The High Court dismissed a Malaysian family’s challenge to the refusal to revoke deportation orders, ruling that the judicial review could not be used to reopen issues that could have been raised before the original orders were made.
Mr Justice Richard Humphreys delivered the judgment on 10 May 2018. The applicants were two adults and their two minor children, who were born in Ireland. The parents had held student permissions for about a year, which expired in February 2012. Deportation orders were made against the family on 29 July 2016 and were not challenged.
The family later applied to have the orders revoked under section 3(11) of the Immigration Act 1999. The Minister refused those applications in July 2017. The High Court had granted leave for judicial review of those refusals in October 2017.
The judge said a challenge to a refusal under section 3(11) generally had to rely on a point that could not have been raised at the earlier stage when the deportation order was considered. He found that the main jurisdictional argument was an attempt to attack the original orders and had not been put to the Minister in the revocation applications.
The judgment addressed the family’s grounds in turn. Their lawyer had withdrawn the argument concerning a scheme for long-term unlawful residence. The judge rejected the remaining claims, including that the Minister had treated the family unfairly compared with relatives, acted irrationally, breached constitutional or European Convention rights, failed to consider the children’s interests, or improperly relied on the original decision. He said the Minister had considered the submissions and was not required to revisit every matter considered at the deportation stage.
The children applied for certificates of nationality after the refusal decision, claiming they were not Malaysian citizens and were Irish citizens by operation of law. The judge said that issue could not provide a basis to quash a decision made before it was raised with the Minister. He identified a nationality certificate application, potentially followed by a further revocation application, as the appropriate procedure.
The respondents had undertaken not to enforce the deportation orders while the nationality applications were being decided, or for 14 days after notification. The judgment recorded that, if the applications succeeded, the children’s orders would be revoked and the parents’ orders would not be enforced while their position under the EU ruling in Ruiz Zambrano was considered, provided they applied within 28 days.
In a postscript, the judge said that during an application for leave to appeal, the applicants disclosed to their lawyers that the children had in fact been Malaysian citizens all along. The leave application was withdrawn. The respondents were consequently released from their undertaking.