that section 12 of the Act has been ruled unconstitutional, there is an opportunity to reflect on the dangers inherent in such legislation and to consider the need to ensure ethnic minorities are not subjected to inappropriate police surveillance.
Caroline O’Nolan has just obtained a PhD for her thesis, New boundaries of justice in a world in motion: assessing the impact of global citizens on the Irish District Court