The High Court granted the State an extension of time, certified points of law of exceptional public importance and gave it leave to appeal an injunction concerning the deportation of the first-named applicant, B.S. (India). The appeal is to the Court of Appeal. The injunction will remain conditional on the applicants updating the respondents at least every 14 days on progress with a DNA test.
Mr Justice Richard Humphreys delivered the judgment on 12 October 2020, explaining an order he had made on 19 August. The application followed an earlier judgment granting a substantive injunction in limited terms and dismissing the balance of the relief sought. The certified points are those set out in paragraph 54 of that earlier judgment, which the present judgment does not reproduce.
The State sought leave to appeal and argued, among other things, that the court had wrongly allowed amendments to the applicants’ pleadings and had misapplied the law on injunctions restraining deportation. The judge rejected the objections concerning amendments, saying the later challenges related to the original subject matter and that bringing them into the existing proceedings avoided multiple judicial reviews. He said the proposed challenge to the time calculation was fact-specific and did not raise a point of law of particular importance.
On the injunction issue, the judge said the earlier decision did not set aside the deportation order. He described the applicants’ position as including a right to have the Minister consider the matter on the correct factual basis after a reasonable opportunity to present it. He also said the injunction could be supported either by enforceable rights or because it was just or convenient in the circumstances; it did not depend on a finding that the applicants lacked such rights.
The court granted leave under section 5 of the Illegal Immigrants (Trafficking) Act 2000 to appeal the order of 30 July 2020, including insofar as it relied on reasoning in the first judgment. The parties agreed that any later decision on costs would be included in the appeal. By consent, the State is to file its notice of appeal first; arrangements for a formal application concerning the recording of the costs hearing may then be made.