The High Court has refused the State leave to appeal an earlier ruling concerning a deportation order and an applicant who had been permitted to reapply for international protection.
In a judgment delivered on 16 December 2019, Mr Justice Richard Humphreys considered five questions proposed by the Minister for Justice and Equality. He said the State had no presumption of entitlement to appeal simply because it was the State seeking leave.
The application followed a third judgment in the case, in which the court had granted certiorari of the refusal to revoke the deportation order after a significant change in circumstances, principally the grant of permission to reapply for international protection. The current application concerned only whether the State could appeal that decision; it did not decide the applicant’s protection claim.
The judge said the deportation order’s continued existence was not unlawful on 24 April 2018, before the International Protection Appeals Tribunal allowed the applicant’s appeal. He said the problem arose later, after that decision, when maintaining the order frustrated the statutory process begun by permission to reapply. The timing difference between the tribunal’s decision and a later request from the applicant’s solicitor was, he said, an academic detail for the leave application.
The State also argued that the earlier judgment raised questions about EU law, the applicant’s potential exclusion from protection, and the relationship between the Minister’s power to revoke a deportation order and the protection process. The judge said key arguments had not been advanced at the original hearing and could not simply be introduced after an adverse judgment. He also said the protection decision-making bodies, after hearing evidence and submissions, were responsible for deciding whether the applicant was excluded from protection. He did not determine that issue.
On the case’s particular facts, the judge said the applicant was outside the State and could not make the permitted reapplication without being readmitted. If a deportation order remained in place, revoking it was the route to readmission. He described the circumstances as extremely unusual and found no evidence that the case had broader effects.
The court refused leave to appeal. The judgment described the dispute as an interim question about what should happen pending determination of the reapplication; it did not determine whether the applicant would ultimately receive protection.