Air Navigation and Transport (Preinspection) Act, 1986

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Number 18 of 1986

AIR NAVIGATION AND TRANSPORT (PREINSPECTION) ACT, 1986

ARRANGEMENT OF SECTIONS

SCHEDULE

Number 18 of 1986

AIR NAVIGATION AND TRANSPORT (PREINSPECTION) ACT, 1986

AN ACT TO MAKE PROVISION WITH RESPECT TO THE IMPLEMENTATION BY THE GOVERNMENT OF AN AGREEMENT WITH THE GOVERNMENT OF THE UNITED STATES OF AMERICA RELATING TO THE PREINSPECTION IN THE STATE OF PERSONS TRAVELLING BY AIR TO THE UNITED STATES OF AMERICA; TO AMEND THE AIR NAVIGATION AND TRANSPORT ACT, 1950; AND TO PROVIDE FOR OTHER MATTERS CONNECTED WITH THE FOREGOING. [19th June, 1986]

BE IT ENACTED BY THE OIREACHTAS AS FOLLOWS:

Interpretation.

1.—In this Act—

“the Agreement” means the Agreement which is set out in the Schedule to this Act, and which is to be made between the Government and the government of the United States, and which relates to the preinspection in the State of persons (including aircrew) travelling by air to the United States, and references in this Act to “the Agreement” shall include a reference to the Agreement when made;

“the competent authority” means, as the context may require, the Minister or any person appointed by him by order under section 2 of this Act;

“Immigration and Naturalization Service” means the Immigration and Naturalization Service of the government of the United States;

“the Minister” means the Minister for Communications;

“preinspection” means a procedure whereby the Immigration and Naturalization Service carries out, in the State, the inspection, which is required under the laws of the United States relating to immigration and public health for entry into the United States, of persons (including aircrew) travelling thereto by air;

“preinspection facility” means a facility provided at an airport in the State where preinspection may be carried out in accordance with the Agreement;

“United States” means the United States of America.

Competent authority.

2.—(1) The Minister shall be the competent authority in the State for the purposes of the Agreement.

(2) The Minister may by order appoint such person as seems to him to be appropriate to carry out such of his functions as competent authority as may be specified in the order.

(3) The Minister may by order amend or revoke an order under this section (including this subsection).

(4) Every order made under this section shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the order is passed by either House within the next 21 days on which that House has sat after the order has been laid before it, the order shall be annulled accordingly, but without prejudice to anything previously done thereunder.

Agreements with air carriers.

3.—(1) The competent authority may enter into such agreements as may be necessary with any eligible air carrier who wishes to avail of preinspection.

(2) An agreement entered into pursuant to subsection (1) of this section shall specify the terms and conditions under which preinspection will be carried out.

(3) In this section “eligible air carrier” means any air carrier, whether scheduled or charter, who operates an air travel service which involves travelling non-stop between the State and the United States whether the air service originates in the State or elsewhere.

Charges for preinspection.

4.—(1) The Minister may, by regulations, with the consent of the Minister for Finance, prescribe fees in relation to the preinspection of passengers and aircrew.

(2) Without prejudice to the generality of subsection (1) of this section, regulations under this section may make provision for all or any of the following matters:

(a) the persons by whom the fees are to be paid;

(b) the manner in which the fees are to be paid;

(c) the manner in which any fees paid under the regulations are to be disposed of;

(d) any other matters relating to the payment, collection, or disposal of fees as may seem to the Minister to be appropriate or necessary.

(3) The competent authority may recover any fees payable pursuant to regulations under this section from the person by whom such fees are payable as a simple contract debt in any court of competent jurisdiction.

(4) Regulations made under this section shall be laid before each House of the Oireachtas as soon as may be after they are made and, if a resolution annulling the regulations is passed by either House within the next 21 days on which that House has sat after the regulations have been laid before it, the regulations shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder.

Persons assigned to carry out duties at preinspection facility.

5.—It shall be lawful for a citizen of the United States, who is a permanent employee of the government of the United States and is assigned to carry out duties at a preinspection facility, to carry out pursuant to the Agreement all or any of the following duties that is to say—

(a) to take and process applications for entry into the United States;

(b) to ask for the production of travel documents and to examine such documents when produced;

(c) to ask questions relating to the eligibility of the person concerned to enter the United States;

(d) to ask for the production of documents supporting the application for permission to enter the United States and to examine such documents when produced;

(e) to request permission to search a person and to carry out a search in accordance with the permission;

(f) to defer the granting of permission to a person to enter the United States until such person has undergone a further inspection on arrival in that country;

(g) to refuse permission in accordance with the Agreement for onward passage to a person who is found to be ineligible for entry into the United States;

(h) to provide all necessary documents and information to the immigration authorities of the State regarding the refusal of permission to any person to enter the United States and to provide such authorities with the reasons for such refusal.

