Immigration Act 1999

1. Interpretation.

1.—(1) In this Act, except where the context otherwise requires—

“the Act of 1935” means the Aliens Act, 1935;

“the Minister” means the Minister for Justice, Equality and Law Reform;

“non-national” means an alien within the meaning of the Act of 1935 other than an alien to whom, by virtue of an order under section 10 of that Act, none of the provisions of that Act applies;

“prescribed” means prescribed by regulations made by the Minister.

(2) In this Act—

(a) a reference to any enactment shall, unless the context otherwise requires, be construed as a reference to that enactment as amended or extended by or under any subsequent enactment including this Act,

(b) a reference to a section is a reference to a section of this Act unless it is indicated that reference to some other enactment is intended,

(c) a reference to a subsection, paragraph or subparagraph is a reference to the subsection, paragraph or subparagraph of the provision in which the reference occurs unless it is indicated that reference to some other provision is intended.

2. Orders under Act of 1935.

2.—(1) Every order made before the passing of this Act under section 5 of the Act of 1935 other than the orders or provisions of orders specified in the Schedule to this Act shall have statutory effect as if it were an Act of the Oireachtas.

(2) If subsection (1) would, but for this subsection, conflict with a constitutional right of any person, the operation of that subsection shall be subject to such limitation as is necessary to secure that it does not so conflict but shall be otherwise of full force and effect.

3. Deportation orders.

3.—(1) Subject to the provisions of F1[section 3A] and the subsequent provisions of this section, the Minister may by order (in this Act referred to as “a deportation order”) require any non-national specified in the order to leave the State within such period as may be specified in the order and to remain thereafter out of the State.

F2[(1A) A person the subject of a deportation order under this section may be detained in accordance with the provisions of this Act for the purpose of ensuring his or her deportation from the State.]

(2) An order under subsection (1) may be made in respect of—

(a) a person who has served or is serving a term of imprisonment imposed on him or her by a court in the State,

(b) a person whose deportation has been recommended by a court in the State before which such person was indicted for or charged with any crime or offence,

(c) a person who has been required to leave the State under Regulation 14 of the European Communities (Aliens) Regulations, 1977 (S.I. No. 393 of 1977),

(d) a person to whom Regulation 19 of the European Communities (Right of Residence for Non-Economically Active Persons) Regulations, 1997 (S.I. No. 57 of 1997) applies,

(e) a person whose application for asylum has been transferred to a convention country for examination pursuant to section 22 of the Refugee Act, 1996,

(f) a person whose application for asylum has been refused by the Minister,

(g) a person to whom leave to land in the State has been refused,

(h) a person who, in the opinion of the Minister, has contravened a restriction or condition imposed on him or her in respect of landing in or entering into or leave to stay in the State,

(i) a person whose deportation would, in the opinion of the Minister, be conducive to the common good.

(3) (a) Subject to subsection (5), where the Minister proposes to make a deportation order, he or she shall notify the person concerned in writing of his or her proposal and of the reasons for it and, where necessary and possible, the person shall be given a copy of the notification in a language that he or she understands.

(b) A person who has been notified of a proposal under paragraph (a) may, within 15 working days of the sending of the notification, make representations in writing to the Minister and the Minister shall—

(i) before deciding the matter, take into consideration any representations duly made to him or her under this paragraph in relation to the proposal, and

(ii) notify the person in writing of his or her decision and of the reasons for it and, where necessary and possible, the person shall be given a copy of the notification in a language that the person understands.

(4) A notification of a proposal of the Minister under subsection (3) shall include—

(a) a statement that the person concerned may make representations in writing to the Minister within 15 working days of the sending to him or her of the notification,

(b) F3[subject tosubsection (4A), a statement] that the person may leave the State before the Minister decides the matter and shall require the person to so inform the Minister in writing and to furnish the Minister with information concerning his or her arrangements for leaving,

(c) a statement that the person may consent to the making of the deportation order within 15 working days of the sending to him or her of the notification and that the Minister shall thereupon arrange for the removal of the person from the State as soon as practicable, and

(d) any other information which the Minister considers appropriate in the circumstances.

F4[(4A) The provisions ofsubsection (4)(b)shall not apply where—

(a) the person has been by a final judgment convicted in the State of a serious offence, or

(b) the Minister is of the opinion that there are reasonable grounds for regarding the person as a danger to the security of the State.]

(5) The provisions of subsection (3) shall not apply to—

(a) a person who has consented in writing to the making of a deportation order and the Minister is satisfied that he or she understands the consequences of such consent,

(b) a person to whom paragraph (c), (d) or (e) of subsection (2) applies, or

(c) a person who is outside the State.

