The Supreme Court left open whether starting judicial review proceedings to challenge a deportation order automatically prevents the State from carrying it out while the case is pending.
In a judgment delivered on 2 March 2006, Denham J. said the issue had been argued but did not arise for decision in the appeal. She expressed no opinion and said she would await a case in which the question was at issue. She agreed with Geoghegan J. on the matters that did fall to be decided.
The judgment described a High Court ruling by Peart J. that, once judicial review proceedings had been properly commenced, no injunction was needed to prevent steps being taken to implement the challenged deportation order. That view included cases where proceedings were begun outside the statutory 14-day period but an extension of time was sought.
Denham J. set out the relevant statutory process under the Illegal Immigrants (Trafficking) Act 2000. It required challenges to the validity of specified immigration decisions, including deportation orders, to be brought by judicial review. An application for leave generally had to be made within 14 days of notification, although the High Court could extend that period for good and sufficient reason. The judgment also noted that the rules expressly allowed leave to operate as a stay in specified circumstances after leave was granted, but made no explicit provision for a stay before the court ruled on the leave application.
The judgment discussed the procedural gap that can arise when an application is filed but the motion for leave is listed for a later date. It also referred to an earlier Supreme Court decision upholding the statutory scheme and recognising a non-national’s constitutional right of access to the courts to challenge the validity of a deportation order.
The Supreme Court did not decide whether filing an application for leave itself creates an automatic stay, and Denham J. made no order on that question in this judgment.