The High Court has refused an applicant leave to appeal on whether a deportation order was unlawful because it did not itself state a date for departure. The court adjourned consideration of a separate proposed appeal question.
In a judgment delivered on 13 February 2017, Mr Justice Richard Humphreys considered an application concerning one of two questions the applicant had identified after leave to seek judicial review was refused in October 2016. The other question overlapped with another case and was postponed.
The proposed question was whether a deportation order is lawful if it does not state a date for compliance, and whether such a date had been lawfully identified in this case. The applicant argued that the order needed to specify the date expressly. The judge said he had held in the earlier substantive judgment that the date could be specified expressly or by implication, and that the date of service of the accompanying notification made the departure date clear.
The court said the leave-to-appeal process required a question of law of exceptional public importance that could determine the proceedings. It rejected the argument that the point met that threshold, describing the proposed transfer of words from the notification to the order as a minor technical issue. It also found that the argument about possible arrest for failing to leave did not arise from the question identified for appeal. The applicant had not been arrested when the original notification was served, the judgment said.
The judgment referred to the applicant’s earlier asylum claim after arriving from Egypt and to his subsequent failure to provide an address or maintain contact with the relevant authorities. In the earlier decision, the judge had treated that conduct as repudiating the legal basis on which the applicant had been admitted. In this judgment, he said service had been impossible because of the applicant’s failure to engage with the system, and that waiver could apply in that context. He did not make a final finding on waiver, however, and cited separate reasons for rejecting the original judicial review application, including the absence of substantial grounds and the court’s discretion.
The court declined leave to appeal on the date-of-departure question. It adjourned for further argument the question of whether to grant leave on the applicant’s other proposed question. The judgment does not resolve that separate question.