Aviation (Preclearance) Act 2009
Acts of the Oireachtas
Source: Acts of the Oireachtas

num: 1
paragraphs: — (1) In this Act—
num: 2
paragraphs: — (1) The Minister may, by regulations, designate, by reference to a map or otherwise, a place or places within an airport in the State as an area (“ preclearance area”) or areas within which preclearance may be carried out.
(2) Subject to subsection (3), regulations made under this section may provide that—
(a) a part of a preclearance area may cease to be operational when no aircraft at that part of the preclearance area is, for the time being, subject to preclearance, or
(b) a building, or a portion of a building, in a preclearance area may cease to be operational when that building, or that portion of the building, is, for the time being, not being used for the purpose of preclearance.
(3) Where regulations are made to which subsection (2) applies, the airport authority, shall, during periods when that part of the preclearance area or building (or portion thereof) is operational, place signage in prominent positions, or otherwise indicate that preclearance is, for the time being, being carried out in that part of the preclearance area or building (or portion thereof), as the case may be.
(4) Where the Minister designates a preclearance area under subsection (1) and that area includes a building consisting of more than one floor, the Minister may designate—
(a) the entire building,
(b) an entire floor, or
(c) a portion of a floor.
(5) Before making regulations under this section, the Minister shall consult with the airport authority, with the Minister for Justice, Equality and Law Reform, and with the Revenue Commissioners.
(6) In this section—
“floor” includes a basement and any connections between floors concerned;
“map” includes a plan of a building;
“operational” means operational for the purpose of preclearance.
num: 3
paragraphs: — (1) A traveller who enters a preclearance area shall—
(a) present himself or herself without delay at the preclearance facility for the purpose of applying for permission to enter,
(b) make an accurate written declaration of all goods required to be declared in accordance with instructions issued by or on behalf of the Minister and made available to the traveller in the preclearance area, and
(c) comply with any requirement of an Irish law enforcement officer or a preclearance officer under section 7 (2).
(2) A traveller who contravenes paragraph (a), (b) or (c) of subsection (1) shall be guilty of an offence.
(3) Where a traveller is accused of an offence under subsection (2) in respect of subsection (1)(b), it shall be a good defence to show that he or she had reasonable grounds for believing that his or her declaration was duly made in accordance with that provision.
(4) Where section 5 (5)(a) applies, no proceedings shall be instituted against a traveller under subsection (2) in respect of subsection (1)(b) in relation to any particular goods.
num: 4
paragraphs: — A traveller may, at any time—
(a) withdraw his or her application for permission to enter, and
(b) subject to subsections (1)(e) and (3) of section 5 , and section 6 , leave the preclearance area.
num: 5
paragraphs: — (1) In addition to exercising functions under section 7 (2), a preclearance officer may—
(a) take and process applications for permission to enter,
(b) 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,
(c) ask questions relating to the traveller’s eligibility to enter the United States,
(d) with the consent of the traveller and subject to subsection (2), search such traveller and his or her goods,
(e) without warrant, where he or she reasonably suspects that a person poses an immediate threat (including the possession of a weapon) to the safety of officers or other persons in the preclearance area, search such person and his or her goods and may detain the person for such time as is reasonably necessary for carrying out the search,
(f) examine any area of the aircraft, including any goods on, or to be loaded onto, it,
(g) grant permission to enter to any traveller or aircraft where such traveller or aircraft is found to be eligible for entry into the United States,
(h) review or revoke permission to enter granted under paragraph (g),
(i) refuse permission to enter to any traveller or aircraft where such traveller or aircraft is found to be ineligible for entry into the United States,
(j) notwithstanding the fact that permission to enter has not been granted to any traveller, permit such traveller to board the aircraft for the purpose of postclearance on arrival in the United States, and
(k) request the assistance of an Irish law enforcement officer with respect to the matters referred to in paragraphs (e) and (f) of this subsection and paragraphs (a) and (b) of section 6 (1).
(2) Where subsection (1)(d) applies, the preclearance officer conducting a search of a person shall—
(a) be of the same sex as the person being searched, and
(b) have due respect for the person being searched.
(3) Where a preclearance officer reasonably suspects that—
(a) a person has—
(i) committed an indictable offence under the law of the State, or
(ii) obstructed or attempted to obstruct a preclearance officer in the performance of his or her functions under this Act,
or
(b) a private aircraft is conveying goods in contravention of the law of the State,
the preclearance officer—
(I) may, without warrant, detain that person or private aircraft, and
(II) where such person or aircraft is detained, shall forthwith deliver that person or aircraft into the custody of an Irish law enforcement officer to be dealt with in accordance with law.
(4) Where a traveller fails to comply with section 3 (1)(b), the preclearance officer may detain such goods and, where he or she does so, shall forthwith deliver them to an Irish law enforcement officer for the purposes of sections 8 to 10 .
