The High Court has refused an application by Z.A. for a certificate that would have allowed an appeal on two proposed points of law arising from an earlier judicial review of a deportation decision.
Mr Justice David Keane delivered the ruling on 11 July 2019. The application was made under section 5(6)(a) of the Illegal Immigrants (Trafficking) Act 2000, as amended. The court’s judgment on the underlying judicial review had been delivered on 30 May 2019; the applicant had been unsuccessful in those proceedings.
The proposed first point concerned the test used to assess whether the Minister’s deportation decision was reasonable and proportionate under Article 8 of the European Convention on Human Rights. The judge said the application advanced two further issues under that heading: whether the absence of an independent appeal against a deportation order breached Convention rights, and whether the court should have adopted the approach of the European Court of Human Rights instead of the settled Irish test.
The judge refused to certify either issue. He said the independent-appeal point had not been raised in the applicant’s written submissions or argued before the court, and that it would be wrong to certify a point that had not been argued at trial. He also said the relevant law was settled. The proposed alternative-test point had likewise not been argued at trial, and the judge found no uncertainty in the law that would justify certification.
The second proposed point challenged the earlier judgment’s description of a deportation order as potentially lasting for life, given the Minister’s power under section 3(11) of the Immigration Act 1999 to revoke such an order. The judge said the applicant had not explained what legal point arose from the passage in question. Referring to the Supreme Court’s decision in Sivsavadze, he noted that a deportation order has no built-in time limit but may be revoked by the Minister.
The court refused the section 5 certificate. The ruling did not determine a new judicial review of the deportation decision; it dealt with whether the proposed issues could be certified for appeal.