The High Court granted two applicants leave to appeal in a judicial review case concerning a refusal to revoke a deportation order. It also continued an injunction restraining their deportation until the appeal is finally determined, subject to the applicants undertaking to pursue it promptly and seek priority in the Court of Appeal.
In a judgment delivered on 24 June 2016, Mr Justice Richard Humphreys certified that two points of law were of exceptional public importance and that an appeal was desirable in the public interest. The points are whether section 5 of the Illegal Immigrants (Trafficking) Act 2000 applies to a refusal to revoke a deportation order, and whether the Minister for Justice and Equality had a duty to consider the second applicant’s position separately from the first applicant’s.
The court had already dismissed the substantive judicial review application in an earlier judgment. This decision dealt with leave to appeal, the injunction and costs; it did not reverse the earlier dismissal or determine the appeal itself.
The judge declined to certify a separate proposed question about whether Article 42A.1 of the Constitution changes the State’s entitlement to deport children who are unlawfully present. He said that question, as it arose in this case, concerned a limited group of applicants who had not relied on constitutional educational rights at the deportation-order stage before Article 42A was enacted, and did not significantly transcend the facts of the case.
On costs, the judge departed from the usual rule that costs follow the event and awarded costs to the applicants, including reserved costs, to be measured by the court. He cited, among other matters, that the applicants had succeeded on a contested issue about children’s right to education, the legislation’s lack of clarity, the certified appeal points, and the respondent’s conduct.
The judge said the respondent had expressly indicated at the hearing that it was not making a further pleading objection, then sought to raise a new objection after the hearing had concluded. He considered that late change unfair because the applicants had no real opportunity to respond by seeking an amendment. The costs order, he said, was intended to discourage a repeat of that approach.