Immunities and privileges for persons carrying out duties at preinspection facility.

6.—(1) A citizen of the United States, who is a permanent employee of the government of the United States and is assigned to carry out duties at a preinspection facility, shall not be amenable to the jurisdiction of the judicial or administrative authorities of the State in respect of acts performed by him in the exercise of his duties under the Agreement.

(2) The duties referred to in subsection (1) of this section are—

(a) to take and process applications for entry into the United States;

(b) to ask for the production of travel documents and to examine such documents when produced;

(c) to ask questions relating to the eligibility of the person concerned to enter the United States;

(d) to ask for the production of documents supporting the application for permission to enter the United States and to examine such documents when produced;

(e) to request permission to search a person and to carry out a search in accordance with the permission;

(f) to defer the granting of permission to a person to enter the United States until such person has undergone a further inspection on arrival in that country;

(g) to refuse permission in accordance with the Agreement for onward passage to a person who is found to be ineligible for entry into the United States;

(h) to provide all necessary documents and information to the immigration authorities of the State regarding the refusal of permission to any person to enter the United States and to provide such authorities with the reasons for such refusal.

(3) The immunity granted to employees of the government of the United States pursuant to subsection (1) of this section may be waived by that government.

(4) The State shall take all appropriate steps to protect the security of a preinspection facility against intrusion or damage and to protect the official archives or documents maintained by the Immigration and Naturalization Service at such facility.

(5) A citizen of the United States, who is a permanent employee of the government of the United States and who is assigned to carry out duties under the Agreement at a preinspection facility, shall enjoy such privileges as may be agreed between the Government and the government of the United States by an exchange of notes.

Provisions relating to aliens control.

7.—(1) Any person who, having arrived in transit at an airport in the State, presents himself at a preinspection facility, shall not, for the purposes of the Aliens Act, 1935 , and the European Communities (Aliens) Orders, 1977 to 1985, be deemed to have arrived in the State.

(2) Any person who, having arrived in transit at an airport in the State, has presented himself at a preinspection facility for preinspection and is, in accordance with the terms of the Agreement, refused permission by the Immigration and Naturalization Service to travel onwards to the United States shall be deemed, for the purposes of the Aliens Act, 1935 , and the European Communities (Aliens) Orders, 1977 to 1985, to have arrived in the State.

Amendment of Air Navigation and Transport Act, 1950.

8.—The Air Navigation and Transport Act, 1950, is hereby amended by—

(a) the substitution in section 19 (3) for “five pounds” of “two hundred and fifty pounds”, and

(b) the substitution in section 21 for “twenty pounds” of “one thousand pounds”,

and the said sections, as so amended, are set out in the Table to this section.

TABLE

(3) If any person—

(a) on being required by an authorised officer acting under this section to give his name and address, refuses to give his name or address or gives a false or fictitious name or address, or

(b) on being required by an authorised officer acting under this section to leave a State aerodrome, refuses or fails to leave it, or

(c) having left a State aerodrome in pursuance of the requirement of an authorised officer acting under this section or having been removed from a State aerodrome under this section, returns thereto on the same day,

that person shall be guilty of an offence under this section and shall be liable on summary conviction thereof to a fine not exceeding two hundred and fifty pounds.

21.—If any person—

(a) obstructs or impedes an authorised officer in the lawful execution of his powers and duties as an authorised officer under section 19 or 20 of this Act, or

(b) assaults an authorised officer in the lawful execution of those powers and duties,

that person shall be guilty of an offence under this section and shall be liable on summary conviction to a fine not exceeding one thousand pounds or, at the discretion of the Court, to imprisonment for any term not exceeding six months.

Costs and expenses.

9.—(1) Any costs incurred—

(a) in the provision pursuant to the Agreement of a preinspection facility, or

(b) in the maintenance of such a preinspection facility,

may, to such extent as may be sanctioned by the Minister for Finance, be paid out of moneys provided by the Oireachtas.

(2) The expenses incurred by the Minister in the administration of this Act shall, to such extent as may be sanctioned by the Minister for Finance, be paid out of moneys provided by the Oireachtas.

Short title, collective citation and construction.

10.—(1) This Act may be cited as the Air Navigation and Transport (Preinspection) Act, 1986.

