Immigration Powers

Table of Contents

Liability of carriers

Where a vehicle arrives in the State from a place other than Great Britain, Northern Ireland, the Channel Isles or the Isle of Man the carrier concerned shall ensure—

that all persons on board the vehicle seeking to land in the State or to pass through a port in the State in order to travel to another state disembark in compliance with any directions given by immigration officers,
that all persons on board the vehicle seeking to land in the State are presented to an immigration officer for examination in respect of leave to land,
that each non-national on board the vehicle seeking to land in the State or to pass through a port in the State in order to travel to another state has with him or her a valid passport or other equivalent document which establishes his or her identity and nationality and, if required by law, a valid Irish transit visa or a valid Irish visa.

A person who contravenes the above is guilty of an offence and, where a contravention by the person relates to more than one non-national, each such contravention shall constitute a separate offence.

Where a vehicle arrives in the State from a place outside the State the carrier concerned shall, if so requested by an immigration officer, furnish him or her with—

a list specifying the name and nationality of each person carried on board the vehicle in such form, and containing such other information relating to the identity of the person, as may be prescribed,
details of the members of the crew of the vehicle.

A person who contravenes the above is guilty of an offence. It is a defence for a person charged with an offence to show that he or she took all such steps as were reasonably open to him or her to ensure compliance.

It is a defence for a person charged with an offence to show—

that the non-national concerned had with him or her the relevant document before embarking on the vehicle concerned, or
that he or she did not know and had no reasonable grounds for suspecting that the document was invalid.

A person guilty of an offence under this section shall be liable on summary conviction to a fine of €3,000.

The Minister may from time to time draw up and publish guidelines concerning steps to be taken by carriers to ensure compliance by them with the Immigration Act.

Provisions in relation to offences.

Where an immigration officer has reasonable grounds for believing that the above offence is being or has been committed by a person he or she shall serve, or cause to be served, personally or by post, on the person a notice in the prescribed form or in a form to the like effect stating—

that the person is alleged to have committed the offence,
that the person may, during the period of 28 days beginning on the date of the notice, make to a member of the Garda Síochána or an authorised person at a Garda Síochána station or at another place specified in the notice a payment of €1,500 accompanied by the notice,
that a prosecution in respect of the alleged offence will not be instituted during the period specified in the notice and, if the payment specified in the notice is being made during that period, no prosecution in respect of the alleged offence will be instituted.

Entry, search and seizure.

Where, on the sworn information of a member of the Garda Síochána not below the rank of sergeant, a judge of the District Court is satisfied that

it is reasonably necessary for the purpose of the enforcement of—n aliens order, or an order under section 3 or 4 of the Immigration Act 1999 (‘the Act of 1999’),
that a place specified in the information should be searched by members of the Garda Síochána, or
there are reasonable grounds for suspecting that evidence of or relating to an offence under the 1999Act is to be found at a place specified in the information,

the judge may issue a warrant for the search of that place and any persons found at that place.

A member of the Garda Síochána acting in accordance with a warrant issued under this section may require any person found at the place where the search is carried out to give the member his or her name and address.

Any person who—

obstructs or attempts to obstruct any member of the Garda Síochána acting in accordance with a warrant
fails or refuses to comply with a requirement, or
gives a name or address which is false or misleading,

shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding €3,000 or to imprisonment for a term not exceeding 12 months or both.

A member of the Garda Síochána may arrest without warrant any person whom the member reasonably suspects of having committed the above offence.

Removal from the State of persons refused leave to land.

The following persons may be removed from the State under a simplified procedure

a non-national to whom leave to land has been refused under Article 5(2) of the Aliens Order 1946 (SR&O 1946 No. 395) (“the Order”),
a non-national who has failed to comply with Article 5(1) of the Order,
a non-national who has entered the State in contravention of Article 6 of the Order,
a non-national deemed to be a person to whom leave to land has been refused under the Order,
a non-national who has failed to comply with section 4(2) of the Immigration Act 2004,
a non-national who has been refused a permission under section 4(3) of that Act,
a non-national who is in the State in contravention of section 5(1) of that Act,
a non-national who has landed in the State in contravention of section 6(1) of that Act,]

whom an immigration officer or a member of the Garda Síochána, with reasonable cause, suspects has been unlawfully in the State for a continuous period of less than 3 months.

Such a person may be arrested without warrant by an immigration officer or a member of the Garda Síochána. A person so arrested may be detained—

under warrant of that officer or member in a prescribed place and in the custody of the officer of the Minister or member of the Garda Síochána for the time being in charge of that place, or
for a period or periods each not exceeding 12 hours—
- 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
- within the port referred to in clause (I).

Minors

This does not apply to a person who is under the age of 18 years.

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 shall apply as if he or she had attained the age of 18 years.

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-, 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.

Detention

A person arrested and detained under this provision may, be detained only until such time (being as soon as practicable) as he or she is removed from the State in accordance with this section but, in any event, may not be detained for a period exceeding 8 weeks in aggregate.

The following periods shall be excluded in reckoning a period –

any period during which the person is remanded in custody pending a criminal trial or serving a sentence of imprisonment,

any period spent by the person on board a ship, railway train, road vehicle or aircraft, and
if the person has instituted court proceedings challenging the validity of his or her proposed removal from the State, any period spent by the person in a place of detention between the date of the institution of the proceedings and the date of their final determination including, where notice of appeal is given, the period between the giving thereof and the final determination of the appeal or any further appeal therefrom or the withdrawal of the appeal or, as appropriate, the expiry of the ordinary time for instituting any such appeal.

