Monday, August 8, 2011

Amendments to the Immigration Act 2004


The Civil Law (Miscellaneous Provisions) Act, 2011 was signed into law by the President on 3 August, 2011. The Act contains amendments to the Immigration Act, 2004  which will positively impact non nationals resident in the State, and particularly those non nationals resident pursuant to the EU Free Movement laws.

The changes derive from the recent High Court judgement of  Ebere Dokie v. DPP, HRC, Ireland and the Attorney General (792JR/2008) in which it was held that Section 12 of the Immigration Act 2004 was unconstitutional. This Section had placed an obligation on all non nationals in the State to produce on demand a valid passport or equivalent document or GNIB Registration Certificate, and refusal to do so without satisfactory explanation was deemed an offence punishable by up to a term of 12 months imprisonment. This Section was the basis upon which many non nationals have been detained in Irish prisons. Many detainees have remained in detention for prolonged periods of time because they could not produce their passport/identity documents and therefore were regarded as on going offenders pursuant to Section 12.

Section 34 of The Civil Law (Miscellaneous Provisions) Act, 2011 contains amendments of Sections 12  (and section 11) of the Immigration Act 2004 which contain particular safeguards in order to render the Act in line with the Constitution. For example, a non-national may now be required to produce on demand “for the purposes of establishing that his or her presence in the State is not in contravention of section 5” a valid passport or other equivalent document establishing his or her identity. Failure to comply with this requirement is an offence, but a defence is clearly outlined as follows;

In proceedings brought against a person for an offence under this section, it shall be a defence for the person to prove that, at the time of the alleged offence, he or she had reasonable cause for not complying with the requirements of this section to which the offence relates.

The section does not apply to persons under 16 years of age. However, unlike the old section 12, there is no longer an exemption for non-nationals born in Ireland.

A further significant change introduced by these amendments is the exclusion from the ambit of Section 11 and 12 of EEA nationals and their dependents exercising Treaty Rights of free movement.
Many cases we are aware of the non nationals are not in possession of these documents through no fault of their own, for example when the documents have become mislaid by the relevant State bodies, as can often happen. We therefore very much welcome the new restrictions on the arrest and detention of non nationals who fail to provide their identity documents on demand. We also welcome the acknowledgement of the rights of the family members of EU nationals to reside in the State on the same basis as their EU family member and Irish citizens alike.

Brophy Solicitors


  1. EU family members are protected. But what about Irish Family members ?

    "Subsection (5) defines ‘‘non-national’’ such that the term excludes Irish citizens and persons exercising EU Treaty rights of free movement."
    Namely persons covered by (Free Movement of Persons) Regulations 2006 and 2008