The High Court has refused the Minister for Justice and Equality’s application for a certificate that would allow an appeal to the Court of Appeal in Jamiee Middelkamp’s immigration case.
In a judgment delivered on 30 November 2021, Mr Justice Max Barrett said the Minister had not identified a point of law of exceptional public importance arising from the court’s earlier decision. Without that certificate, the Minister could not appeal under section 5(3)(a) of the Illegal Immigrants (Trafficking) Act 2000.
The earlier judgment, delivered in July 2021, had granted an order of certiorari quashing the Minister’s 2 January 2020 refusal of Ms Middelkamp’s application to vary her permission to remain in Ireland. The application was made under section 4(7) of the Immigration Act 2004.
The Minister proposed a question about whether Article 8 rights under the European Convention on Human Rights had to be considered in section 4(7) applications by short-term entrants, given that such rights must be considered in deportation proceedings. The judge identified two problems with applying that question to this case.
First, he said, Ms Middelkamp had initially been admitted for two years and could not properly be described as a short-term entrant. Second, the proposed question assumed a future deportation process. The judgment said there was no evidence she would overstay if her variation application were refused; the evidence instead pointed away from that prospect. The court had to assess the case on the evidence before it, rather than a different case that might arise if the facts changed.
The Minister also made a submission about the practical consequences and resources involved. The judge accepted that sworn evidence of practical consequences could be relevant when assessing exceptional public importance. But he said those consequences could not turn a legal question that departed from the facts into one arising from this case.
The court therefore refused the certificate. The judgment’s concluding explanation to Ms Middelkamp said that, as a result, there could be no appeal to the Court of Appeal. The ruling concerned the Minister’s request for certification; it did not reconsider the earlier order quashing the visa-variation refusal.