The High Court has refused a minor applicant a certificate to appeal to the Supreme Court after previously refusing leave to challenge a decision denying her readmission to the asylum process. It also ruled that a proposed reference to the Court of Justice of the European Union did not arise.
In a judgment delivered on 27 July 2011, Mr Justice E. Smyth said the applicant had sought a certificate under section 5(3) of the Illegal Immigrants (Trafficking) Act 2000. Such a certificate required a point of law of exceptional public importance and that an appeal be desirable in the public interest.
The applicant’s refugee-status application had been made through her mother, who could not attend an interview on the scheduled date. A medical certificate explaining her absence was sent to the family’s legal representatives but, due to an administrative error, was not passed to the Refugee Applications Commissioner. The application was deemed withdrawn after the required explanation was not provided within three days. The Minister later refused readmission under section 17(7) of the Refugee Act 1996. The High Court refused leave to seek judicial review of that decision on 15 April 2011.
For the appeal certificate, the applicant argued that the Minister had to consider the child’s best interests under Article 24(2) of the EU Charter when deciding whether to readmit her. She also asked the High Court to refer questions to the EU court about the Charter and asylum procedures. The Minister opposed both requests, arguing that the issues did not arise from the earlier judgment.
Justice Smyth said the earlier decision had found that the Minister applied the correct test when considering readmission. He said the legal test was not novel or uncertain and that the unusual facts did not show a public benefit in an appeal. The court also noted that the applicant retained options to apply again for readmission, seek subsidiary protection and make submissions against removal; removal would be prohibited if it would result in refoulement.
The judge held that the Charter issue did not arise from the earlier judgment. The separate argument concerning the EU Procedures Directive had not appeared in the statement of grounds or been argued at the hearing. He concluded that a reference to the EU court was unnecessary and refused the certificate. The Minister’s argument that the application was delayed did not arise for decision.