Foreign students need to carry ID at all times?

Rooneysdaman

What would the penalty/repercussions be for a foreign student who let's say, when asked for ID by a guard in a public place could not produce it that very minute? Would there happen to be a grace period by which such a student could present at the local garda station to show the ID within a few days? Suppose there was a scenario where such a person was actually arrested and put in handcuffs for the specific reason that they did not have ID on them when asked? I'm just wondering what the garda's powers are in such a situation.

MagicSean

Section 11, 12 and 13 of the Immigration Act 2004. I'm surprised it's never been challenged to be honest.

http://www.irishstatutebook.ie/2004/en/act/pub/0001/index.html

Rooneysdaman

Thanks for the quick response! It would seem to me to be an abuse of power for a guard to ask a foreign student for ID simply because they are in court to support a friend at a hearing and pounce to arrest, handcuff and issue a summons when the ID can not be produced at that very minute because it is sitting on a desk at home. Being that I personally know nothing about the Irish legal system and whether its judges are as hardass as the guards appear to be, could you or anyone perhaps offer an opinion as to how somebody might go about challenging such an incident?
Many thanks.

blueythebear

k_mac wrote: »

Section 11, 12 and 13 of the Immigration Act 2004. I'm surprised it's never been challenged to be honest.

http://www.irishstatutebook.ie/2004/en/act/pub/0001/index.html

This was reported today in the Times in relation to a Liberian national charged under S12 Immigration Act 2004

http://www.irishtimes.com/newspaper/ireland/2011/0209/1224289345201.html

Given the bizarre facts of the case, I wonder if any precedent will be set...

234

k_mac wrote: »

Section 11, 12 and 13 of the Immigration Act 2004. I'm surprised it's never been challenged to be honest.

http://www.irishstatutebook.ie/2004/en/act/pub/0001/index.html

http://www.irishtimes.com/newspaper/ireland/2011/0209/1224289345201.html
Looks like somebody just did for the exact reason described. Coincidence...................................

spurs2010

Section 12 of the Immigration Act is a strict liability offence (no intention to break the law need to be proved by but the Gardai) the cops went overboard here.......... are there other facts that apply ?

Your friend should plead not guilty if charged and get a court solicitor or at least get legal advice if he represents himself:)

MagicSean

Rooneysdaman wrote: »

Thanks for the quick response! It would seem to me to be an abuse of power for a guard to ask a foreign student for ID simply because they are in court to support a friend at a hearing and pounce to arrest, handcuff and issue a summons when the ID can not be produced at that very minute because it is sitting on a desk at home. Being that I personally know nothing about the Irish legal system and whether its judges are as hardass as the guards appear to be, could you or anyone perhaps offer an opinion as to how somebody might go about challenging such an incident?
Many thanks.

It's not an abuse of power. It's a statutory power. The Gardaí have a power of discretion on a case by case basis but there is no obligation on them to use it. Your problem is with the statute. You will have to consult a solicitor for a possible defence. As already mentioned it is a strict liability offence so it would be difficult to defend.

MagicSean

234 wrote: »

http://www.irishtimes.com/newspaper/ireland/2011/0209/1224289345201.html
Looks like somebody just did for the exact reason described. Coincidence...................................

i can't see this case being successful. I was thinking more along the lines of an EU citizen challenging it as a barrier to the free movement of persons.

spurs2010 wrote: »

Section 12 of the Immigration Act is a strict liability offence (no intention to break the law need to be proved by but the Gardai) the cops went overboard here.......... are there other facts that apply ?

Your friend should plead not guilty if charged and get a court solicitor or at least get legal advice if he represents himself:)

A nice bit of assumption mixed with bad advice. You have no way of knowing if the Gardaí went overboard because you don't know the facts of the case.

Op ignore the advice given by this poster about pleading not guilty. Your friend should consult a solicitor before pleading.

Our man in Havana

i can't see this case being successful. I was thinking more along the lines of an EU citizen challenging it as a barrier to the free movement of persons.

Indeed. A case of an Irish citizen being denied entry without a passport would prove an interesting case, or an EU citizen as you describe above.

I can't see the case before the courts at present being sucessful.

source

k_mac wrote: »

i can't see this case being successful. I was thinking more along the lines of an EU citizen challenging it as a barrier to the free movement of persons.

The Immigration Act does not apply to EU citizen's only to those from non EU countries.

MagicSean

foinse wrote: »

The Immigration Act does not apply to EU citizen's only to those from non EU countries.

Section 12 applies to all non-nationals, unless it has been recently ammended.

source

k_mac wrote: »

Section 12 applies to all non-nationals, unless it has been recently ammended.