(6) In determining whether to make a deportation order in relation to a person, the Minister shall have regard to—

(a) the age of the person;

(b) the duration of residence in the State of the person;

(c) the family and domestic circumstances of the person;

(d) the nature of the person's connection with the State, if any;

(e) the employment (including self-employment) record of the person;

(f) the employment (including self-employment) prospects of the person;

(g) the character and conduct of the person both within and (where relevant and ascertainable) outside the State (including any criminal convictions);

(h) humanitarian considerations;

(i) any representations duly made by or on behalf of the person;

(j) the common good; and

(k) considerations of national security and public policy,

so far as they appear or are known to the Minister.

(7) A deportation order shall be in the form prescribed or in a form in the like effect.

(8) Where a person who has consented in writing to the making of a deportation order is not deported from the State within 3 months of the making of the order, the order shall cease to have effect.

(9) F5[(a) (i) Subject toparagraph (b), where the Minister has made a deportation order under this section, the notice undersubsection (3)(b)(ii)may require the person the subject of the deportation order to do any one or more of the following for the purpose of ensuring his or her deportation from the State:

(I) present himself or herself to such member of the Garda Síochána or immigration officer at such date, time and place as may be specified in the notice;

(II) produce any travel document, passport, travel ticket or other document in his or her possession required for the purpose of such deportation to such member of the Garda Síochána or immigration officer at such date, time and place as may be specified in the notice;

(III) co-operate in any way necessary to enable a member of the Garda Síochána or immigration officer to obtain a travel document, passport, travel ticket or other document required for the purpose of such deportation;

(IV) reside or remain in a particular district or place in the State pending removal from the State;

(V) report to a specified Garda Síochána station or immigration officer at specified intervals pending removal from the State;

(VI) notify such member of the Garda Síochána or immigration officer as may be specified in the notice as soon as possible of any change of address.

(ii) Where the notice undersubsection (3)(b)(ii)contains a requirement to do an act specified insubparagraph (i), a member of the Garda Síochána or immigration officer may, if he or she considers it necessary for the purpose of ensuring the deportation of the person concerned from the State, require the person in writing to do any one or more of the acts specified insubparagraph (i), and any such further requirement shall have effect as if it were a requirement in a notice undersubsection (3)(b)(ii).

(iii) A further requirement undersubparagraph (ii)shall, where necessary and possible, be given to the person concerned in a language that he or she understands.]

(b) A person who is ordinarily resident in the State and has been so resident for a period (whether partly before and partly after the passing of this Act or wholly after such passing) of not less than 5 years and is for the time being employed in the State or engaged in business or the practice of a profession in the State other than—

(i) a person who has served or is serving a term of imprisonment imposed on him or her by a court in the State, or

(ii) a person whose deportation has been recommended by a court in the State before which such person was indicted for or charged with any crime or offence,

shall not be deported from the State under this section unless 3 months' notice in writing of such deportation has been given by the Minister to such person.

(10) A person who contravenes a provision of a deportation order or a requirement in a notice under subsection (3)(b)(ii) shall be guilty of an offence.

(11) The Minister may by order amend or revoke an order made under this section including an order under this subsection.

F3[(12) In this section—

"serious offence" means an offence for which a person of full age and capacity and not previously convicted may be punished by imprisonment for a term of five years or by a more severe penalty;

"working day" means any day not being a Saturday, Sunday or public holiday.]

3A.—A person shall not be expelled or returned in any manner whatsoever to the frontier of a territory where, in the opinion of the Minister—

(a) the life or freedom of the person would be threatened for reasons of race, religion, nationality, membership of a particular social group or political opinion, or

(b) there is a serious risk that the person would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment.]

3B.—(1) This section applies to a deportation order made in respect of a person—

(a) in the period commencing on 31 December 2016 and ending immediately before the date on which this subsection comes into operation, and

(b) where, in determining whether to make the deportation order, the Minister considered (including having regard to any representations made in that regard by the person in accordance withsection 3) whether the deportation of the person from the State would involve the person being returned to the frontier of a territory where—

(i) the life or freedom of the person would be threatened for reasons of race, religion, nationality, membership of a particular social group or political opinion, or

(ii) there was a serious risk that the person would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment.

(2) Subject tosubsection (3), the validity of a deportation order to which this section applies, or a notification undersection 3(3)(b)(ii)in relation to such a deportation order, shall not be affected by reason only of that deportation order or notification—

(a) including a statement referring to the Minister’s power undersection 3to make a deportation order as being subject to a specified enactment,

(b) not including a statement referred to inparagraph (a),

(c) including a statement that the consideration of the matters referred to insubparagraph (i)or(ii)ofsubsection (1)(b)was done in compliance with a specified enactment, or

(d) referring to the consideration of the matters referred to insubparagraph (i)or(ii)ofsubsection (1)(b)without specifying the legal basis for such consideration.

