The High Court has refused an application by an anonymised applicant for a certificate allowing an appeal to the Court of Appeal in a challenge to a deportation order. It also ordered him to pay the Minister’s costs, to be adjudicated upon if the parties cannot agree.
The judgment, delivered by Ms Justice Miriam O’Regan on 3 November 2022, dealt with two matters left after the applicant’s challenge to the deportation order was refused in a judgment on 1 July 2022: whether to certify proposed appeal questions and who should pay the costs.
The applicant sought certification under section 5(6)(a) of the Illegal Immigrants (Trafficking) Act 2000, as amended. The court said certification requires a point of law of exceptional public importance and that an appeal be desirable in the public interest. Those requirements are cumulative, and the jurisdiction must be exercised sparingly.
The proposed questions concerned how the Minister considered employment prospects under the Immigration Act 1999, whether any error would invalidate the deportation order, how courts should approach conflicting decisions, and whether the applicant’s circumstances could justify refusing relief on discretionary grounds. The applicant argued, among other things, that his employment history and self-employment distinguished his case and that earlier judgments produced uncertainty. The Minister opposed certification, submitting that the issues turned on the case’s facts and did not raise a point of exceptional public importance.
Justice O’Regan acknowledged some uncertainty in the case law about when comments on a person’s past and present immigration status might adversely affect employment prospects. She found it did not meet the threshold for certification. She also concluded that the alleged conflict between two earlier decisions did not arise from the judgment under appeal, and that the judgment had not breached principles of judicial comity. The proposed questions therefore did not qualify for a certificate.
On costs, the court noted that the Minister had been entirely successful, the proceedings did not involve separate issues, and the case was not a test case. It was not satisfied that the applicant’s asserted contribution to clarifying the law justified departing from the usual costs outcome. The order was for costs in the Minister’s favour, with adjudication if there was no agreement.