The High Court refused X’s application for leave to appeal a previous judicial review judgment, finding that the proposed points of law did not meet the statutory test for certification.
In a judgment delivered on 7 May 2021, Mr Justice Max Barrett considered whether the earlier ruling raised points of law of exceptional public importance and whether an appeal would be desirable in the public interest. The application was made under section 5(3)(a) of the Illegal Immigrants (Trafficking) Act 2000, as amended.
X proposed two points. The first asked whether the Minister for Justice had failed to discharge her obligations in a non-refoulement decision by adopting determinations made by international protection bodies without further review. The judge said that issue had not been before the court in the earlier case and had not been decided. There was therefore nothing on that point to appeal. He added that an obiter observation—one not necessary to the earlier decision—could not itself be appealed.
The second proposed point concerned whether the Minister was required to give adequate written reasons for her opinion on non-refoulement in notices under sections 50 and 51(3) of the International Protection Act 2015. The judge said the earlier judgment had found that sufficiently detailed reasons were given, consistent with settled authority. He said X could not have been in doubt about the reason for the decision: the Minister had not accepted his claim to be homosexual or bisexual. The judgment cited the Supreme Court’s decision in Mallak v Minister for Justice on circumstances where the reasons for a decision are obvious and effective judicial review is not prevented.
The court concluded that no point of law of exceptional public importance arose from the earlier judgment and that leave to appeal could not issue. It did not decide whether X could appeal any aspect without leave, saying that if he considered such an appeal available, he did not need the court’s input on that question.
The judge said the Minister had the letter of the law on her side, but expressed concern that X, who consistently claimed to be bisexual, appeared likely to be deported to a country where LGBTI+ people were treated badly. He said that outcome had the potential to involve a grave moral wrong. The judgment does not identify the country or set out a deportation order in this leave application.