The High Court has refused A.W.K.’s application for leave to appeal after an earlier judgment refused the applicant’s judicial review application.
Mr Justice Richard Humphreys delivered the ruling on 5 November 2018. He held that section 5 of the Illegal Immigrants (Trafficking) Act 2000 applied to the proceedings, so leave to appeal was required. He then refused leave, dismissing the application.
The applicant proposed five questions said to be of exceptional public importance. The first three concerned whether section 5 applied. The judge said it was questionable whether that issue was suitable for an appeal requiring leave, since granting leave could make the issue moot. He rejected a separate argument that the constitutional-validity exception in section 5(6)(b) applied, explaining that the issue was how the provision should be interpreted, not whether a law was valid. No challenge to the validity of a law had been pleaded or argued.
The fourth proposed question concerned whether an “exceptionality” test applied to private and family rights under section 49(3) of the International Protection Act 2015. The judge said that question distorted his earlier ruling. He had referred to the established principle that deportation of unsettled migrants breaches Article 8 only in exceptional circumstances; he had not said that the Minister could grant permission to remain only in exceptional circumstances. He also noted that the point had been addressed by the Supreme Court in an earlier case.
The fifth question concerned whether sections 49(7) and (9) of the 2015 Act precluded multiple review applications. The judge recorded that the applicant accepted the legislation contemplated one review application. A further complaint about delay in considering Article 8 rights after a review was rejected was not raised in the pleadings and was not a suitable new ground for leave, he said. The judge added that private-life rights could be considered through the initial process, a review, or a revocation application, and that applicants could not demand examinations immediately or on demand.
The ruling concerns leave to appeal from the earlier judicial review decision. It does not itself determine the underlying judicial review application, which had already been refused.