The High Court has refused an application by three anonymised applicants for a certificate to appeal a February 2017 ruling on Article 8 rights in a deportation case.
Ms Justice O’Regan delivered the judgment on 8 May 2017. The applicants sought leave to appeal under section 5(3)(a) of the Illegal Immigrants (Trafficking) Act 2000, which permits an appeal only where the High Court certifies that the decision involves a point of law of exceptional public importance and that an appeal is desirable in the public interest.
They proposed asking whether, when the Minister accepts that deportation could interfere with a settled migrant’s private life, the Minister must always carry out a proportionality assessment under Article 8(2) of the European Convention on Human Rights—or can decide that the private life rights do not reach the threshold for Article 8 protection without conducting that assessment.
The respondent Minister took a neutral position and filed no submissions. The applicants argued that the February judgment created uncertainty and referred to a later High Court judgment in Rughoonauth. Justice O’Regan said the applicants had not identified the authority they said supported their position, and that the asserted conflict with Rughoonauth was not addressed by their proposed appeal question.
The judge considered the European Court of Human Rights’ decision in Balogun and the Court of Appeal’s decision in Balchand. She noted that Balogun said the strength of a settled migrant’s social ties would, in most cases, be considered in an Article 8(2) proportionality assessment, but did not establish that such an assessment was required in every case. Balchand, she said, addressed when Article 8 is engaged and stated that the Minister decides whether the proposed decision has consequences serious enough to constitute interference, subject to judicial review.
The court concluded that the proposed point did not qualify for certification under the statutory test and that clarification of the law was not required. It refused the application for an appeal certificate. The judgment concerns certification of a proposed appeal; it does not itself determine the underlying deportation decision.