The High Court has rejected the Minister for Justice and Law Reform’s motion to set aside leave granted to Abdullah Jamali to seek judicial review of the reasons for a decision allowing him to remain in Ireland temporarily.
The ruling, delivered by Ms Justice M. H. Clark on 24 January 2013, addressed only whether the leave application had to be brought on notice under the Illegal Immigrants (Trafficking) Act 2000. The court did not decide whether the Minister’s reasons were adequate, whether Mr Jamali was entitled to the declarations he sought, or whether his case was brought too late.
Mr Jamali, an Afghan national who had lived in Ireland since 2005, was refused subsidiary protection in 2008. The Minister then decided not to make a deportation order and granted him temporary permission to remain. That permission was later renewed, and the judgment records that it ran until the end of 2013.
Mr Jamali argues that the reasons given for granting permission were inadequate and that an internal memorandum showed the decision-maker had considered the prohibition on refoulement. He says the decision and reasons amounted to recognition that he could not be deported consistently with that prohibition. The Minister’s position, as set out in the judgment, was that the permission was granted on humanitarian grounds under section 3(6) of the Immigration Act 1999. The Minister also argued that the challenge was out of time and should have been brought on notice.
The court held that the special procedures in section 5 of the 2000 Act did not apply to this challenge to a positive decision granting leave to remain. Reading section 3 of the 1999 Act in context, the judge concluded that its notification provisions concerned decisions connected with proposed deportation, not a decision to grant leave instead. The court found the initial application was therefore not a procedural nullity, and dismissed the Minister’s motion.
The judgment expressly limits that decision to the procedure used to obtain leave. The court said it would next consider the part of the leave application that had been directed to proceed on notice, followed by the application for declarations. It left the delay question unresolved because it had not been sufficiently argued at this hearing. The judgment also raised doubt about whether Mr Jamali’s wife and children, who were named as applicants but had never been in Ireland, had standing; it considered Mr Jamali as the applicant in the singular.