The High Court has refused an asylum applicant’s request for a certificate allowing an appeal to the Court of Appeal over an earlier judicial review decision.
In a judgment delivered on 17 July 2017, Ms Justice O’Regan said the court’s role was limited to deciding whether to grant a certificate under section 5(6)(a) of the Illegal Immigrants (Trafficking) Act 2000, as amended. The applicant had sought a certificate to appeal on two proposed points concerning the 15-day time limit for pursuing an appeal before the Refugee Appeals Tribunal and the compatibility of section 16(2B)(a) of the 1986 Act with EU law, including the Charter of Fundamental Rights and the Procedures Directive.
The application followed an earlier judgment, delivered on 4 April 2017, refusing the applicant’s application for certiorari of a Refugee Appeals Tribunal decision made on 7 April 2016. The present judgment addressed only permission to appeal that decision; it did not reconsider the underlying judicial review.
The applicant submitted that the certification rules treated constitutional challenges less onerously than challenges based on EU law, contrary to EU principles of equivalence and effectiveness. She also argued that a certificate should be available under section 5(6)(b), relying on the asserted incorporation of EU law and the Charter into the Constitution. The judge said that argument did not arise from the April judgment and was outside the court’s limited role on this application.
The applicant also argued that the April decision conflicted with an earlier High Court judgment in Duba v Refugee Appeals Tribunal. The respondent said Duba had been distinguished. Justice O’Regan accepted that the cases had distinguishing features and concluded that they did not establish uncertainty in the law.
The court applied principles requiring a proposed appeal to raise a point of exceptional public importance, with genuine uncertainty that should be resolved for the benefit of future cases. The judge concluded that the proposed points were matters of public importance but lacked the special characteristics required to be exceptionally important. The application for leave to appeal was therefore refused.