The High Court has refused the applicants leave to appeal after rejecting their challenge to immigration decisions concerning a child born in Ireland.
In a judgment delivered on 11 February 2019, Mr Justice Richard Humphreys said the proposed appeal sought to recast the case around a legal argument that had not been pleaded or made at the original hearing.
The first applicant, a minor suing through her father and next friend, had sought judicial review of what was described as a decision not to consider an application for permission to remain under section 4 of the Immigration Act 2004, and of a proposal to deport her. In an earlier judgment, the court rejected that application.
The applicants proposed asking whether the Minister for Justice and Equality had power to process a residence application made on the child’s behalf directly to the Minister, relying on section 4 and the principles in an earlier case. The judge said the Supreme Court had clarified that section 4 principally concerns immigration officers’ decisions at the point of entry to the State.
He said the case originally advanced was that the Minister had failed to consider an application under section 4. The proposed appeal instead asked whether the Minister had an independent executive discretion to process it. That was not the argument pleaded, the judge said, and the respondent had not been instructed to defend such a different case.
A second proposed question concerned whether any such power should be exercised before a deportation proposal was issued. The judge said it did not arise given his conclusion on the first question. He also said relevant rights and interests could be considered through the statutory procedure under section 3 of the Immigration Act 1999.
The judge added that refusing leave to appeal did not mean the child would be deported. It meant her interests would be assessed through that alternative procedure. The application for leave to appeal was refused.