The High Court refused an application for a certificate to appeal its earlier judgment in a judicial review case concerning a deportation order. The application followed the court’s judgment of 1 October 2010; Mr Justice Cooke delivered this ruling on 28 October 2010.
The applicants sought permission under section 5(3)(a) of the Illegal Immigrants (Trafficking) Act. The court considered two proposed points of law: whether an admitted factual error could be treated as immaterial at the leave stage of judicial review, and whether a “substantial ground” for leave must be capable of a definitive answer at that stage.
After the earlier judgment, Mr O. voluntarily returned to Nigeria. His counsel said this meant the State no longer needed formally to execute the deportation order. The court accepted that the order could still affect whether Mr O. could re-enter the State unless it was quashed or revoked, and said he had standing to pursue an appeal. The application therefore turned on whether the judgment involved a point of law of exceptional public importance and whether an appeal would be desirable in the public interest.
On the first proposed point, the court said the earlier judgment had treated a factual mistake in a note explaining the reasons for the deportation order as insufficiently material to undermine the decision’s legal basis. It said the principle that only a material factual error can invalidate an administrative or quasi-judicial decision was not new law. Even where human or constitutional rights are involved, the court said, the error must be material to the issue the decision-maker had to decide.
On the second point, the court said its earlier judgment had applied the “substantial ground” concept in the statutory context rather than changed the test. A ground that appears reasonable, arguable and weighty may still be answerable after full argument at a leave hearing, the judge said. The ruling described the earlier judgment as, at most, a gloss on the test, limited to a specific aspect of judicial review and statutory context.
The court concluded that neither proposed point raised legal uncertainty of exceptional public importance warranting an appeal in the public interest. It refused the certificate. This ruling decided only the application for an appeal certificate; it did not set aside or revoke the deportation order.