The High Court refused the applicants’ request for leave to appeal to the Supreme Court and for the certificate required under section 5(3)(a) of the Illegal Immigrants (Trafficking) Act 2000. It said the proposed appeal did not concern a point of exceptional public importance and was not a case in which an appeal was desirable in the public interest.
The ruling, delivered by Mr Justice Cooke on 4 May 2011, dealt with outstanding matters after the court had delivered judgment on the main issues in the judicial review on 16 March 2011. At the resumed hearing, the applicants withdrew the remainder of a motion to amend their grounds. They instead sought permission to appeal on the interpretation of Regulation 4(5) of the European Communities (Eligibility for Protection) Regulations 2006.
Their proposed question was whether the regulation barred the Minister or departmental officials from considering matters relating to a possible deportation before a subsidiary protection application had been determined. The applicants said an Executive Officer’s work on a deportation file began before the subsidiary protection decision, and argued that the Carltona doctrine meant the official’s preparatory work should be treated as consideration by the Minister. They also submitted that starting this work early could create an appearance of bias or prejudgment.
The court said Regulation 4(5) required the subsidiary protection application to be determined before the deportation decision. But the issue in the appeal application was whether the phrase “proceed to consider” also required the Minister to wait before any preparatory work began.
The court had rejected the applicants’ interpretation in its earlier judgment, describing it as excessively literal and as failing to account for how administrative decision makers organise their work. It distinguished preliminary file review, summaries and draft recommendations from the Minister’s exercise of the statutory power to make a deportation order. The order in this case, the court said, had been made personally by the Minister several weeks after the subsidiary protection decision.
The court considered the proposed point capable of arising in other cases, but said it arose here because some notation in the file predated the protection decision. It found the issue of modest interest, not exceptional public importance, and said this case was not an appropriate vehicle for an appeal. The ruling concerned only the application for leave to appeal and the statutory certificate; it did not revisit the main judicial review judgment.