(5) Notwithstanding subsection (4), the preclearance officer may, as a condition of granting permission to enter, require a traveller to—
(a) pay him or her, or another preclearance officer identified by him or her, a sum of money equivalent to the sum of money that would be payable by that traveller on postclearance in respect of any particular goods, or
(b) surrender those goods.
(6) (a) Subject to paragraph (b), a preclearance officer may perform the functions conferred by this Act solely within the preclearance area.
(b) Where regulations are made to which section 2 (2) applies, a preclearance officer may perform the functions conferred solely in a place referred to in that subsection that is, for the time being, operational for the purpose of preclearance.
(7) Nothing in this Act shall be construed as permitting a preclearance officer to be in possession of a weapon in the performance of his or her functions under this Act.
num: 6
paragraphs: — (1) An Irish law enforcement officer who reasonably suspects that, in the preclearance area—
(a) a traveller has failed to comply with section 3 (1)(b), or
(b) any person (whether or not a traveller) is in possession of any goods (including a weapon) the possession of, or the export of which, is controlled or prohibited in the State, or otherwise poses a threat to the safety of officers or other persons in the preclearance area,
may, without warrant—
(i) search the person and, if he or she considers it necessary for that purpose, detain the person for such time as is reasonably necessary for carrying out the search, provided that—
(I) except where the threat posed is immediate—
(A) the officer conducting a search of a person being detained shall ensure, so far as practicable, that the person understands the reason for the search and that it is conducted with due respect for the person being searched,
(B) a person being detained shall not be searched by an officer or person of the opposite sex, and
(II) where a search of a person being detained involves removal of clothing, other than headgear or a coat, jacket, glove or similar article of clothing, no officer or person of the opposite sex shall be present, unless either that person is a medical practitioner designated by the officer conducting the search, or the officer considers that the presence of that person is necessary for the protection of the person carrying out the search, or is otherwise expedient in the interests of the person being searched, and
(ii) examine (by opening or otherwise), seize and detain anything found in the course of a search under this section that appears to him or her to be something that might be required as evidence in proceedings for an offence.
(2) Where an Irish law enforcement officer decides to search a person under this section, he or she may require the person to accompany him or her to such other place at the airport as may be specified by the officer for the purpose of being so searched at that other place.
(3) Where there is a failure to comply with a requirement under subsection (2), the Irish law enforcement officer concerned may arrest without warrant the person of whom the requirement was made.
(4) Where a person fails to comply with a requirement under this section, he or she shall be guilty of an offence.
(5) A requirement mentioned in subsection (2) shall remain in force until the search in relation to which it is made is completed, but such search shall be carried out as soon as is practicable.
(6) Nothing in this section shall operate to prejudice any power to search, or to seize or detain any goods, which may be exercised by an Irish law enforcement officer apart from this section.
(7) An Irish law enforcement officer shall, where requested under section 5 (1)(k), assist a preclearance officer.
num: 7
paragraphs: — (1) Persons other than—
(a) preclearance officers and other personnel authorised by the United States,
(b) travellers,
(c) Irish law enforcement officers, and
(d) persons authorised by the airport authority who require entry for a purpose relating to their employment,
shall not enter—
(i) a preclearance area, or
(ii) where regulations are made to which section 2 (2) applies, a place referred to in that subsection that is, for the time being, operational for the purpose of preclearance.
(2) An Irish law enforcement officer or a preclearance officer may, in the interest of security or the proper functioning of the preclearance area, do any of the following in the preclearance area:
(a) require any person to:
(i) give his or her name and to produce evidence of his or her identity;
(ii) state the purpose of his or her being in the preclearance area;
(iii) account for any baggage or other property which may be in his or her possession;
(iv) return to the preclearance facility;
(b) require any of the following persons to leave the preclearance area:
(i) a person who fails to give his or her name or to produce evidence of his or her identity;
(ii) a person who fails to state the purpose of his or her being in the preclearance area;
(iii) a person who fails to account for any baggage or other property in his or her possession;
(iv) a person who gives a name or states a purpose for his or her being in the preclearance area which is known, or is reasonably suspected, by the preclearance officer or the Irish law enforcement officer to be false;
(v) a person whom he or she knows not to have, or whom he or she reasonably suspects of not having, a lawful reason for being in the preclearance area.
(3) A person who contravenes subsection (1) or fails to comply with a requirement under subsection (2) shall be guilty of an offence.
(4) A person who obstructs or impedes a preclearance officer or an Irish law enforcement officer in the exercise of any functions conferred by this Act shall be guilty of an offence.
