The High Court has allowed two children and their mother to add a constitutional challenge to judicial review rules in proceedings concerning deportation orders. It refused their separate request to rely on the EU Charter of Fundamental Rights.
The applicants are anonymised in the judgment. The first applicant is an Irish citizen born in 2003; the second and third applicants are Nigerian nationals, and the first and second are the third applicant’s children. The Minister for Justice made separate deportation orders concerning the second and third applicants in June 2009. The orders’ validity is the central issue in the underlying judicial review proceedings.
The applicants had argued that judicial review did not provide an effective remedy under Article 13 of the European Convention on Human Rights. They said the court should be able to examine the merits of the Minister’s decisions and consider evidence beyond what was before the Minister. They sought a declaration that the relevant common law rules were incompatible with the Convention.
Justice Hogan held that the court could not consider such a declaration under section 5(1) of the European Convention on Human Rights Act 2003 unless no other adequate and available legal remedy remained. In his view, the applicants could first challenge the constitutionality of the common law judicial review rules. The judgment says a declaration of incompatibility would not itself invalidate the rules or the deportation orders.
The applicants sought permission to amend their pleadings to add that constitutional challenge. Although the application came well after the proceedings began and could prejudice the respondents, the judge allowed it. He considered the proposed ground to amplify the applicants’ existing argument about the adequacy of judicial review, and said the amendment was needed because of the jurisdictional issue he had identified under the 2003 Act.
The court refused the proposed amendment based on Article 24 of the EU Charter, which the applicants sought to use to argue for a derivative right of residence for the mother while the first applicant was a minor. The judge noted that the Charter applies to Member States when they are implementing Union law, and said the applicants had not previously raised an EU law or Charter argument. He concluded that the special circumstances supporting the constitutional amendment did not apply to the Charter application.
The ruling concerned amendments to the pleadings. It did not determine the validity of the deportation orders or the merits of the proposed constitutional challenge.