Removal

Where a person so detained institutes court proceedings challenging the validity of his or her proposed removal from the State, 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.It 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:

that the person reside or remain in a particular district or place in the State;
that he or she report to a specified Garda Síochána station or immigration officer at specified intervals;
that he or she surrender any passport or travel document in his or her possession.

The person concerned shall be removed by an immigration officer or a member of the Garda Síochána (at the option of the officer or member)—

to the state where he or she last embarked (whether by land, sea or air) for the State, if known,
where the person was refused leave to land in circumstances where he or she arrived at a port in the State for the purpose of passing through the State in order to travel to another state and either
the carrier who was to take the person to the country of destination refused to take the person on board, or
the authorities of the state of destination have refused the person entry into that state and have sent him or her back to the State,
to the state of the person’s original embarkation for the State,
to the state which issued the passport or travel document held by the person, if any,
to the country of nationality of the person, so far as it appears to the immigra- tion officer or the member of the Garda Síochána concerned, or
to any country to which the person is guaranteed entry.

A person arrested and detained may be placed on a vehicle about to leave the State for a place by an immigration officer or a member of the Garda Síochána, and shall be deemed to be in lawful custody while so detained and until the vehicle leaves the State.

The person in charge of a vehicle bound for a place, if so required by an immigration officer or a member of the Garda Síochána, receive a person to whom this section applies and his or her dependants, if any, on board such vehicle and afford him or her and his or her dependants proper accommodation and maintenance during the journey.

A person to whom this section applies—

shall not, by act or omission, obstruct or hinder an immigration officer or a member of the Garda Síochána engaged in the removal of a person from the State
shall, for the purpose of facilitating his or her removal from the State, co- operate in any way necessary to enable an immigration officer or a member of the Garda Síochána engaged in the removal of the person to obtain a travel document, ticket or other document required for the purpose of such removal and, in particular, shall comply with any request from the immigration officer or, as the case may be, the member of the Garda Síochána to sign a document in that connection or to affix his or her fingerprints to such a document,
shall not behave in a manner likely to endanger the safety of himself or herself or the safety of others in the course of his or her removal from the State.

A person who contravenes the above shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding €3,000 or to imprisonment for a term not exceeding 12 months or to both.

Carrier Issues

The following applies where the identity of the carrier in whose vehicle a person to whom this section applies arrived in the State is known.

An immigration officer or a member of the Garda Síochána may give a direction in writing in the prescribed form (or in a form to the like effect) to the carrier concerned to remove the person concerned, without delay, at no expense to the State, to a place referred to below and the carrier shall comply with any such direction.
A direction may specify, at the option of the person giving the direction, that the carrier remove the person concerned by trans- porting him or her in a vehicle under his or her control or by arranging with another carrier for the removal of the person concerned.
Where the carrier fails or is unable to comply without delay with a direction under the immigration officer or member of the Garda Síochána concerned may make alternative arrangements for the removal of the person to a place referred to
Where alternative arrangements are made), the costs incurred by the Minister in respect of the maintenance, detention or removal of the person concerned may be recovered from the carrier as a simple contract debt in any court of competent jurisdiction.

A person who fails to comply with a direction is guilty of an offence and shall be liable—

on summary conviction to a fine not exceeding €3,000 or to imprisonment for a term not exceeding 12 months or to both, or
on conviction on indictment to a fine not exceeding €50,000 or imprisonment for a term not exceeding five years or both.

A member of the Garda Síochána may arrest without warrant any person whom the member suspects of having committed an offence).

Offences by bodies corporate.

Where an offence under the Immigration Act has been committed by a body corporate and is proved to have been committed with the consent or connivance of or to be attributable to any neglect on the part of the person being a director, manager, secretary or other officer of the body corporate, or a person who was purporting to act in any such capacity, that person as well as the body corporate shall be guilty of an offence and be liable to be proceeded against and punished as if he or she were guilty of the first-mentioned offence.

Where the affairs of a body corporate are managed by its members, this shall apply in relation to the acts and defaults of a member in connection with his or her functions of management as if he or she were a director or manager of the body corporate.

Powers of authorised officers and immigration

An authorised officer, a member of the Garda Síochána or an immigration officer may, for the purposes of the Immigration Act, take or cause to be taken the fingerprints of an applicant.

Fingerprints shall not be taken under this section from a person under the age of 14 years except in the presence of a person who is a parent or a person who is acting in loco parentis; or an officer of the health board.

The fingerprints of a person under the age of 14 years shall not be taken under this section without the prior approval—

in the case of an authorised officer or an immigration officer who is not a member of the Garda Síochána, of the Minister or a person designated for that purpose by the Minister; o
in the case of a member of the Garda Síochána, of his or her chief superintendent or a person designated for that purpose by his or her chief superintendent.

If and for so long as the authorised officer, 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 14 years, these provisions shall apply as if he or she had attained the age of 14 years.

An applicant who refuses to permit his or her fingerprints to be taken is deemed not to have made reasonable efforts to establish his or her true identity and to have failed to comply with these requirements.

The Commissioner of the Garda Síochána shall arrange for the maintenance of a record of fingerprints taken. Every fingerprint of an applicant taken and every copy thereof shall, if not previously destroyed, be destroyed—

in case the applicant becomes a citizen of the State, before the expiration of one month after the granting of the certificate of naturalisation or of Irish citizenship to him or her or the acknowledgement by the Minister of the validity of his or her declaration accepting Irish citizenship, as the case may be;
in any other case, before the expiration of 10 years after the taking of such fingerprints.

Information obtained may be communicated to convention countries or a safe third country.