The High Court has refused applications by the State and an applicant for leave to appeal in two judicial review cases concerning deportation and medical circumstances.
In Azeem v Minister for Justice and Equality (No. 1), the court had set aside a deportation order in November 2017, finding that exceptional circumstances engaged Article 8 of the European Convention on Human Rights. The judge cited four matters: confusion between Articles 3 and 8 in the decision; insufficient consideration of health issues below the Article 3 threshold; an inaccurate case-law summary that the State could not explain; and the handling of the applicants’ exceptionally severe medical difficulties.
In V.D. v Minister for Justice and Equality (No. 1), the court upheld the deportation order, finding that the medical difficulties did not require an Article 8 proportionality analysis. The applicant sought leave to appeal that decision, while the State sought leave to appeal the Azeem decision.
In this judgment, delivered on 26 February 2018, Mr Justice Richard Humphreys said deportation would breach Article 8 for unsettled migrants only in very exceptional circumstances. He said that can include effects on physical health even when the Article 3 threshold is not met, as well as effects on private or family life. Applicants must establish exceptional circumstances on the balance of probabilities. A difference between Irish and overseas healthcare, even a significant one, is not enough by itself, the judge said.
The judge rejected the proposed appeal questions in V.D. He said the circumstances in which Article 8 would apply to medical treatment had already been answered: only in very exceptional circumstances. He also said a prior finding by the International Protection Appeals Tribunal about a reasonable chance of homelessness or lack of appropriate medical care was not binding at the deportation stage, and the question was too fact-specific to qualify as a point of law of exceptional public importance.
On the proposed question about the Minister’s reasoning when rejecting humanitarian considerations, the judge said existing authority addressed the issue. He said the Minister’s discretion under section 3 of the Immigration Act 1999 was reviewable only where there was evidence that a person was denied the opportunity to make representations, that representations were not considered, or that the factors in section 3(6) were not considered.
The judge said exceptional circumstances resist precise abstract definition and can be clarified through decisions on individual cases. He concluded that alleging he had misapplied established law to V.D.’s facts did not provide a basis for leave to appeal. The court refused both applications. The judgment addressed leave to appeal; it did not reconsider the underlying deportation decisions.