Aviation (Preclearance) Act 2009

Type Act

Publication 2009-07-08

State In force

Source Irish Statute Book

1.. Interpretation.

1.— (1) In this Act—

“Agreement” means the agreement between the Government of Ireland and the Government of the United States of America on Air Transport Preclearance, done at Washington on 17 November 2008, the text of which, for convenience of reference, is set out in the Schedule;

“air carrier” means an air transport undertaking, whether scheduled or charter, that operates a non-stop air travel service between the State and the United States, whether that service originates in the State or elsewhere;

“aircraft” means an aircraft intended to be flown to the United States following preclearance and includes, where applicable, a private aircraft;

“aircraft commander” means the person serving on a private aircraft who has command of its operation and navigation;

“airport authority” means the body responsible for the management, operation and development of an airport at which preclearance services are provided in accordance with this Act;

“goods” includes personal effects, baggage, aircraft stores, equipment, food, animals and plants and their products, any substance, currency and other monetary instruments, and documents in any form (including electronic form);

“in-transit preclearance” means the preclearance of travellers, their goods, and the aircraft concerned that arrive in the State from a state other than the State en route to the United States;

“Irish law enforcement officer” means a member of An Garda Síochána or an officer of Customs and Excise;

“Minister” means the Minister for Transport;

“permission to enter” means permission under this Act by a preclearance officer—

(a) to a traveller, to enter the United States, and in respect of the traveller’s goods, to take them to the United States, and

(b) in respect of an aircraft, to enter the United States;

“possession”, in relation to possession of any goods or weapon by a person, includes control over any goods or weapon;

“preclearance” means the procedure of conducting at an airport in the State by a preclearance officer of all or any of the examination and inspection required in respect of—

(a) a traveller seeking entry into the United States,

(b) the goods of such traveller intended to be taken into the United States, and

“preclearance area”—

(a) means a place designated by the Minister under section 2(1) (including any bridge designed to facilitate the boarding of an aircraft from such a place), and

(b) includes a vehicle while conveying travellers to or from a preclearance area and the aircraft or another part of the preclearance area;

“preclearance facility” means the physical inspection infrastructure in the preclearance area, including any offices and examination areas together with any equipment required for the purposes of this Act;

“preclearance officer” means a United States Customs and Border Protection official authorised by this Act to perform the functions conferred by this Act;

“private aircraft” means an aircraft intended to be flown to the United States that is not operated by an air carrier;

“postclearance” means the examination and inspection of travellers, their goods and the aircraft concerned, upon arrival in the United States;

“traveller” means a passenger or member of the crew of an aircraft seeking entry to the United States under this Act and includes an aircraft commander;

“United States” means the United States of America, its Government and any agency of the United States associated with preclearance operations in Ireland, including United States Customs and Border Protection;

“weapon” means a firearm within the meaning of the Firearms Acts 1925 to 2007, or a knife within the meaning of section 9(1) of the Firearms and Offensive Weapons Act 1990, or a weapon of offence within the meaning of section 10(2) of that Act.

(2) Subject to subsection (1), a word or expression used in this Act that is also used in the Agreement has the same meaning in this Act as it has in the Agreement.

(3) In this Act a reference to preclearance, or preclearance area, includes a reference to in-transit preclearance, or in-transit preclearance area, as the case may be.

2.. Minister may designate preclearance area.

2.— (1) The Minister may, by regulations, designate, by reference to a map or otherwise, a place or places within an airport in the State as an area (“preclearance area”) or areas within which preclearance may be carried out.

(2) Subject to subsection (3), regulations made under this section may provide that—

(a) a part of a preclearance area may cease to be operational when no aircraft at that part of the preclearance area is, for the time being, subject to preclearance, or

(b) a building, or a portion of a building, in a preclearance area may cease to be operational when that building, or that portion of the building, is, for the time being, not being used for the purpose of preclearance.

(3) Where regulations are made to which subsection (2) applies, the airport authority, shall, during periods when that part of the preclearance area or building (or portion thereof) is operational, place signage in prominent positions, or otherwise indicate that preclearance is, for the time being, being carried out in that part of the preclearance area or building (or portion thereof), as the case may be.

(4) Where the Minister designates a preclearance area under subsection (1) and that area includes a building consisting of more than one floor, the Minister may designate—

(a) the entire building,

(b) an entire floor, or

(5) Before making regulations under this section, the Minister shall consult with the airport authority, with the Minister for Justice, Equality and Law Reform, and with the Revenue Commissioners.

(6) In this section—

“floor” includes a basement and any connections between floors concerned;

“map” includes a plan of a building;

“operational” means operational for the purpose of preclearance.

3.. Duties of traveller.

