The High Court ordered the Minister for Justice and Equality to provide reasons for a three-year exclusion period imposed on an applicant, and to state whether those were the Minister’s reasons when the order was made. It adjourned the remaining challenge to the exclusion order to a date to be fixed; it did not quash that order in this judgment.
The ruling, delivered by Mr Justice Richard Humphreys on 1 October 2018, concerned the remedy after an earlier judgment found that the Minister had failed to give reasons for the exclusion order. In the earlier decision, the court dismissed the judicial review challenge to removal and exclusion orders except for the complaint about the missing reasons. The challenge to the accompanying removal order had been dismissed and was not in issue at this stage.
The applicants argued that the exclusion order should be quashed, relying on the importance of reasons to fair procedures and on authorities concerning statutory duties to give reasons. The Minister opposed that remedy. The judge considered whether to quash the order or instead require reasons and adjourn the challenge while those reasons were provided.
Justice Humphreys held that the court had discretion to choose a proportionate remedy. He said that, in the circumstances, the balance of justice favoured requiring reasons and adjourning the challenge rather than quashing the order immediately. He took account of the fact that the remaining complaint concerned only the absence of reasons, and that the validity of the removal order was no longer at issue. He also noted that the statutory scheme did not require reasons for the duration of the exclusion period.
The judge required the Minister to explain the three-year period and say whether the reasons were held at the time the exclusion order was made, addressing the risk that reasons might be created retrospectively. The court also allowed the applicant an opportunity to ask the Minister to review the matter on the Minister’s own initiative, without deciding legal questions about whether that procedure could be invoked by the applicant.
The application for certiorari of the exclusion order on the missing-reasons ground remains adjourned. The court said it would settle directions with counsel on the timetable and on any request for the Minister to exercise the review power under the 2015 regulations.