The Minister for Justice will not repeal the 2004 Immigration Act, introduced last February to plug the holes left in immigration law by a High Court judgment, though that judgment was overturned yesterday.
However, the Minister is now examining the judgment to see what "tidying up" of the Statute Book may be required in the light of the Supreme Court decision, according to a spokeswoman.
Last January the High Court found that sections of the 1999 Immigration Act, dealing with the imposition of conditions on the entry of non-nationals into the State and the power of immigration officers or gardaí to ask for documentation, were unconstitutional. The decision was based, not on the substance of the powers, but on a finding that the Aliens Orders allowing them were not properly made law.
Following this judgment, Mr McDowell introduced the Immigration Bill 2004, which he said was an emergency measure to provide a statutory basis for measures taken under Aliens Orders. "What we have done in preparing this Bill is to take what, up to the time of the judgment, was thought to be the law as set out in the Aliens Orders," he told the Dáil.
During the debate, various bodies concerned with immigration and with human rights called for the withdrawal of the Bill, to allow for further discussion, claiming it went further than reinstating the powers struck down by the High Court.
For example, the Human Rights Commission expressed concern about the Bill's provision giving immigration officers the power to detain a person "reasonably believed . . . to be a non-national" on the basis that it allowed for people to be singled out on the basis of race or colour.
The Irish Council for Civil Liberties, along with a number of refugee and immigrants' organisations, sought its withdrawal on the basis that it lacked basic safeguards. They said it contained certain new elements that could be discriminatory. They cited, in particular, a provision that a non-national householder who did not ensure that any non-national in their house was in Ireland legally could be prosecuted.
The Supreme Court said yesterday it could not accept that the framers of the Constitution intended to prohibit the Oireachtas from incorporating other instruments, like orders, into an Act.
This means that the powers held by immigration officers and the gardaí under the 1999 Act are valid after all, and can be exercised by them in their dealings with non-nationals.