The High Court refused Deandra Gayle leave to appeal to the Court of Appeal against its earlier refusal to quash her deportation order. It also rejected her request for a declaration that a statutory restriction on appeals was unconstitutional.
In a judgment delivered on 7 December 2017, Mr Justice Richard Humphreys considered both the appeal application and the constitutional challenge. The proceedings followed an earlier ruling in which the court declined to order Gayle’s release under Article 40 of the Constitution and refused the judicial review relief then sought.
Gayle’s counsel argued that section 5(6)(a) of the Illegal Immigrants (Trafficking) Act 2000, as amended, should not prevent an appeal in a judicial review linked to an Article 40 application. The judge held that the section applied to the challenge to the deportation order. Relying on the Supreme Court’s earlier decision on the legislation, he concluded that an unsuccessful judicial review, or failure to bring one within the permitted time, could affect an Article 40 application where the deportation order remained unchallenged.
The judge accepted that the applicant could challenge the amended provision, but rejected the challenge on its merits. He said the Supreme Court’s earlier decision had upheld the statutory scheme on the basis that judicial review was the exclusive means of challenging decisions covered by the section. The court therefore refused the requested declaration that section 5(6)(a) was unconstitutional.
The appeal application raised questions about whether a date to leave the State had to appear in the deportation order itself or could be specified in an accompanying notice, and whether an earlier decision had determined the validity of the relevant law. The judge considered the first issue already determined in substance by the Supreme Court and described it as not affecting rights. He said the second question did not reflect the basis of his earlier decision. A further proposed question about the criteria for appeal certificates was, in his view, ancillary and would not itself lead to the deportation order being quashed or Gayle being released.
The judge also cited finality and existing decisions as reasons against granting leave. His operative order was to refuse leave to appeal to the Court of Appeal. In a postscript, he noted that the Supreme Court had granted leave in another case raising a similar issue, and said any question of a further appeal or its timing was for that court.