The High Court rejected a constitutional and human-rights challenge to the common-law rules governing judicial review in a deportation case, finding that the rules provided an adequate remedy for the rights raised. It also held that a separate statutory process allowed new facts arising after a deportation decision to be considered by the Minister.
The case concerns a challenge to a decision to deport the first applicant, which the judgment said could effectively rupture his family ties with two Irish citizen step-children. The applicants had already obtained leave to seek judicial review of that decision. In a reserved ruling on 25 February 2011, the court found substantial grounds for arguing that the Minister’s assessment had minimised the potential impact on the children. The validity of the deportation decision itself remained for the substantive judicial review proceedings.
At this stage, the applicants argued that the common-law standards used in judicial review were unconstitutional because they could not adequately protect rights engaged in asylum and deportation cases. They also sought a declaration of incompatibility under the European Convention on Human Rights Act 2003, arguing that Article 13’s right to an effective remedy had been breached. Their challenge concerned the substantive standards of review, such as reasonableness and rationality, rather than the procedural rules for bringing judicial review.
Justice Hogan held that, following the Supreme Court’s decision in *Meadows*, judicial review could assess whether a decision affecting fundamental rights was disproportionate. The court was not confined to intervening only where there was no evidence to support a decision. It could examine the decision’s substance and its impact on rights without replacing the decision-maker’s judgment with its own.
The court also rejected the argument that judicial review had to admit new evidence arising after the original decision. Receiving and acting on such evidence would turn review into an appeal. Instead, section 3(11) of the Immigration Act 1999 allowed the Minister to consider new material and revoke a deportation order. A refusal to revoke could itself be challenged by judicial review, the judge said.
The court concluded that the judicial review rules met constitutional requirements and that the statutory revocation process addressed later developments. It found no basis for either a declaration that the rules were unconstitutional or a declaration of incompatibility under section 5(2) of the 2003 Act. The ruling determined those legal challenges; it did not decide the underlying challenge to the deportation decision.