Section 2 (2) Nothing in this Act shall derogate from—

(a) any of the obligations of the State under the treaties governing the European Communities within the meaning of the European Communities Acts 1972 to 2003,

(b) any act adopted by an institution of those Communities,

(c) section 9(1) of the Refugee Act 1996 ,

(d) the European Communities (Aliens) Regulations 1977 ( S.I. No. 393 of 1977 ), or

(e) the European Communities (Right of Residence for NonEconomically Active Persons) Regulations 1997 ( S.I. No. 57 of 1997 ).

This is why Section 9(1) doesn't apply to EU citizens (they don't have to report to the immigration officer) and any other section in the act doesn't apply to EU citizens.

drkpower

k_mac wrote: »

Section 12 applies to all non-nationals, unless it has been recently ammended.

Dont think so.
Section 2 says this:
2) Nothing in this Act shall derogate from—
(a) any of the obligations of the State under the treaties governing the European Communities within the meaning of the European Communities Acts 1972 to 2003,


And Citizens Information seems to interpret the Act as applying to non EEA notionals only.
http://www.citizensinformation.ie/en/moving_country/moving_to_ireland/rights_of_residence_in_ireland/registration_of_non_eea_nationals_in_ireland.html
which seems to be the correct interpretation

MagicSean

If you can point to an obligation or regulation which is breached by section 12 applying to EU citizens I will gladly discuss it. Many other EU countries have mandatory ID policies.

In fact Europa website says the following

For stays of less than three months, the only requirement on Union citizens is that they possess a valid identity document or passport. The host Member State may require the persons concerned to register their presence in the country within a reasonable and non-discriminatory period of time.

blueythebear

foinse wrote: »

Section 2 (2) Nothing in this Act shall derogate from—

(a) any of the obligations of the State under the treaties governing the European Communities within the meaning of the European Communities Acts 1972 to 2003,

(b) any act adopted by an institution of those Communities,

(c) section 9(1) of the Refugee Act 1996 ,

(d) the European Communities (Aliens) Regulations 1977 ( S.I. No. 393 of 1977 ), or

(e) the European Communities (Right of Residence for NonEconomically Active Persons) Regulations 1997 ( S.I. No. 57 of 1997 ).

This is why Section 9(1) doesn't apply to EU citizens (they don't have to report to the immigration officer) and any other section in the act doesn't apply to EU citizens.

These derogations apply mainly at the point of entry into the State thereby negating the effect of S11. The rules on free movement do require you to produce valid ID when travelling through the EU in order to establish your citizenship of an EU Country. You'll note that the derogations include a reference to the Refugee Act 1996 also, thereby dealing with a situation where a refugee with no passport or ID arrives at the frontier of the State. SUch a person will not be arrested under S11 for not having ID if they claim asylum.

However, it is conceivable that a French national could be arrested under S12 if they didn't have a passport on them. I don't know if this has ever happened though and I imagine that a Garda would have to use discretion in such a case as there would be a challenge to such legislation if it was implemented this way.

MagicSean

foinse wrote: »

Section 2 (2) Nothing in this Act shall derogate from—

(a) any of the obligations of the State under the treaties governing the European Communities within the meaning of the European Communities Acts 1972 to 2003,

(b) any act adopted by an institution of those Communities,

(c) section 9(1) of the Refugee Act 1996 ,

(d) the European Communities (Aliens) Regulations 1977 ( S.I. No. 393 of 1977 ), or

(e) the European Communities (Right of Residence for NonEconomically Active Persons) Regulations 1997 ( S.I. No. 57 of 1997 ).

This is why Section 9(1) doesn't apply to EU citizens (they don't have to report to the immigration officer) and any other section in the act doesn't apply to EU citizens.

drkpower wrote: »

Dont think so.
Section 2 says this:
2) Nothing in this Act shall derogate from—
(a) any of the obligations of the State under the treaties governing the European Communities within the meaning of the European Communities Acts 1972 to 2003,


And Citizens Information seems to interpret the Act as applying to non EEA notionals only.
http://www.citizensinformation.ie/en/moving_country/moving_to_ireland/rights_of_residence_in_ireland/registration_of_non_eea_nationals_in_ireland.html
which seems to be the correct interpretation

We're not talking about Section 9. We're talking about Section 11 which specifically states that only people from England and N.I. are exempt.

drkpower

k_mac wrote: »

We're not talking about Section 9. We're talking about Section 11 which specifically states that only people from England and N.I. are exempt.

Well, actually you were talking about s. 11,12 & 13, and in particular s. 12....:D

And s. 11 doesnt say 'only people from England and N.I. are exempt'; its says that the section does not apply to any person (other than a non-national) coming from or embarking for a place in the State, Great Britain or Northern Ireland.