(2) The collective citation the “Air Navigation and Transport Acts, 1936 to 1986” shall include this Act.

(3) The Air Navigation and Transport Acts, 1936 to 1986, and this Act shall be construed together as one Act.

SCHEDULE

Agreement between Ireland and the United States of America on Preinspection

The Government of Ireland and the Government of the United States of America,

Considering that preinspection in Ireland of passengers and aircraft crew required by United States immigration and public health laws and regulations may facilitate travel between the two countries,

Agree as follows:

Article I

(1) “Preinspection” is the procedure whereby the United States Immigration and Naturalization Service (“INS”) conducts, in Ireland, inspection of passengers and aircraft crew required by United States immigration and public health laws and regulations for entry into the United States. It does not include inspections required by other United States laws and regulations, such as customs inspections.

(2) For the purposes of this Agreement, the competent Authorities shall be:

(a) for the Government of the United States of America: the Immigration and Naturalization Service;

(b) for the Government of Ireland: the Minister for Communications, Kildare Street, Dublin 2, or any authority nominated by him.

Article II

Any flight by an authorised scheduled or charter air carrier destined non-stop from Ireland to the United States shall be eligible for preinspection.

Article III

Preinspection shall be conducted at Shannon Airport for a test period of four months commencing on a date to be agreed by both Governments. Thereafter, if both Governments notify each other by diplomatic note that they wish preinspection to continue it shall recommence at a date agreed by both Governments and shall continue for so long as this Agreement shall remain in force.

Article IV

Preinspection may be conducted at additional locations in Ireland by agreement, expressed in writing, of both Governments.

Article V

In accordance with United States immigration and public health laws and regulations, the INS may refuse passage onwards to the United States to any passenger or aircraft crew member on a flight subject to preinspection who refuses to answer questions of an INS officer relevant to his immigration status or refuses to submit to search by an INS officer or is found or deemed by the INS to be inadmissible to the United States; provided always that, except in circumstances arising under Article VI (5) of this Agreement, no citizen of the United States or alien lawfully resident in the US may be refused passage onwards to the United States.

Article VI

The Government of Ireland shall:

(1) permit the INS to carry out preinspection of passengers and aircraft crew on flights subject to preinspection and to determine the procedures for carrying out preinspection and the use of INS personnel;

(2) arrange for the provision of the preinspection facilities agreed by the competent authorities of both countries;

(3) permit the installation and operation of such communications and inspection aids and equipment as the INS requires and as are agreed by the competent authority of Ireland as being necessary for preinspection;

(4) when a passenger or aircraft crew member on a preinspected flight is refused passage onwards because of refusal to answer questions of an INS officer relevant to his immigration status or refusal to submit to search or is found or deemed by the INS to be inadmissible to the United States, upon request of the INS, provide appropriate law enforcement assistance to prevent such person from boarding the aircraft;

(5) upon request of the INS, provide appropriate medical assistance and, where necessary, access to medical isolation facilities for persons subject to preinspection who are suspected of having an infectious disease prescribed under Irish laws and regulations.

Article VII

The Government of the United States of America shall:

(1) provide, in agreement with the competent authority of Ireland, an appropriate number of INS officers to carry out with reasonable speed and efficiency preinspection for eligible flights of carriers to which preinspection has been extended in accordance with Article VIII;

(2) conduct preinspection in accordance with this Agreement, except that preinspection may be denied in the case of any flight where there is likely to be commingling of passengers or aircraft crew who have and who have not been preinspected or where, after consultation with the competent airport authority and with the air carrier(s) concerned, the INS determines that there is an insufficient number of INS officers to carry out preinspection with reasonable speed and efficiency or that preinspection facilities would be overtaxed;

(3) have the INS (and, as appropriate, other United States authorities) consult regularly with the competent authority of Ireland, with the competent airport authority and with the air carriers concerned on matters relating to the implementation of this Agreement;

(4) have the right to defer INS inspection onward as it deems necessary of any individual passenger or aircraft crew member;

(5) where a person is refused passage onwards to the United States in accordance with Article V, arrange that the INS will immediately inform the Irish Immigration Service of the refusal and supply all data relevant to that decision.