3.— (1) A traveller who enters a preclearance area shall—

(a) present himself or herself without delay at the preclearance facility for the purpose of applying for permission to enter,

(b) make an accurate written declaration of all goods required to be declared in accordance with instructions issued by or on behalf of the Minister and made available to the traveller in the preclearance area, and

(2) A traveller who contravenes paragraph (a), (b) or (c) of subsection (1) shall be guilty of an offence.

(3) Where a traveller is accused of an offence under subsection (2) in respect of subsection (1)(b), it shall be a good defence to show that he or she had reasonable grounds for believing that his or her declaration was duly made in accordance with that provision.

(4) Where section 5(5)(a) applies, no proceedings shall be instituted against a traveller under subsection (2) in respect of subsection (1)(b) in relation to any particular goods.

4.. Right of traveller to withdraw.

4.— A traveller may, at any time—

(a) withdraw his or her application for permission to enter, and

(b) subject to subsections (1)(e) and (3) of section 5, and section 6, leave the preclearance area.

5.. Functions of preclearance officers.

5.— (1) In addition to exercising functions under section 7(2), a preclearance officer may—

(a) take and process applications for permission to enter,

(b) ask for the production of travel documents and other documents supporting the traveller’s application for permission to enter and examine such documents when produced,

(d) with the consent of the traveller and subject to subsection (2), search such traveller and his or her goods,

(e) without warrant, where he or she reasonably suspects that a person poses an immediate threat (including the possession of a weapon) to the safety of officers or other persons in the preclearance area, search such person and his or her goods and may detain the person for such time as is reasonably necessary for carrying out the search,

(f) examine any area of the aircraft, including any goods on, or to be loaded onto, it,

(g) grant permission to enter to any traveller or aircraft where such traveller or aircraft is found to be eligible for entry into the United States,

(h) review or revoke permission to enter granted under paragraph (g),

(i) refuse permission to enter to any traveller or aircraft where such traveller or aircraft is found to be ineligible for entry into the United States,

(j) notwithstanding the fact that permission to enter has not been granted to any traveller, permit such traveller to board the aircraft for the purpose of postclearance on arrival in the United States, and

(k) request the assistance of an Irish law enforcement officer with respect to the matters referred to in paragraphs (e) and (f) of this subsection and paragraphs (a) and (b) of section 6(1).

(2) Where subsection (1)(d) applies, the preclearance officer conducting a search of a person shall—

(a) be of the same sex as the person being searched, and

(b) have due respect for the person being searched.

(3) Where a preclearance officer reasonably suspects that—

(a) a person has—

(i) committed an indictable offence under the law of the State, or

(ii) obstructed or attempted to obstruct a preclearance officer in the performance of his or her functions under this Act,

(b) a private aircraft is conveying goods in contravention of the law of the State,

the preclearance officer—

(I) may, without warrant, detain that person or private aircraft, and

(II) where such person or aircraft is detained, shall forthwith deliver that person or aircraft into the custody of an Irish law enforcement officer to be dealt with in accordance with law.

(4) Where a traveller fails to comply with section 3(1)(b), the preclearance officer may detain such goods and, where he or she does so, shall forthwith deliver them to an Irish law enforcement officer for the purposes of sections 8 to 10.

(5) Notwithstanding subsection (4), the preclearance officer may, as a condition of granting permission to enter, require a traveller to—

(a) pay him or her, or another preclearance officer identified by him or her, a sum of money equivalent to the sum of money that would be payable by that traveller on postclearance in respect of any particular goods, or

(b) surrender those goods.

(6) (a) Subject to paragraph (b), a preclearance officer may perform the functions conferred by this Act solely within the preclearance area.

(b) Where regulations are made to which section 2(2) applies, a preclearance officer may perform the functions conferred solely in a place referred to in that subsection that is, for the time being, operational for the purpose of preclearance.

(7) Nothing in this Act shall be construed as permitting a preclearance officer to be in possession of a weapon in the performance of his or her functions under this Act.

6.. Functions of Irish law enforcement officers.

6.— (1) An Irish law enforcement officer who reasonably suspects that, in the preclearance area—

(a) a traveller has failed to comply with section 3(1)(b), or

(b) any person (whether or not a traveller) is in possession of any goods (including a weapon) the possession of, or the export of which, is controlled or prohibited in the State, or otherwise poses a threat to the safety of officers or other persons in the preclearance area,

may, without warrant—

(i) search the person and, if he or she considers it necessary for that purpose, detain the person for such time as is reasonably necessary for carrying out the search, provided that—

(I) except where the threat posed is immediate—

(A) the officer conducting a search of a person being detained shall ensure, so far as practicable, that the person understands the reason for the search and that it is conducted with due respect for the person being searched,

(B) a person being detained shall not be searched by an officer or person of the opposite sex, and

(II) where a search of a person being detained involves removal of clothing, other than headgear or a coat, jacket, glove or similar article of clothing, no officer or person of the opposite sex shall be present, unless either that person is a medical practitioner designated by the officer conducting the search, or the officer considers that the presence of that person is necessary for the protection of the person carrying out the search, or is otherwise expedient in the interests of the person being searched, and

(ii) examine (by opening or otherwise), seize and detain anything found in the course of a search under this section that appears to him or her to be something that might be required as evidence in proceedings for an offence.