Anyhoo, the point that myself and & foine were making is that the same definition of non-national applies to section 9 as it does to section 12; and the Cit. Info Bureau seem to believe section 9 only applies to non-EEA citizens, which suggests that may be the correct interpretation. Maybe you should talk to them and find out what leads them to such an interpretation.

Dandelion6

blueythebear wrote: »

However, it is conceivable that a French national could be arrested under S12 if they didn't have a passport on them.

There was an Irish national arrested under this a couple years ago. He was a naturalised Chinese immigrant but the Gardaí refused to allow him go home and get his passport - they threw him in jail for a few hours until his wife was able to come and sort him out.

A law like this has "racial profiling" written all over it.

MagicSean

A non-national is defined as anyone not born in Ireland. Section 9 relates to a register of non-nationals. EU members are excluded from the requirement to register at the choice of the State. To my knowledge there is nothing that actually prevents a state requiring eu residents to register. This seems to be the position on the Europa website too which i would trust over citizens information on matters of eu law. Section 12 relates to the production of ID on request. This applies to anyone over the age of 16 who was not born in the state. Naturalised citizens are not exempt from it.

dermot_sheehan

k_mac wrote: »

A non-national is defined as anyone not born in Ireland. Section 9 relates to a register of non-nationals. EU members are excluded from the requirement to register at the choice of the State. To my knowledge there is nothing that actually prevents a state requiring eu residents to register. This seems to be the position on the Europa website too which i would trust over citizens information on matters of eu law. Section 12 relates to the production of ID on request. This applies to anyone over the age of 16 who was not born in the state. Naturalised citizens are not exempt from it.

as a Non-Irish Born citizen I would disagree with this interpretation.

Non-National means a person who is a non citizen and whom an Order was not made under the Aliens Act 1935 exempting persons of the nationality from the application of the 1935 act.

The only aliens order still in force relates to British Citizens:
http://www.irishstatutebook.ie/1999/en/si/0097.html

Therefore British Citizens can for example change their name by deed poll without the licence of the department of justice like irish citizens (this restriction as applied to EEA citizens is probably unlawful but has never been challenged).

The immigration act therefore defines non british and non irish citizens as non nationals but also states that nothing in the act detracts from the states obligations under european law.

So therefore EEA citizens do not have to register their residence since such a requirement is not imposed on irish citizens. Similarly EEA citizens do not have to carry ID since a requirement is not imposed on irish citizens. It would be lawful for the state to require EEA citizens to carry ID or register provided a requirement was placed on irish citizens as well.

So non- British EEA citizens are technically defined as non nationals under the immigartion act, but in practice it has very little effect.

MagicSean

You can disagree with it if you want. A non-national is defined as someone born outside the state and the requirement to produce ID is on all non-nationals including those from the eu. That's how it works in practice and the courts don't seem to have a problem with it. No successful challenge has yet been brought against it nor does it seem to violate eu law.

Our man in Havana

What would happen if an Irish born national rolled up at Rosslare from France without a passport or any identification?

blueythebear

k_mac wrote: »

You can disagree with it if you want. A non-national is defined as someone born outside the state and the requirement to produce ID is on all non-nationals including those from the eu. That's how it works in practice and the courts don't seem to have a problem with it. No successful challenge has yet been brought against it nor does it seem to violate eu law.

The legislation seems to confirm that a non-national is defined as:

Immigration Act 1999, S1:
"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;"

Aliens Act 1935, S2:
In this Act the word “alien” means a person who is not a citizen of Saorstát Eireann.

S10 allows for the Minister for Justice to make specific provisions for certain nationals.

It seems clear enough from the foregoing that a non-national is merely not a citizen of Ireland or is there another definition somewhere else in the legislation?

Also, S12 (4) Immigration Act 2004, specifically dictates that the section does not apply to
a "non-national born in Ireland" so it seems clear enough from the legislation that "non-national" is defined as a non-citizen with the exception of those persons under which an order under S10 of the Aliens Act 1935 applies.

Dandelion6

k_mac wrote: »

A non-national is defined as someone born outside the state

Where is this definition? Cite the legislation please.

MagicSean

I stand corrected. It is a citizen and not someone born in Ireland.

Victor

Our man in Havana wrote: »

What would happen if an Irish born national rolled up at Rosslare from France without a passport or any identification?

Realistically, they would need to prove they are Irish if asked. I imagine immigration are entitled to temporarily detain someone so as to determine their identity.

k_mac wrote: »

You can disagree with it if you want. A non-national is defined as someone born outside the state and the requirement to produce ID is on all non-nationals including those from the eu.

