The United States operates border preclearance facilities at a number of ports and airports around the world, including Dublin Airport and Shannon Airport. The preclearance facilities at Dublin Airport and Shannon Airport are now under intense scrutiny following President Trump’s recent Executive Order suspending all refugees’ entry to the US for  a 120 day period,  and issuing an indefinite ban on refugees from Syria and a 90-day ban on citizens from Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen.

President Trump’s blanket immigration ban based on nationality is unlawfully discriminatory, and in breach of our State’s obligations under the Irish Constitution, the European Convention of Human  Rights, and the Charter of Fundamental Rights.  It is now a matter of urgency that the Irish Government takes immediate steps to cease this practice on Irish soil. Otherwise, Ireland will be facilitating the US’s unlawful immigration practices, and will be open to liability to each individual affected.

Ireland initially entered an agreement with the US in 1986 to operate pre clearance facilities at Shannon Airport, and subsequently at Dublin Airport also. The Aviation (Preclearance) Act 2009 now governs the area.

The Act directs that the Minister for Transport may designate places within an airport in the State as an area within which preclearance to  the US may be carried out by Preclearance Officers and  Preclearance Officers are United States Customs and Border Protection officials.

The Act directs that Preclearance Officers may take and process applications from travellers seeking permission to land in the US, ask for the production of travel documents and other documents supporting the traveller’s application for permission to enter and examine such documents when produced, ask questions relating to the traveller’s eligibility to enter the United States, search such traveller and his or her goods,  arrest persons without warrant, where he or she reasonably suspects that the person poses an immediate threat (including the possession of a weapon) to the safety of officers or other persons in the preclearance area, and  review or revoke permission to enter the US.

The Act provides wide powers of detention to the Preclearance Officers, who may detain any person without warrant where  the Preclearance Officer reasonably suspects that the person has committed an indictable offence under the laws of the State or obstructed/attempted to obstruct a Preclearance  Officer in the performance of his or her functions under the Act.

Furthermore the the Preclearance Officer may request the assistance of an Irish law enforcement officer with respect to arresting a person who is deemed a threat, and the  Act directs that the Irish law enforcement officer shall assist a preclearance officer.

The Act therefore permits wide ranging powers of arrest and detention without warrant in the Preclearance area, and in some instances requires members of An Garda Siochana to assist.

The wide ranging powers given to  the US Preclearance Officers while operating on Irish soil is deeply troubling in light of the draconian US ban on refugees and persons from certain designated States (Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen).

We call on Mr Kenny’s urgent intervention to suspend the operation of the The Aviation (Preclearance) Act 2009  for the duration  of President Trump’s immigration bans.

Berkeley Solicitors Immigration Team