The High Court has refused an application to add a constitutional challenge to the grounds of a judicial review concerning a deportation order, ruling that the proposed argument was new and was raised too late in the proceedings.
The applicants sought to challenge the validity of a deportation order made against the first applicant on 23 April 2009. They were told of the order by letter dated 8 May 2009 and began judicial review proceedings on 25 June 2009.
Their existing case included general claims that deportation would disproportionately affect constitutional and European Convention on Human Rights rights. But the court said the pleadings did not indicate that they had sought to challenge the constitutionality of section 3(1) of the Immigration Act 1999, or that such a challenge was contemplated when the proceedings began.
At the hearing, the applicants argued that the order operated in principle as a lifelong ban, subject to the Minister’s power to revoke it. The judge referred to an earlier ruling on the provision’s effect and asked whether the applicants could make that proportionality argument without challenging the provision itself. The amendment application followed.
Mr Justice Hogan said the court had jurisdiction to allow an amendment because the case had not yet reached judgment. He nevertheless refused permission. He distinguished an earlier case in which a late amendment had been allowed, saying that the proposed ground here was entirely new and did not simply expand arguments already made.
The judge also relied on the legislative policy requiring judicial review challenges to deportation orders to be brought promptly and their grounds advanced at the earliest opportunity. The proceedings had been under way for about 20 months. He said the recent decision that prompted the new argument did not amount to a serious error or establish exceptional circumstances warranting a late amendment.
The court’s decision was limited to the amendment application. It refused leave to add the constitutional challenge; the judgment did not determine the substantive validity of the deportation order.