The Supreme Court heard an appeal concerning the refusal of leave to seek judicial review of a deportation order made against Abosede Oluwatoyin Meadows after her asylum application was rejected. The certified legal question was whether the O’Keeffe standard remains the correct test when an administrative decision affects constitutional or fundamental rights.
The judgment delivered by Justice Hardiman on 21 January 2010 is a dissenting judgment. Hardiman J. would have answered that the O’Keeffe standard applied and refused leave to seek judicial review. His conclusion was not the court’s order: he records that other members of the court proposed granting leave on a ground concerning the Minister’s decision on non-refoulement.
Meadows, a Nigerian national, had applied for asylum in December 1999. An immigration officer rejected the application in June 2000, and the Refugee Appeals Tribunal dismissed her appeal in June 2001. The judgment says those decisions were not challenged. Her asylum account included alleged inter-tribal violence, forced marriage and a risk of female genital mutilation (FGM). The Tribunal found she had not established a credible connection between her circumstances and the alleged risks of forced marriage or FGM.
After the asylum process, Meadows sought permission to remain on humanitarian grounds. The Minister refused and made a deportation order in July 2002, stating that the public interest in maintaining the integrity of the asylum and immigration system outweighed features of her case supporting leave to remain. She then sought judicial review. The High Court refused leave in November 2003, and she appealed under a certificate concerning the applicable review standard.
Hardiman J. reasoned that the Minister was not required to rehear or revisit the asylum claim, which had already received two unchallenged decisions. He considered the material supplied to the Minister, including country information on FGM, capable of supporting the decision. In his view, the applicant had to establish a specific procedural deficiency or an absence of evidence capable of supporting the decision; the Minister did not have to justify it to the court.
He rejected introducing “anxious scrutiny” as a separate test, while saying that courts could scrutinise decisions affecting fundamental rights particularly carefully within O’Keeffe reasonableness review. The dissent does not establish the majority’s reasoning or the final order in the appeal; the supplied judgment excerpt records only Hardiman J.’s proposed answer and refusal of leave.