The High Court found no substantial ground for judicial review of decisions refusing subsidiary protection and making deportation orders for a mother and her young son, but allowed the mother to add a challenge to a later refusal to revoke those orders.
In a judgment delivered on 16 March 2011, Mr Justice Cooke considered the applicants’ request for leave to challenge the Minister’s decisions. The court’s ruling addressed the grounds argued in that leave application; it did not determine the newly added revocation challenge.
The judge permitted an amendment to include a claim challenging the 8 February 2011 refusal to revoke the deportation orders. He postponed consideration of a separate proposed claim that common law rules governing judicial review were unconstitutional, noting that the issue was being considered in other High Court cases and that it was premature to address it before deciding whether substantial grounds for review existed.
The son’s subsidiary protection application had been refused in September 2010. The applicants argued, among other things, that the decision’s assessment of state protection in Nigeria was irrational in light of material describing problems with the country’s security forces. The judge said the decision had to be read as a whole. Its main basis was the finding that the mother’s account, on which the child’s claimed risk depended, was not credible. The court concluded that the determination was not unreasonable or irrational and that the account did not objectively support a claim that the child would face the same threats if returned.
The applicants also argued that the Minister had considered deportation before deciding the subsidiary protection application, contrary to the required sequence. The judge rejected that interpretation. Preparatory work could be done around the same time, he said, provided the Minister decided the protection application before making the deportation decision. The court found the final consideration of deportation came after the protection decision and rejected the related allegation of bias or prejudgment.
The mother’s later representations referred to a prospective job and the child’s attendance at preschool. The judge found neither was a material change requiring further consideration. He also rejected arguments that the Minister had to invite updated representations after the delay, or had failed to address a new refoulement concern, finding the later submission raised no new relevant facts.
The court concluded that no substantial ground for leave had been made out on the grounds it considered. It then indicated it would hear the parties on the proposed amendments, including the added revocation challenge.