The High Court has refused an application by four anonymised applicants for a certificate that would have allowed them to appeal to the Supreme Court over deportation orders and non-refoulement.
In a judgment delivered on 14 March 2014, Mr Justice McDermott said the proposed question did not arise from the court’s earlier decision in the case. He also found that the issue was not one of exceptional public importance and that an appeal was not desirable in the public interest in the circumstances.
The court had previously refused to quash deportation orders made on 27 September 2011. The applicants were deported after an interlocutory injunction to stop their removal was refused on 13 December 2011. In its earlier judgment, the court held that the Carltona principle applied to the assessment of non-refoulement and that the orders were lawful even though the Minister for Justice and Equality had not made them personally.
The applicants sought certification under section 5(3)(a) of the Illegal Immigrants (Trafficking) Act 2000. Their proposed question concerned whether officials of differing seniority and qualifications could assess non-refoulement risks on an ad hoc basis without a published policy addressing risks in particular third countries and claimant categories.
The judge said the applicants had made clear they were not arguing that the Minister had to sign a particular document. Their concern was whether an official’s ad hoc decision, without a country-specific policy, could meet the Minister’s legal responsibilities.
However, leave to seek judicial review had been granted only on the question of whether the Minister personally had to consider if deportation would breach non-refoulement obligations. The judge said no leave had been sought or granted to challenge the assessment system or its procedures. The proposed certification issue had been discussed at the hearing but was not part of the court’s decision.
The judgment said non-refoulement assessments must consider each person’s circumstances and the material available about the proposed country of return, in accordance with fair procedures. The court refused the certificate; it did not reconsider or overturn its earlier decision upholding the deportation orders.