The High Court has granted a certificate allowing an appeal to be pursued over its refusal to grant leave for a judicial review challenge to a deportation order.
The order concerned the third-named applicant, Akintola Lofinmakin. In a judgment delivered on 1 February 2011, the court refused leave, finding that no substantial ground had been shown for quashing the decision. The applicants then sought a certificate to appeal that ruling to the Supreme Court under section 5(3)(a) of the Illegal Immigrants (Trafficking) Act 2000.
The certificate was granted in a judgment delivered by Mr Justice Cooke on 25 March 2011. It sets out two points of law for the proposed appeal. The first asks whether Article 24.3 of the EU Charter of Fundamental Rights, read with Article 51.1, applied to the 20 August 2009 deportation decision concerning a non-EU parent of a minor Irish and EU citizen living in the State.
The second concerns the judicial review standard following the Supreme Court’s decision in *Meadows v Minister for Justice, Equality and Law Reform*. It asks whether an applicant must identify a particular error, omission or other flaw in the Minister’s reasoning or assessment, rather than simply allege that a decision is irrational, unreasonable or disproportionate and ask the court to reassess the balance between the State’s interests and the rights of the applicant and family.
Justice Cooke said the first issue raised a question of EU law that the High Court could not definitively resolve. He referred to the Court of Justice of the European Union’s 7 March 2011 judgment in *Zambrano*, delivered after the original High Court ruling, and said any preliminary reference would be better considered after full argument before the Supreme Court.
He said the second issue extended beyond this case. Many asylum cases were pending in the High Court in which parties relied on *Meadows* to argue that judges should examine the merits of deportation decisions and could substitute their own assessment. The court said clarification could affect judicial review more broadly and would promote legal certainty.
The certificate allows the two specified legal questions to be taken forward on appeal. The judgment does not determine those questions or overturn the earlier refusal of leave to seek judicial review.