The Supreme Court has dismissed an appeal by A.W.K. (Pakistan), holding that a ministerial review which left an earlier refusal of permission to remain unchanged fell within the statutory time limit for challenging that refusal.
The appeal concerned a decision made under section 49(7) of the International Protection Act 2015. The Court’s judgment, delivered by Mr Justice William McKechnie on 25 March 2020, addressed whether that review was covered by section 5 of the Illegal Immigrants (Trafficking) Act 2000, which requires specified immigration challenges to be brought by judicial review within 28 days of notification, subject to a possible extension by the High Court.
A.W.K., who was born in Pakistan in 1991 and arrived in Ireland in August 2015, applied for international protection in February 2017. An international protection officer rejected the application in July 2017, and the International Protection Appeals Tribunal rejected his appeal in October 2017. The Minister had already refused permission to remain in July 2017.
After the tribunal decision, A.W.K. sent further representations to the Minister. The Minister reviewed the refusal under section 49(7) and, in a decision dated 15 March 2018, saw no reason to change it. A deportation order was made on 8 May 2018.
In the High Court, A.W.K. sought to set aside the review decision and deportation order, and an order requiring the Minister to consider a further review request. The High Court held that the challenge to the review decision was subject to section 5’s time limit and was out of time. The Supreme Court appeal was permitted on the statutory construction issue.
A.W.K. argued that the 2000 Act expressly covered an initial refusal under section 49(4)(b), but did not mention a review under section 49(7). The Minister argued that the review formed part of the same decision-making process and that the original refusal remained the decision supporting the deportation order.
The Supreme Court concluded that, under section 49(8), the statutory rules governing an initial decision also applied to a review. It reasoned that a negative review left the original refusal in place; if the review granted permission, a deportation order could not follow. The Court therefore held that the refusal remaining after review was the original decision expressly covered by the 2000 Act.
The Court did not decide the parties’ competing arguments about whether the Interpretation Act 2005 applied to deportation or review decisions. It dismissed the appeal and affirmed the High Court’s decision on the sole issue allowed for further appeal. The judgment did not determine the merits of the Minister’s refusal of permission to remain.