Constitutional Rights: Non-nationals

This is purely a hypothetical.

Do non-nationals enjoy the protection of the Constitution?

3 factors to consider: If they are:

1)Legally resident here*, or;

2)Not legally resident but subject to Irish immigration proceedings, or;

3)EU citizens.

Do each of these categories have different rights? Are some rights so universally accepted within western legal systems, such as habeas corpus, that they extend to all persons within the State or is it a simple issue of you either have all the rights or none of them?


*In this I would include tourists

Victor

For the most part the rights of citizens and non-citizens are the same, they do however vary in some areas especially those related to the nature of citizenship.

Habeas corpus, extends to all persons within the State*. Subject to law, the right to vote only extends to citizens and certain others.

* There have been problems in this for people in the physical process of deportation or anyone on an American government aircraft.

Tom Young

OP The answer is generally: No

Your factor remarks:

1) No
2) No
3) Yes, with conditions

Overheal

under my passport it tells me that im am subject to all of your laws while im in the state. is the Constitution not simply the foundation of your laws?

Victor

Just because you are subject, doesn't mean you can benefit!

Thirdfox

Wasn't there the case of an English woman who abducted her child and took him/her here and tried to rely on Art 42 on family rights? The court in that case refused her because she broke the law in coming here specifically for those rights.

Does anyone know the name of that case or am I being delusional?

Our man in Havana

Would this not cause problems where say a UK national living here permanently will have less rights under the law than a native Irish citizen?

Thirdfox

I think the court looked at the purposes of her travelling here - she clearly intended to come here just to benefit from Irish Constitutional rights (and kidnapped someone to do it). I think this can be distinguished from someone seeking to live here who happens to need Constitutional protection.

johnnyskeleton

Overheal wrote: »

under my passport it tells me that im am subject to all of your laws while im in the state. is the Constitution not simply the foundation of your laws?

Pretty much. Although the constitution refers to both citizens and persons, the reality is that while certain rights are exercisable only by citizens, other rights apply to everybody. So for example Art 38: "No person shall be tried on any criminal charge save in due course of law".

So although article 40 states: "All citizens shall, as human persons, be held equal before the law", it is a ridiculous argument to say that non-citizens are not entitled to equality (other than insofar as they do not have citizenship rights).

If nothing else, the European Convention on Human Rights is now part of Irish Domestic law, and if there were certain basic rights denied to non citizens, this can be treated as no longer applying due to the 2003 ECHR Act.

Stirling

But without turning this into a Constitutional Law lecture there are instances in which Non Nationals are held not to be equal before the law, not allowed to work except in certain circumstances etc, and this can be justified by Art 40.1 just as the State can, and has done on many occcasions, justify non-equal treatment as between its citizenry.

Think the Constitution protects basic rights of all persons in the State and confers certain particular rights on its citizens. Even in this there are qualifications though - every citizen has the right to note but only in the Dail elections whereas only certain persons will attain the right to vote in the Seanad elections so more extensive rights are granted to some citizens dependant on their circumstances.

Thirdfox

Thirdfox wrote: »

Wasn't there the case of an English woman who abducted her child and took him/her here and tried to rely on Art 42 on family rights? The court in that case refused her because she broke the law in coming here specifically for those rights.

Does anyone know the name of that case or am I being delusional?

The Constitution wouldn't apply here anyway. Brussels II (bis), the Hague and Luxembourg Conventions all govern child abduction procedures.

Thirdfox

Deleted User wrote: »

The Constitution wouldn't apply here anyway. Brussels II (bis), the Hague and Luxembourg Conventions all govern child abduction procedures.

These Conventions all have supremacy over the Constitution? Doesn't that need a Constitution article to give them that power (like with the EU Treaties)?

Victor

The Hague certainly and I imagine the other two have been incorporated into Irish Law.

Under this, most states will return a removed child to the state from which they have been removed.

Thirdfox

Incorporation into Irish law...but certain rights in the Constitution are "antecedent and superior to all positive law" - especially the rights of the family. Wouldn't this lead to a conflict of laws?

Victor

And those conventions don't contravene anything because such situations involve one person removing at least one child from the care of one parent. It is the person moving the child who is breaching rights.

Planxty

Thirdfox wrote: »

Wasn't there the case of an English woman who abducted her child and took him/her here and tried to rely on Art 42 on family rights? The court in that case refused her because she broke the law in coming here specifically for those rights.

Does anyone know the name of that case or am I being delusional?

I don't recall that case but M v M [1990] 2 IR 52 may be somewhat similar, although it concerns the subject of domicile.

That involved an english couple who moved to Ireland in the 70's. The husband was an artist and his only motivation was moving here was to avail of the tax exemption for artists.
Anyways, they divorced and some crap happened regarding maintenence and domicile.

Barr. J held that this notion of setting up a permanent home involved remaining unless there was a changing of circumstances, which at the time could not be contemplated, and that remaining because of a tax regime was not sufficient.

Not sure if that even relates to what the OP was asking...

Mr Burns

What is basically said that it is impossible to estabhlish a new domicile to the satasfaction of the courts here. My UK citizen partner and I are married here many years and from my reading of decisions it appears that certain rights particularly under Art 42 will be denied due to the non national status of my partner despite her residence here for many many years.
It seems that she will never be able to be domiciled here and she has no desire to become an Irish citizen.

Victor

Have her buy a burial plot. If its good enough for the Revenue ...