The Supreme Court has dismissed an appeal by the Smith family and upheld the refusal of leave to challenge the Minister for Justice’s second decision not to revoke a deportation order against Mr. Smith. The court was deciding whether the family had shown an arguable case for judicial review; it did not conduct a full judicial review of the Minister’s decision.
The Smiths argued that deporting Mr. Smith would disproportionately interfere with the family’s rights. They relied on changes in the status of one of the children, European Union case law including Zambrano, and a later High Court judgment concerning the lasting effects of deportation. They also argued that the High Court had given too much weight to Mr. Smith’s conduct without properly considering the rights of the other family members.
The Supreme Court said a second or later application to revoke a deportation order must identify significant new facts, materials or circumstances that were not before the Minister previously. A relevant change in law could, in principle, require reconsideration, but it would need to materially apply to the case. The court also said applicants should raise relevant points with the Minister when they are available and challenge an adverse decision in a timely way.
The court found that the grant of permission to remain to Rufai Smith could not support the later challenge: it had occurred on the same day as the Minister’s first refusal to revoke Mr. Smith’s order, and that refusal had not been challenged. The Zambrano judgment predated the first revocation application, while the later High Court decision did not arguably create a materially different legal framework requiring reassessment. The court therefore found no arguable new circumstances requiring the Minister to reconsider the case.
The judgment also addressed the High Court’s alternative view that leave should be refused even if an arguable ground had been established. It said the judge could consider whether sending the matter back to the Minister could realistically change the result. In light of Mr. Smith’s serious criminal offending and immigration breaches, the Supreme Court considered there were compelling reasons to conclude that further consideration would not have changed the outcome. It dismissed the appeal and affirmed the order refusing leave to seek judicial review.