Immigrants in Ireland and Identity Documents
IN BRIEF – the law as it now stands
- Non-EEA nationals in Ireland must present a passport or equivalent document confirming their identity and nationality, or their Registration Certificate (GNIB card), on demand to any immigration officer or member of An Garda Síochána, where the purpose of the demand is to establish whether the person is legally resident in the State
- The requirement does not apply to asylum-seekers and refugees
- It is an offence not to comply with the requirement. The penalty for failing to comply is up to 12 months imprisonment, a fine of up to €3,000, or both
- It is a defence to have“reasonable cause” for failing to produce the required documentation on demand. In other words, if you can explain, to the satisfaction of the District Court Judge, why you do not have a passport or GNIB card, the Judge may find you “not guilty” of the offence
1. Where this law comes from, and why many believe it encourages “racial profiling”
2. The “Dokie” case, and how the law was found unconstitutional
3. The law as it now stands, in a bit more detail
4. Who is required to produce identification on demand?
5. Did the amended law do anything to prevent “ethnic profiling”?
1. Where the law comes from, and why many believe it encourages “racial profiling”
The Immigration Act 2004 is one of the primary pieces of legislation affecting immigrants in Ireland. One of the most controversial provisions of this Act was contained in Section 12, “Requirement as to production of documents,” which reads:
12.— (1) Every non-national shall produce on demand, unless he or she gives a satisfactory explanation of the circumstances which prevent him or her from so doing—
(a) a valid passport or other equivalent document, issued by or on behalf of an authority recognised by the Government, which establishes his or her identity and nationality, and
(b) in case he or she is registered or deemed to be registered under this Act, his or her registration certificate.
(2) A non-national who contravenes this section shall be guilty of an offence.
(3) In this section ‘‘on demand’’ means on demand made at any time by any immigration officer or a member of the Garda Síochána.
(4) This section does not apply to—
(a) a non-national who is under the age of 16 years, or
(b) a non-national who was born in Ireland.
Many people believe that that the application of Section 12 resulted in racial profiling by members of An Garda Síochána.
As pointed out by Caroline Nolan, writing in the Irish Times, no guidance was provided in the legislation on how non-nationals are to be identified: “How did gardaí identify passengers in cars or persons walking in the street as “non-nationals”? It seems judgments were made as to whether a person was Irish or not primarily on their appearance. Those who look least like the typical Irish person, whether Irish citizens or not, were most likely to have been affected by this legislation…”
This is supported by reference to the EU Minorities and Discrimination Survey published in 2009 which identifies Sub-Saharan Africans in Ireland as the minority group stopped most often by police of any in Europe – 59% per cent surveyed were stopped by gardaí during the 12 month period immediately preceding the survey. One third of Central and Eastern Europeans in Ireland were stopped during the same period. This compares to a stop rate of 9 per cent for Sub-Saharan Africans in Portugal.
The Migrant Rights Centre of Ireland (MRCI) published a report in March that highlighted that ethnic profiling, a form of racial discrimination, is being facilitated by the Irish state. The MRCI’s Director, Siobhán O’ Donoghue said: “Irish citizens are not required to carry ID, yet Irish immigration legislation states that ‘non nationals’ have to present ID on demand. Guards and Immigration Officers are clearly making judgements on who to ask for ID on the basis of their colour, accent and appearance and this is recognised internationally as discriminatory”. You can download and read about the report, “Singled Out: Exploratory Study on Ethnic Profiling in Ireland and its Impact on Migrant Workers and their Families,” here.
2. The “Dokie” case, and how the law was found unconstitutional.
In light of these issues therefore, the High Court judgement, in March, of Mr Justice Kearns in Ebere Dokie v. DPP, HRC, Ireland and the Attorney General (792JR/2008) was widely welcomed. The Court found that Section 12 of the Immigration Act 2004 was unconstitutional. The Judge stated that:
In summary therefore I am of the view that, while s. 12 was designed as an immigration control mechanism, its vagueness is such as to fail basic requirements for the creation of a criminal offence. As drafted it gives rise to arbitrariness and legal uncertainty. It also offends the principle that a person be not obliged to incriminate himself. I find it unconstitutional for those reasons.
