The High Court has dismissed an application by Vikram Sharma Rughoonauth and Rashma Rughoonauth to reopen an earlier decision refusing them leave to seek judicial review of deportation orders.
Mr Justice Richard Humphreys delivered the judgment on 24 April 2017. He said he had refused the application ex tempore on 3 April, and gave formal reasons in the judgment.
The applicants argued that subsequent Court of Appeal rulings in Luximon and Balchand, along with a later High Court decision in W.S., warranted reconsidering the earlier refusal. The Minister for Justice and Equality opposed the application, submitting that the court lacked jurisdiction to reopen the decision before its order was perfected and that the applicants should instead seek leave to appeal.
The judge considered that the court could review a decision before its order was perfected in these unusual circumstances, where a party argued that a recent appellate decision had materially developed the law. He stressed that accepting jurisdiction did not mean the applicants’ argument succeeded.
He found that the Minister had considered the applicants’ rights to respect for private life under Article 8 of the European Convention on Human Rights, including whether deportation would have consequences serious enough to engage the provision. He distinguished Luximon and Balchand on the basis that the rights had not been considered in those cases. The later decisions did not show an error in the original ruling, he concluded.
The judge also rejected the argument that temporary student permissions made the applicants settled migrants. He said they had been present either unlawfully or on time-limited student permissions, and that it was open to the Minister to conclude the effects of removal were not serious enough to require an Article 8(2) proportionality assessment. He said a breach of Article 8 in the circumstances of non-settled migrants would arise only exceptionally.
The court dismissed the application to set aside the refusal of leave. It directed that the matter be listed for any application for leave to appeal and adjourned costs until the outcome of any such further application. The judgment records that no injunction was sought. It did not determine an application for leave to appeal.