The Supreme Court ruled that Haq Nawaz’s constitutional challenge to the deportation provisions of the Immigration Act 1999 could not proceed as an ordinary plenary action. Because the challenge could invalidate a deportation order, the court said it had to be brought through judicial review under section 5 of the Illegal Immigrants (Trafficking) Act 2000.
The judgment, delivered by Mr Justice Clarke on 29 November 2012, addressed two appeals involving Mr Nawaz and the Minister for Justice, Ireland and the Attorney General. The first concerned whether EU law required Ireland to let a person apply for subsidiary protection without first applying for and being refused refugee status. The second concerned the procedural route for Mr Nawaz’s constitutional challenge.
On the first appeal, the Supreme Court decided to refer a question to the European Court of Justice. It said the EU Qualification Directive’s meaning was not clear on whether Ireland could require someone who did not claim refugee status to go through enough of the refugee process to be refused before seeking subsidiary protection. The court did not decide whether the Irish system was compatible with the directive.
In the second appeal, Mr Nawaz argued that section 3 of the 1999 Act was unconstitutional because it did not allow a person whose request to remain on humanitarian grounds had been refused to leave voluntarily before a deportation order was made. The State argued that section 5 of the 2000 Act required such a challenge to be brought by judicial review.
The High Court had rejected the State’s application to strike out the constitutional challenge from the plenary proceedings. The Supreme Court allowed the State’s appeal, concluding that the challenge’s practical purpose was to prevent or invalidate a deportation order, a type of measure covered by section 5. It ordered that the constitutional aspects of the plenary action be struck out because that procedure did not comply with the section.
The court was told that a deportation order had since been made and was already being challenged by judicial review. Clarke J said an application should be made to amend that review to include the constitutional grounds raised in the plenary proceedings, and saw no reason why such an application should not be allowed in the circumstances. He also said the High Court could require the related European Convention on Human Rights claims to be added to the same review, with the plenary proceedings then discontinued.
The Supreme Court did not decide whether section 3 was unconstitutional or whether the deportation order was valid. Its ruling concerned the route for bringing the challenge and the proposed handling of the pending proceedings.