The High Court certified two questions for appeal to the Court of Appeal concerning the Minister’s duties when deciding certain immigration permission applications. The court found the questions involved points of law of exceptional public importance and that an appeal was desirable in the public interest. It did not decide the appeal or determine the answers to either question.
The application followed the High Court’s March 2015 judgment in Luximon v Minister for Justice, which quashed the Minister’s November 2012 refusal of a mother’s application to change her immigration permission from stamp 2 to stamp 4. That earlier judgment found that the Minister had failed to consider any constitutional or European Convention on Human Rights rights engaged by the decision, and had failed to publish criteria for applications by “timed-out” non-EEA students seeking stamp 4 permission.
The Minister sought certification of two questions: whether such rights must be considered when a person’s permission to remain has expired and the rights may also be considered during a later deportation process; and whether the Minister must publish criteria applicable to a timed-out student applying to change immigration status.
The applicants opposed certification. They argued that the law was not uncertain, the earlier judgment applied established principles, and the case was not a suitable test case because the court had excluded arguments about the statutory structure of section 4 of the Immigration Act 2004. They also submitted that an appeal would prolong the applicants’ uncertainty.
Justice Barr concluded that the questions raised genuine uncertainty and extended beyond the individual case. He referred to evidence submitted by a Department of Justice official stating that around 106,000 people held permission under section 4(1), including approximately 35,000 with student permissions, and that 25 judicial review applications involved the issue. Those figures were evidence considered by the court, not findings about the outcome of other cases.
The judge said the Court of Appeal would not be limited to the certified questions: an appeal would be against the High Court decision in its entirety, and the appellant would control its scope. The court therefore granted the certificate. The judgment records the two certified questions, with the second addressing whether criteria must be published for a person in the first applicant’s position. No Court of Appeal decision or outcome is given in this judgment.