That may the the position under immigration law, but may not be the position under EU law.

johnnyskeleton wrote: »

However, that is not what democracy is. Democracy has been unkindly described as the tyranny of the majority over the minority and while I don't think it is as stark as that, when it is put pin to collar that is essentially what democracy is. Democracy is the ability of the majority to impose their views, by force if necessary, upon the minority.

But in most democracies, the tyranny of the majority is tempered by a constitution and international / multi-lateral agreements.

Save maybe Berlusconi's Italy. :pac:

acme4242

ICI calls for investigation of unlawful detention of Irish citizen

The Immigrant Council of Ireland has written to the Minister for Justice, Equality and Law Reform, asking him to investigate the unlawful detention of an Irish citizen on “immigration grounds” on November 4.

The man, who was born in China, was pulled over by gardaí in relation to a road traffic matter and asked to show his passport. Despite showing two other forms of identification and informing the officer he was an Irish citizen, he was taken to Kevin Street Garda Station, searched and placed in a cell until his wife came to the station with his passport. He was then released without charge.

The An Garda Síochána Press Office confirmed to RTE’s Liveline programme that the man was arrested on suspicion of having committed an offence under Section 12 of the Immigration Act, something it is impossible for an Irish citizen to do.

NOTE: Within the US, if you tell a police officer you are an American Citizen, that is the end of it, the police could not demand anything else. like a passport. The Idea is to protect US Citizens inside the US from the police. You can only demand Passports at the port.
While some may say this is a loophole, its the only way to protect citizens in their own country if they have a different colour or accent from what police consider their own profile or normal !

It was this US policy they wanted to amend in Arizona, so they could arrest anyone they suspected of being an illegal alien, meaning certain non-whites would be forced to carry their ID papers
US outrage over ‘Nazi’ law for migrants in Arizona

Dandelion6

The High Court has ruled unconstitutional the requirement that "non-nationals" show a passport on demand.

This article in today's Times describes the case I referred to a few posts ago, where an Irish citizen from China was detained for several hours because Gardaí refused to believe he was an Irish citizen.

Our man in Havana

I doubt anything will change.

source

I believe this is exactly why we should have a national ID card. If every Irish citizen over the age of 18 is required to carry a national ID card then a situation like this would not have arisen, as the person can clearly prove that they are an Irish citizen.

It would also cut down on the number of cases brought to the courts under section 24 Criminal Justice (Public Order) Act 1994 (failing/refusing to give name and address/giving false name and address). Which in my mind are just a waste of the courts time.

steve9859

Why would people not carry ID with them? I really dont get it. Even when Im here in Ireland I always have something with me. If I am in a different country I certainly would, especially outside the EU - I would always carry my driving licence or passport. I have heard all the arguments but still dont get why anyone would have a problem with carrying ID with them - bring on a national ID card I say!

MagicSean

steve9859 wrote: »

Why would people not carry ID with them? I really dont get it. Even when Im here in Ireland I always have something with me. If I am in a different country I certainly would, especially outside the EU - I would always carry my driving licence or passport. I have heard all the arguments but still dont get why anyone would have a problem with carrying ID with them - bring on a national ID card I say!

Some people like to work under the radar. The irony is that Google probably know more about them than the government. They're more than happy to give all their details to a random survey on an email but suggest a national database and they lose their minds.

acme4242

foinse wrote: »

I believe this is exactly why we should have a national ID card. If every Irish citizen over the age of 18 is required to carry a national ID card then a situation like this would not have arisen, as the person can clearly prove that they are an Irish citizen.

It would also cut down on the number of cases brought to the courts under section 24 Criminal Justice (Public Order) Act 1994 (failing/refusing to give name and address/giving false name and address). Which in my mind are just a waste of the courts time.

learning lessons from history.

Carrying Compulsory ID's papers was dropped in the UK in the 1950's
One of the reasons was the fact that Police started abusing their powers.

They would stop people they already knew and had stopped earlier
and demand ID papers.

Our man in Havana

I have no objection to ID cards provided they are for official use only i.e. for identifying the person to state bodies only. What I would fear would happen is that the cards would be demanded for non statutory purposes by persons not affiliated with the state.

MagicSean

Our man in Havana wrote: »

I have no objection to ID cards provided they are for official use only i.e. for identifying the person to state bodies only. What I would fear would happen is that the cards would be demanded for non statutory purposes by persons not affiliated with the state.

The problem is that a national ID card would require a national database. Then the problem becomes what should be kept on the database. Name? Date of birth? PPS number? Fingerprint? Personally I think we should be aiming to combine many of our databases with varying levels of access such as Garda, Prison, Social Welfare and Courts.

Our man in Havana

I totally agree with you there.

What I don't want to happen is that your ID card is demanded in Tescos when you want to buy a load of bread or by Sky/UPC to get subscription TV.