The High Court has refused an application by an anonymised applicant for leave to appeal the dismissal of his judicial review proceedings concerning a deportation order.
In a judgment delivered on 14 November 2016, Mr Justice Richard Humphreys considered five proposed questions under section 5 of the Illegal Immigrants (Trafficking) Act 2000. The underlying judicial review had been dismissed in a separate judgment on 29 July 2016.
The applicant proposed asking whether a minister relying on prevention of disorder and crime must find that a proposed deportee has a present propensity to commit crime. The judge said the applicant had not shown why case law concerning deportation of EU nationals applied to non-EU nationals, or any uncertainty in the law on that point.
A second question concerned whether deportation likely to separate spouses or parents from Irish children required compelling justification from the Minister, or compelling circumstances from the proposed deportee. The judge said he had assumed in the applicant’s favour in the earlier judgment that compelling justification was required. Since answering the question as the applicant sought would not change the result, it was hypothetical and unsuitable for certification.
The court also rejected a proposed question about whether UK immigration rules should be presumed compatible with the European Convention on Human Rights when considered by an Irish court. The judge said his earlier decision had not depended on such a finding.
On the applicant’s proposed question about reliance on a person maintaining innocence of a criminal conviction, the judge referred to the earlier judgment’s conclusion that failure to accept responsibility could be relevant to rehabilitation and future risk. He said no Irish authority had been cited showing that this was irrelevant, and found no legal uncertainty requiring resolution by the Court of Appeal.
The final question concerned whether the Minister should, so far as possible, avoid imposing the consequences of a parent’s wrongdoing on minor children. The judge distinguished cases cited by the applicant, saying they concerned the courts’ equitable or discretionary jurisdiction, rather than the Minister’s statutory role in deciding whether to make a deportation order. He said there was no principle preventing the Minister from making an order that adversely affected children who had done no wrong.
The respondent’s counsel submitted that the applicant had rerun arguments that failed at the hearing without demonstrating legal uncertainty. The judge accepted that submission and ordered that leave to appeal be refused. The ruling concerned permission to appeal the earlier dismissal; it did not rehear or reverse that substantive decision.