The hope in the aftermath of this decision was summed up by Caroline Nolan: “Now that section 12 of the Act has been ruled unconstitutional, there is an opportunity to reflect on the dangers inherent in such legislation and to consider the need to ensure ethnic minorities are not subjected to inappropriate police surveillance.” Unfortunately, this hope may have been premature.
3. The law as it now stands, in a bit more detail
On August 2 2011, The Civil Law (Miscellaneous Provisions) Act 2011 was signed into law. This Act included (in Section 34) an amendment to Section 12 of the 2004 Immigration Act (“the 2004 Act”):
12.— (1) Every non-national present in the State (other than a non-national under the age of 16 years) shall produce on demand—
(a) a valid passport or other equivalent document, issued by or on behalf of an authority recognised by the Government, which establishes his or her identity and nationality, and
(b) in case he or she is registered or deemed to be registered under this Act, his or her registration certificate.
(2) (a) A non-national who contravenes this section shall be guilty of an offence.
(b) 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.
(3) In this section ‘on demand’ means on demand made at any time by the Minister, any immigration officer or a member of the Garda Síochána, for the purposes of establishing that the presence in the State of the non-national concerned is not in contravention of section 5.”
The new provision differs from the original in two respects:
Firstly, it introduces a defence that can be used by someone who has been arrested because he or she can’t produce the required documentation. It will be up to the District Court Judges to decide what might constitute someone’s having “reasonable cause for not complying with the requirements.”
It also explains that the purpose of the requirement to produce identification must be “for the purposes of establishing that the presence in the State of the non-national concerned is not in contravention of section 5 [of the 2004 Act].” Section 5 is the requirement that “non-nationals” have permission to remain in the State.
4. Who is required to produce identification on demand?
The 2011 Act (s. 11) specifies that Irish and (in most cases) European Citizens are exempted from the requirement to produce identification.
Section 5 of the 2004 Act exempts the following people from the requirement:
- People whose applications for asylum are pending. This does not extend to people whose applications for protection (under the Refugee Act of 2006) have been unsuccessful, but who have submitted an application to the Minister for a discretionary permission to remain (what is often called “humanitarian leave to remain”)
- People whose refugee status has been recognised
- Family members of refugees, who have joined them here under the refugee family reunification process (again, under the Refugee Act 2006)
- Programme refugees
5. Did the amended law do anything to prevent “ethnic profiling”?
Minister Alan Shatter did not deal with that question in the Dáil debate that took place in July in anticipation of the introduction of the amendment. Instead, he focused on the “…the vague nature of the legislation that applied,” which it was claimed the amendment had cured.
Speaking in the same Dáil debate, Thomas Pringle, an independent TD from Donegal West, was critical of Section 12, even its amended form:
“Such a section should not have been allowed into the legislation at all. This very broad provision meant that any non-Irish national, or anyone whom a Garda or immigration officer believed to be a non-Irish national, had to produce appropriate identification on demand, without any explanation, or face possible prosecution. The number of prosecutions under section 12 rose from three in 2005 to 291 in 2008.”
While the issue of “vagueness” raised in the Dokie case may have been addressed, the amended section 12 remains otherwise virtually identical to the original section, and our concerns that it validates and even encourages the practice of racial profiling by members of the Garda Síochána and immigration officers remain.
It is clear that we are not alone in identifying the discriminatory practices encouraged by Article 12 (as amended), as a serious issue that needs to be addressed. At Ireland’s Universal Periodic Review (link leads to download) before the United Nations in October 2011, one of the concerns raised by countries including Egypt, Uzbekistan, Brazil, Malaysia, Azerbaijan, Honduras and Iran was the issue of racial profiling in Ireland.
The European Union Minorities and Discrimination Survey previously referenced revealed that in spite of the high incidence of stops, the majority (55 per cent) of Sub-Saharan Africans surveyed in Ireland maintain trust in the police. We believe that action is needed to combat discriminatory practices and policies in order to preserve this trust, for the benefit of all of Ireland’s residents, and for future generations.
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