The High Court refused the applicants’ request for a certificate that would allow them to appeal to the Supreme Court over the court’s earlier rejection of their challenge to a deportation order against M.E.
The application was made under section 5(3)(a) of the Illegal Immigrants (Trafficking) Act 2000. That provision allows an appeal only if the High Court certifies that its decision involves a point of law of exceptional public importance and that an appeal is desirable in the public interest.
The applicants asked the court to certify a question about how proportionality should be assessed in judicial review of a deportation decision affecting a non-EU parent of minor Irish citizens. They argued that the court should assess the impact on fundamental rights for itself, rather than require them to identify a specific flaw in the Minister’s reasoning or assessment.
The judgment explains that the original judicial review had been granted on one ground: whether deportation was disproportionate, having regard to M.E.’s conviction, and infringed the applicants’ constitutional and Convention rights. The court had already refused that challenge. In the certificate application, it said the applicants had advanced criticisms of the deportation decision, but had not discharged the burden of showing that it was unreasonable in the legal sense of being disproportionate.
The judge reviewed authorities including the Supreme Court decisions in Meadows and Donegan. He said judicial review is not an appeal or a fresh hearing on the merits, and that a court cannot replace the decision maker’s assessment with its own. Proportionality may be considered when reviewing reasonableness, but the applicant must show that the decision is fundamentally flawed.
The court distinguished this case from Lofinmakin, where a similar legal question had been certified in a different proceeding. Here, the judge said, the original ground of challenge identified a particular alleged error, and the proposed question did not arise from the court’s decision. He also found that the law was not uncertain and that the applicants had not established either part of the statutory test.
The court therefore refused to certify the point of law. This ruling concerned permission to appeal; it did not reverse or reopen the earlier refusal of the judicial review challenge.