(5) A person shall not be convicted under—
(a) subsection (3) in respect of subsection (2) of this section, and
(b) section 3 (2) in respect of section 3 (1)(c),
in respect of the same act.
num: 8
paragraphs: — (1) Without prejudice to any other applicable law, any goods that are—
(a) not declared, or
(b) the subject of a false declaration,
under section 3 (1)(b) may be seized as liable to forfeiture by an Irish law enforcement officer.
(2) Where goods are seized under subsection (1), the person affected shall be furnished with a notice in writing (“notice of seizure”) specifying—
(a) the goods seized,
(b) the reasons for the seizure, and
(c) the procedure for making a claim against the seizure.
(3) A person whose goods have been seized under subsection (1) who claims that such goods are not liable to forfeiture (“claimant”), shall, within one month of the seizure, give notice in writing of such claim (“notice of claim”) to the Revenue Commissioners.
(4) A notice of claim shall specify the name and address of the claimant and, in the case of a claimant who is outside the State, the name and address of a solicitor in the State who is authorised to accept service of any document required to be served on the claimant and to act on behalf of the claimant.
(5) If, on the expiration of the period referred to in subsection (3), no notice of claim has been given, the goods shall be deemed to have been duly condemned as forfeited.
(6) Where goods are, under this Act, condemned or deemed to have been condemned as forfeited, the forfeiture shall have effect as from the date of seizure.
num: 9
paragraphs: — (1) Where a notice of claim has been duly given, the Revenue Commissioners may, as they think fit and notwithstanding that the goods seized have not yet been condemned—
(a) deliver them up to the claimant on payment to the Revenue Commissioners of such sum as they think proper, being a sum not exceeding that which, in their opinion, represents the value of the goods, or
(b) if the goods seized are in the opinion of the Revenue Commissioners of a perishable or hazardous nature, sell or destroy them.
(2) If, where any goods are delivered up, sold or destroyed under this section, it is subsequently held by the court in proceedings that the goods were not liable to forfeiture at the time of seizure, the Revenue Commissioners shall on demand tender to such claimant—
(a) an amount equal to any sum paid by the claimant under subsection (1)(a),
(b) if they have sold the goods, an amount equal to the proceeds of sale, or
(c) if they have destroyed the goods, an amount equal to their value at the time of seizure.
(3) If the claimant accepts any amount tendered under subsection (2), such claimant shall not be entitled to maintain proceedings in any court on account of the seizure, sale or destruction of the goods concerned.
(4) The Revenue Commissioners may, in their discretion, restore any goods seized under this Act.
num: 10
paragraphs: — (1) Subject to section 8 (6), where a notice of claim in respect of any goods is given, the Revenue Commissioners shall take proceedings for their condemnation by the court, and—
(a) where the court finds that the goods were not at the time of seizure duly declared, the court shall condemn them as forfeited and,
(b) in any other case, the court shall order their release to the claimant.
(2) Goods seized under this Act shall, after condemnation of such goods, be forfeited to the Revenue Commissioners.
(3) Proceedings under subsection (1) shall be civil proceedings and may be instituted either in the High Court or (if, in the opinion of the Revenue Commissioners, the value of the goods does not exceed the amount that is the monetary limitation on the jurisdiction of the District Court) the District Court.
(4) In any such proceedings the claimant or his or her solicitor shall state on oath that the goods seized were, or were to the best of his or her knowledge and belief, the property of the claimant at the time of the seizure.
(5) Where proceedings have been instituted or continued in the name of an Irish law enforcement officer who has ceased for any reason to be such an officer, or being such officer is absent at any time during such proceedings, then such proceedings may be continued in the name of any other officer, or of the officer so absent, as appropriate in the circumstances.
(6) In any proceedings under this section, if judgement is given for the claimant, no Irish law enforcement officer or other person who made or assisted in making the seizure shall be liable to any subsequent civil or criminal proceedings on account of the seizure of the goods, provided that the court certifies that there was probable cause for making such seizure.
(7) In any civil or criminal proceedings against any Irish law enforcement officer or other person on account of the seizure under this Act of any goods, where—
(a) judgement is given against that officer or other person, and
(b) the court certifies that there was probable cause for such seizure,
the claimant or other person shall not be entitled to—
(i) any damages, besides the goods seized or the value of such goods, or
(ii) the costs of the proceedings,
and the Irish law enforcement officer or other person shall not be liable for any punishment or penalty.
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paragraphs: — (1) Where, on in-transit preclearance, a traveller is refused permission to enter, the air carrier or the aircraft commander concerned shall be responsible for any costs (including, where necessary, the traveller’s accommodation and maintenance costs) arising from the removal of the traveller and his or her goods—
(a) to the state or other territory in which the traveller boarded the aircraft, or
(b) where the traveller is not a citizen of that state or a resident of that state or territory, to the state or territory of which the traveller is a citizen (in the case of a state) or a resident (in the case of a state or a territory).