(3)Subsection (2)shall not apply in respect of a deportation order—

(a) that has been quashed or declared invalid by a court on a ground referred to inparagraph (a),(b),(c)or(d)of that subsection, or

(b) the validity of which has been questioned on a ground referred to inparagraph (a),(b),(c)or(d)of that subsection, in proceedings initiated before the date on which this subsection comes into operation.

(4) In this section, "enactment" has the same meaning as it has in theInterpretation Act 2005.]

4. Exclusion orders.

4.—(1) The Minister may, if he or she considers it necessary in the interest of national security or public policy, by order (referred to in this Act as an “exclusion order”) exclude any non-national specified in the order from the State.

(2) A person who contravenes a provision of an exclusion order shall be guilty of an offence.

(3) The Minister may by order amend or revoke an order made under this section including an order under this subsection.

5. Arrest, detention and removal of non-nationals.

F9[5.—(1) Where an immigration officer or a member of the Garda Síochána, with reasonable cause, suspects that a person against whom a deportation order is in force—

(a) has failed to leave the State within the time specified in the order,

(b) has failed to comply with any other provision of the order or with a requirement in a notice undersection 3(3)(b)(ii),

(c) intends to leave the State and enter another state without lawful authority,

(d) has destroyed his or her identity documents or is in possession of forged identity documents, or

(e) intends to avoid removal from the State,

the officer or member may arrest the person without warrant, and a person so arrested may be taken to a place referred to insubsection (3)and detained in the place in accordance with that subsection.

(2) Where a person against whom a deportation order is in force is serving a term of imprisonment in a prison or place of detention, an immigration officer or a member of the Garda Síochána may, immediately on completion by the person of the term of imprisonment, arrest the person without warrant and detain him or her in accordance withsubsection (3).

(3) A person who is arrested and detained undersubsection (1)or(2)may be detained—

(a) in a prescribed place, or

(b) for the purpose of his or her being placed in accordance withsubsection (4)and for a period or periods each not exceeding 12 hours—

(i) in a vehicle, for the purposes of bringing the person to the port from which the ship, railway train, road vehicle or aircraft concerned is due to depart, or

(ii) within the port referred to insubparagraph (i).

(4) A person arrested and detained undersubsection (1)or(2)may be placed on a ship, railway train, road vehicle or aircraft about to leave the State by an immigration officer or a member of the Garda Síochána, and shall be deemed to be in lawful custody whilst so detained and until the ship, railway train, road vehicle or aircraft leaves the State.

(5) The master of any ship and the person in charge of any railway train, road vehicle or aircraft bound for any place outside the State shall, if so required by an immigration officer or a member of the Garda Síochána, receive a person against whom a deportation order has been made and his or her dependants, if any, on board such ship, railway train, road vehicle or aircraft and afford him or her and his or her dependants proper accommodation and maintenance during the journey.

(6) (a)Subsections (1)and(2)shall not apply to a person who is under the age of 18 years.

(b) If and for so long as the immigration officer or, as the case may be, the member of the Garda Síochána concerned has reasonable grounds for believing that the person is not under the age of 18 years, the provisions ofsubsections (1)and(2)shall apply as if he or she had attained the age of 18 years.

(c) Where an unmarried child under the age of 18 years is in the custody of any person (whether a parent or a person acting in loco parentis or any other person) and such person is detained pursuant to the provisions of this section, the immigration officer or the member of the Garda Síochána concerned shall, without delay, notify the Child and Family Agency of the detention and of the circumstances thereof.

(7) Where a person detained under this section institutes court proceedings challenging the validity of the deportation order concerned, or of a decision by the Minister undersection 3(11)in relation to the order, the court hearing those proceedings or any appeal therefrom may, on application to it, determine whether the person shall continue to be detained or shall be released, and may make any such release subject to such conditions as it considers appropriate, including, but without prejudice to the generality of the foregoing, any one or more of the following conditions:

(a) that the person reside or remain in a particular district or place in the State;

(b) that he or she report to a specified Garda Síochána station or immigration officer at specified intervals;

(c) that he or she surrender any passport or travel document in his or her possession.

(8) (a) Subject tosubsections (9)and(10), a person shall not be detained under this section for a period or periods exceeding 8 weeks in aggregate.

(b) The following periods shall be excluded in reckoning a period for the purpose ofparagraph (a):

(i) any period during which the person is remanded in custody pending a criminal trial or serving a sentence of imprisonment;