Judgment: 2011-02-09 · Court archive

High Court rejects post-judgment bid to challenge deportation law

The court ruled it had no jurisdiction to allow an amendment that would add a new constitutional challenge after it had refused leave to seek judicial review.

{'name': 'The High Court', 'division': 'Judicial Review'} · [2011] IEHC 95

Who, what, where, when and why

Who

See the report below for the parties involved.

What

The court ruled it had no jurisdiction to allow an amendment that would add a new constitutional challenge after it had refused leave to seek judicial review.

Where

Places mentioned in the report

  • The State
When

Judgment:

Why

Reasons reported in the judgment

In a judgment delivered on 9 February 2011, Mr Justice Hogan said the applicants had sought to challenge the constitutionality of section 3(1) of the Immigration Act 1999. They argued that the provision imposed a disproportionate interference with their constitutional rights because a deportation order took effect as a lifelong exclusion from the State. Alternatively, they sought leave to pursue a declaration that the provision was incompatible with the European Convention on Human Rights.

The High Court has refused an application by six anonymised applicants to amend their pleadings after judgment, ruling that it had no jurisdiction to allow a new challenge to the law governing deportation orders at that stage.

In a judgment delivered on 9 February 2011, Mr Justice Hogan said the applicants had sought to challenge the constitutionality of section 3(1) of the Immigration Act 1999. They argued that the provision imposed a disproportionate interference with their constitutional rights because a deportation order took effect as a lifelong exclusion from the State. Alternatively, they sought leave to pursue a declaration that the provision was incompatible with the European Convention on Human Rights.

The application followed an earlier judgment, delivered on 13 December 2010, in which the court refused the applicants leave to apply for judicial review. That decision held that a deportation order under section 3(1), once effective, resulted in lifelong exclusion, subject to the statutory provision for making representations and the Minister’s power to revoke an order. The applicants had effectively abandoned their other points, and their challenge to the order’s validity was refused.

The order arising from that judgment had not yet been perfected because costs and a possible certificate of leave to appeal remained to be decided. But Justice Hogan held that the proceedings concerning the deportation order had already been disposed of and were no longer current before him. He said the High Court’s power under its rules to amend pleadings during proceedings did not extend to the proposed amendment after judgment in this case.

He also relied on a Supreme Court decision holding that a post-judgment amendment could not introduce a new cause of action that might lead to a different judgment while the original judgment stood. The proposed constitutional challenge, he said, would do just that. Although English courts had recognised a limited power to amend pleadings after judgment in exceptional cases, he was not persuaded that such circumstances existed here.

The court therefore refused the amendment for lack of jurisdiction. It did not decide the merits of the proposed constitutional or human-rights challenges. The judgment addressed the amendment application; the outstanding costs and appeal-certificate questions were not determined in the supplied extract.

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