The High Court refused an applicant’s request for a certificate allowing an appeal to the Supreme Court over the refusal of leave to challenge a deportation order.
The application followed a High Court judgment on 2 February 2012, which had refused leave to seek judicial review of a decision on the applicant’s subsidiary protection application and of a deportation order. The applicant sought a certificate under section 5(3) of the Illegal Immigrants (Trafficking) Act 2000 in relation to the refusal of leave concerning the deportation order.
The proposed appeal asked whether Regulation 4(5) of the European Communities (Eligibility for Protection) Regulations 2006 prevented the Minister, or officials acting for the Minister, from considering whether to make a deportation order before a final decision on a subsidiary protection application.
The applicant’s submission was that officials had begun considering the deportation order before the subsidiary protection application was finally determined, contrary to the regulation. The court had rejected that argument in its earlier judgment. It had held that the application must be determined before a deportation order is made, but that the regulation did not prohibit officials from doing preparatory work on a deportation file beforehand.
The court noted that the same proposed point had previously been considered and rejected as a basis for an appeal certificate in another case, O.O. and B.O. (a minor) v Minister for Justice, Equality and Law Reform and Others. It said it would be inconsistent to find the law uncertain after having ruled that the relevant wording was unambiguous.
The court also considered whether an appeal on the point was desirable in the public interest. It said the applicant intended to appeal the refusal of leave concerning the subsidiary protection decision, and had provided a draft notice of appeal. The court concluded that the proposed legal issue could be raised in that appeal, including arguments that officials’ work on both files involved bias or prejudgment.
The court therefore refused the certificate. Its ruling concerned permission to appeal on the proposed point about the deportation order; it did not determine the separate appeal concerning the subsidiary protection decision.