The High Court has dismissed a judicial review challenge to deportation orders made against four applicants, finding that their awareness of an alleged flaw in an International Protection Appeals Tribunal hearing—and their decision to wait for the appeal outcome before raising it—amounted to acquiescence.
Mr Justice Richard Humphreys said the applicants’ lawyers learned before the tribunal’s decision that evidence at the hearing had allegedly not been given on oath or affirmation. They took no action at that point, hoping for a favourable decision. After the appeals were rejected, the applicants sought a rehearing, which the tribunal refused, saying it was functus officio.
The applicants then challenged the deportation orders and decisions connected with permission to remain. The judge said their case depended on the alleged flaw in the tribunal proceedings. An applicant could not wait to see whether a decision was favourable and then rely on a known procedural problem after receiving an adverse result, he said, citing the principle against acquiescence.
The court also addressed timing. The applicants had not made a review application within the five-day period, including an exceptional extension granted by the Minister. The judicial review was filed after the deportation decision had been received, and no extension of the judicial review time limit had been sought. The judge said the challenge was time-barred in any event and could not avoid the time limit for challenging the original tribunal process by attacking later decisions based on it.
A separate objection alleged non-compliance with High Court Practice Direction HC81, including failures to exhibit relevant material and make full disclosure at the ex parte stage. The judge made no formal finding on that objection because the case failed on other grounds.
The judgment also said the tribunal had no authority to set aside a completed decision and order a rehearing. On oath-taking, the judge said an oath should generally be administered, with affirmation in limited circumstances, and evidence taken without either only in circumstances covered by the tribunal chairperson’s guidance.
At the hearing, the court struck out the proceedings against the second- and third-named applicants after their counsel said she had no instructions from them. The final order dismissed the proceedings.