(2) Where an Irish law enforcement officer decides to search a person under this section, he or she may require the person to accompany him or her to such other place at the airport as may be specified by the officer for the purpose of being so searched at that other place.

(3) Where there is a failure to comply with a requirement under subsection (2), the Irish law enforcement officer concerned may arrest without warrant the person of whom the requirement was made.

(4) Where a person fails to comply with a requirement under this section, he or she shall be guilty of an offence.

(5) A requirement mentioned in subsection (2) shall remain in force until the search in relation to which it is made is completed, but such search shall be carried out as soon as is practicable.

(6) Nothing in this section shall operate to prejudice any power to search, or to seize or detain any goods, which may be exercised by an Irish law enforcement officer apart from this section.

(7) An Irish law enforcement officer shall, where requested under section 5(1)(k), assist a preclearance officer.

7.. Security of preclearance area.

7.— (1) Persons other than—

(a) preclearance officers and other personnel authorised by the United States,

(b) travellers,

(d) persons authorised by the airport authority who require entry for a purpose relating to their employment,

shall not enter—

(i) a preclearance area, or

(ii) where regulations are made to which section 2(2) applies, a place referred to in that subsection that is, for the time being, operational for the purpose of preclearance.

(2) An Irish law enforcement officer or a preclearance officer may, in the interest of security or the proper functioning of the preclearance area, do any of the following in the preclearance area:

(a) require any person to:

(i) give his or her name and to produce evidence of his or her identity;

(ii) state the purpose of his or her being in the preclearance area;

(iii) account for any baggage or other property which may be in his or her possession;

(iv) return to the preclearance facility;

(b) require any of the following persons to leave the preclearance area:

(i) a person who fails to give his or her name or to produce evidence of his or her identity;

(ii) a person who fails to state the purpose of his or her being in the preclearance area;

(iii) a person who fails to account for any baggage or other property in his or her possession;

(iv) a person who gives a name or states a purpose for his or her being in the preclearance area which is known, or is reasonably suspected, by the preclearance officer or the Irish law enforcement officer to be false;

(v) a person whom he or she knows not to have, or whom he or she reasonably suspects of not having, a lawful reason for being in the preclearance area.

(3) A person who contravenes subsection (1) or fails to comply with a requirement under subsection (2) shall be guilty of an offence.

(4) A person who obstructs or impedes a preclearance officer or an Irish law enforcement officer in the exercise of any functions conferred by this Act shall be guilty of an offence.

(5) A person shall not be convicted under—

(a) subsection (3) in respect of subsection (2) of this section, and

(b) section 3(2) in respect of section 3(1)(c),

in respect of the same act.

8.. Seizure of goods generally.

8.— (1) Without prejudice to any other applicable law, any goods that are—

(a) not declared, or

(b) the subject of a false declaration,

under section 3(1)(b) may be seized as liable to forfeiture by an Irish law enforcement officer.

(2) Where goods are seized under subsection (1), the person affected shall be furnished with a notice in writing (“notice of seizure”) specifying—

(a) the goods seized,

(b) the reasons for the seizure, and

(3) A person whose goods have been seized under subsection (1) who claims that such goods are not liable to forfeiture (“claimant”), shall, within one month of the seizure, give notice in writing of such claim (“notice of claim”) to the Revenue Commissioners.

(4) A notice of claim shall specify the name and address of the claimant and, in the case of a claimant who is outside the State, the name and address of a solicitor in the State who is authorised to accept service of any document required to be served on the claimant and to act on behalf of the claimant.

(5) If, on the expiration of the period referred to in subsection (3), no notice of claim has been given, the goods shall be deemed to have been duly condemned as forfeited.

(6) Where goods are, under this Act, condemned or deemed to have been condemned as forfeited, the forfeiture shall have effect as from the date of seizure.

9.. Seizure of goods: certain powers of Revenue Commissioners.

9.— (1) Where a notice of claim has been duly given, the Revenue Commissioners may, as they think fit and notwithstanding that the goods seized have not yet been condemned—

This document does not substitute the official text published in the Irish Statute Book. We accept no responsibility for any inaccuracies arising from the transcription of the original into this format.