The High Court has refused to halt the deportation of a Cameroonian man identified as J.A. while he prepares an appeal concerning the lawfulness of his detention.
J.A. had brought proceedings under Article 40.4 of the Constitution, the procedure used to challenge allegedly unlawful detention. Those proceedings sought his release from Cloverhill Prison. They did not challenge the underlying deportation order, which Mr Justice Richard Humphreys said was too old to be challenged at that stage.
After the court found J.A.’s detention lawful, his lawyers sought a stay preventing deportation while an appeal was lodged. They argued that maintaining the existing position would preserve the appeal and referred to an issue concerning Article 26 of the Constitution. The judge noted, however, that he had decided that particular issue in J.A.’s favour, so it could not provide a ground for his appeal.
A further difficulty concerned the statutory limit on detention for deportation purposes. The eight-week period was due to expire on 11 November 2017. The court said J.A. would then have to be released regardless of an undertaking by him not to rely on that limit.
Unlike judicial review proceedings directly challenging a deportation order, the legislation did not provide for that detention period to be extended because an Article 40 application had been brought. The judge said this potentially revealed a gap in the legislation.
The court considered there was no realistic prospect of completing the full appellate process before the eight-week period expired. Granting a stay could therefore effectively decide the practical outcome regardless of the merits.
The judge also took account of J.A.’s immigration history, including a lengthy period of evasion and repeated applications, the latest of which he had previously described as prima facie abusive.
Because the substantive detention challenge had failed, the court concluded that a stay should not undermine that ruling. Even assuming jurisdiction existed to halt a deportation order that was not itself under challenge, the application for a stay was refused.