(2) Nothing in subsection (1) shall prevent the air carrier or the aircraft commander from recouping from the traveller in any court of competent jurisdiction the costs expended pursuant to that subsection.
num: 12
paragraphs: — (1) Subject to subsection (2), a person who lands at an airport in the State for the purposes of in-transit preclearance, shall not, for the purposes of the Aliens Act 1935 and the Immigration Act 2004 , be deemed to have arrived at a frontier of the State.
(2) A person who—
(a) lands at an airport in the State for the purposes of in-transit preclearance, and
(b) is refused preclearance to travel onwards to the United States,
shall be deemed, for the purposes of the Aliens Act 1935 and the Immigration Act 2004 , to have arrived at a frontier of the State.
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paragraphs: — (1) A preclearance officer who is—
(a) a national of the United States, and
(b) assigned and posted to the State,
shall not be amenable to the jurisdiction of the judicial or administrative authorities of the State in respect of acts performed by him or her in the exercise of his or her functions under this Act and shall, together with his or her dependants, enjoy such privileges as are agreed by an exchange of diplomatic notes.
(2) The immunity accorded under subsection (1) may be waived in writing by the United States.
(3) The immunity and privileges referred to in subsection (1) shall not be accorded to a preclearance officer who is permanently resident in the State.
(4) Without prejudice to any other power of a Minister of the Government, where the Minister considers that a preclearance officer has abused his or her position, the Minister may, after consultation with the United States, require—
(a) in the case of a preclearance officer referred to in subsection (1), the departure from the State of that preclearance officer, or
(b) in the case of a preclearance officer who is permanently resident in the State, that he or she cease to exercise his or her functions under this Act.
(5) All documents (including information kept in a non-legible form, whether stored electronically or otherwise, that is capable by any means of being reproduced in a legible form) of the United States located in the preclearance area shall be regarded as archives kept at a consulate within the meaning of the Consular Conventions Act 1954 .
(6) An action shall lie against the State by a person who is precluded from taking an action by virtue of subsection (1).
num: 14
paragraphs: — Without prejudice to any other fee or charge that an airport authority may duly impose, an airport authority may charge a fee to air carriers and aircraft commanders availing of preclearance.
num: 15
paragraphs: — 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.
num: 16
paragraphs: — (1) The Minister may make regulations—
(a) for any purpose in relation to which regulations are provided for in this Act, and
(b) generally for the purpose of giving effect to this Act and to the Agreement,
and such regulations may contain such incidental, supplementary and consequential provisions as appear to the Minister to be necessary or expedient for the purposes of the regulations.
(2) Without prejudice to the generality of subsection (1), the Minister may make regulations for ensuring the integrity, security and proper functioning of—
(a) preclearance areas generally,
(b) a preclearance area at a particular airport, or
(c) a part of a preclearance area at a particular airport.
(3) Every regulation made under this Act shall be laid by the Minister before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the regulation is passed by either such House within the next 21 days on which that House sits after the regulation is laid before it, the regulation shall be annulled accordingly but without prejudice to the validity of anything previously done thereunder.
num: 17
paragraphs: — (1) A person guilty of an offence under this Act (other than an offence to which subsection (2) relates) shall be liable on summary conviction to a fine not exceeding €5,000, or imprisonment for a term not exceeding 6 months, or both.
(2) A person who assaults an Irish law enforcement officer (other than a member of the Garda SÃ­ochÃ¡na) or a preclearance officer in the performance of his or her functions shall be guilty of an offence and shall be liable—
(a) on summary conviction, to a fine not exceeding €5,000, or imprisonment for a term not exceeding 6 months, or both, or
(b) on conviction on indictment, to a fine not exceeding €25,000, or imprisonment for a term not exceeding 5 years, or both.
num: 18
paragraphs: — Where an offence under this Act is committed by a body corporate and is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, any director, manager, secretary or other officer of such body corporate or a person who was purporting to act in any such capacity, that officer or person shall be guilty of an offence and shall be liable to be proceeded against and punished as if he or she were guilty of the first-mentioned offence.
num: 19
paragraphs: — The Air Navigation and Transport (Preinspection) Act 1986 is repealed.
num: 20
paragraphs: — The Third Schedule to the Freedom of Information Act 1997 is amended in Part I by inserting the following at the end of that Part:
“
1998, No. 24
Air Navigation and Transport (Amendment) Act 1998
Section 36
”.
num: 21
paragraphs: — (1) This Act may be cited as the Aviation (Preclearance) Act 2009.
(2) This Act shall come into operation on such day or days as the Minister may appoint by order or orders either generally or with reference to any particular purpose (including a particular airport, or part of an airport) or provision and different days may be so appointed for different purposes or different provisions.