Article VIII

Each air carrier having flights eligible for preinspection shall have the option to use preinspection subject to the following conditions:

(1) an air carrier may apply to the competent authorities of both countries for preinspection for any or all of its eligible flights; prior to extending preinspection, the INS may require a reasonable period to make suitable arrangements;

(2) except during the test period, an air carrier desiring to withdraw entirely from preinspection shall give six months notice to the competent authorities of both countries, but if neither competent authority objects, it may withdraw sooner; if, however, an air carrier can demonstrate to the satisfaction of both competent authorities that preinspection is resulting in delay or cost, not foreseen in the prevailing agreements between the air carriers and the competent authorities, it may withdraw on 30 days notice;

(3) an air carrier desiring to withdraw from preinspection in respect of certain flights only must give reasonable notice to the INS; while it is recognised that the final decision in every case must rest with the INS, it is accepted that, in the case of last minute flight disruptions for reasons arising beyond the carrier's control, such notice period could be very short;

(4) the INS shall decline to conduct preinspection in respect of any air carrier until that carrier:

(a) has taken the necessary steps to enable it to deny carriage onwards to the United States to anyone found ineligible in accordance with Article V to travel on a preinspected flight; and

(b) has undertaken to be responsible for the removal of any such person to his point of embarkation or the country of which he is a national and to bear any costs (including, where necessary, accommodation and maintenance costs) arising therefrom.

Article IX

(1) United States citizens who are permanent employees of the Government of the United States, assigned to INS duties in Ireland under this Agreement, shall not be amenable to the jurisdiction of the judicial or administrative authorities of Ireland in respect of acts performed by them in the exercise of their duties under this Agreement. Such duties are: (a) as provided for by Article V, taking and processing applications for entry into the United States, asking for and examining travel documents, asking questions relevant to admissibility to the United States, asking for and examining supporting documentation, requesting a search, with the individual's consent carrying out the search, and refusing onward passage to any person found or deemed by the INS to be inadmissible to the United States; and (b) as provided for by Article VII, deferring for onward inspection to the United States, informing the Irish Immigration Service of any refusal of onward passage to the United States by the INS, and providing all relevant data relating to such refusal to that service.

(2) The immunity accorded under paragraph (1) may be waived by the Government of the United States.

(3) The Government of Ireland shall take all appropriate steps to protect the facilities used by the INS for the purposes of carrying out preinspection against intrusion or damage and to protect the official archives and documents maintained by INS at such facilities.

(4) US citizens who are permanent employees of the Government of the United States, assigned to INS duties in Ireland pursuant to this Agreement, shall enjoy such privileges as shall be agreed by both Governments by an exchange of notes.

Article X

(1) The cost of preinspection during the test period shall be borne as follows:

(a) the INS shall be responsible for the cost of posting necessary officers at Shannon Airport for a temporary tour of duty not exceeding four months;

(b) the competent airport authority shall be responsible for providing adequate and secure inspection facilities at Shannon Airport.

(2) The costs of preinspection continued after the test period shall be allocated in accordance with the following principles:

(a) the Government of the United States of America shall, pursuant to standard US regulations governing preclearance/preinspection, be responsible for the cost of the INS preinspection officers other than the additional costs of providing preinspection at the place of departure from Ireland compared with the cost of INS inspection upon arrival in the United States;

(b) in accordance with the provisions of Article VIII (4) (b) of this Agreement, the air carrier concerned shall be responsible for any costs, including where necessary accommodation and maintenance costs, arising from the removal to his point of embarkation or the country of which he is a national of any person refused passage onwards by the INS;

(c) except as provided in subparagraph (d) hereunder, any additional costs attributable to the operation of preinspection, including the provision of the necessary preinspection facilities, shall be the responsibility of the competent airport authority, but such costs may be recouped from the air carriers using preinspection;

(d) the US Public Health Service shall be responsible for any pre-diagnostic and diagnostic medical (including hospital) costs arising from the application of Article VI (5) of this Agreement; any post-diagnostic medical (including hospital) costs shall be the responsibility of the competent Irish health authority except that they may be recouped by that authority from the person concerned;

(e) any charges related to preinspection levied upon participating air carriers shall be assessed in a fair and reasonable manner.

Article XI

Either Government may at any time request consultations concerning the interpretation, application, or amendment of this Agreement. Such consultations shall begin within 60 days from the date the other Government receives the request.

Article XII

This Agreement shall enter into force upon signature. If within three months of the date of termination of the test period, both Governments have not notified each other pursuant to Article III that they wish preinspection to continue, this Agreement shall terminate at the end of that three month period. If, however, both Governments have agreed that preinspection shall recommence at a date mutually agreed, the Agreement shall continue in force indefinitely unless it is terminated by either Government giving twelve months notice thereof to the other Government. Such notice may however be withdrawn before the end of the twelve month period by agreement between the two Governments.