KRA & anor v Minister for Justice & Equality (No. 2)

Factual and Procedural Background

This opinion concerns a judicial review application brought by the Applicants, a minor represented by her mother and next friend, against the Respondent, the Minister for Justice and Equality. The substantive application was previously dismissed by the court, which held that leave to appeal under section 5 of the Illegal Immigrants (Trafficking) Act 2000 was required. The current judgment addresses the issues of leave to appeal, an injunction restraining deportation, and costs.

Legal Issues Presented

1. Whether section 5 of the Illegal Immigrants (Trafficking) Act 2000 applies to a refusal to revoke a deportation order.
2. Whether Article 42A.1 of the Constitution affects the State's entitlement to deport children unlawfully present in the State.
3. Whether the Respondent was under a duty to consider the position of the second named Applicant separately from that of the first named Applicant.

Arguments of the Parties

Applicants' Arguments

• The first issue raised concerns the applicability of section 5 of the 2000 Act to refusals to revoke deportation orders, which the Applicants acknowledge may not alone justify leave to appeal but could be relevant in conjunction with other points.
• Regarding the second issue, the Applicants argue that Article 42A.1 of the Constitution raises an important constitutional question about the deportation of children, contending it is the first instance this question has been addressed by superior courts and that it potentially affects many children receiving education.
• On the third issue, the Applicants contend that the Respondent should have considered the second named Applicant's position separately from the first, challenging the interpretation of prior case law and emphasizing the need for a holistic appraisal of family members' situations.

Respondent's Arguments

• The Respondent accepts that the constitutional question raised is not of exceptional public importance generally, as it only applies to a limited category of applicants who did not rely on constitutional education rights at the deportation order stage.
• The Respondent disputes the existence of a separate entitlement to free primary education for the second named Applicant and challenges the Applicants’ success on this point.
• The Respondent maintains that no pleading objection was outstanding at the hearing and resists the court’s criticism of its late attempt to raise such an objection post-hearing, arguing it was a tactical decision and contesting the award of costs against it.

Table of Precedents Cited

Court's Reasoning and Analysis

The court carefully examined the statutory and constitutional issues raised by the Applicants. It applied established principles for granting leave to appeal, particularly emphasizing the requirement that the case involve points of law of exceptional public importance and that an appeal would be desirable in the public interest.

Regarding the first question, the court found that whether section 5 of the Illegal Immigrants (Trafficking) Act 2000 applies to refusal to revoke a deportation order is a matter of potential exceptional public importance, but certification depends on the overall context of the case.

On the second question, the court reasoned that the constitutional provision concerning education rights does not raise a point of exceptional public importance generally, as it only affects a limited category of applicants who failed to rely on educational rights at the deportation order stage. Thus, it does not significantly transcend the facts of the present case.

For the third question, the court acknowledged a divergence in High Court authority regarding whether the Respondent must consider family members’ positions separately or jointly. The court expressed its view that a holistic appraisal of family members is generally rational and humanitarian, but not necessarily requiring identical outcomes. This divergence was found to satisfy the statutory test for exceptional public importance.

On costs, the court analyzed prior case law and exercised its discretion to depart from the general rule that costs follow the event. It identified four reasons for this: the Applicants were not wholly unsuccessful; the legislation was opaque; points of exceptional public importance arose; and the Respondent’s conduct in attempting to raise a late pleading objection undermined fair case management. The court emphasized the importance of upholding orderly case management and discouraging unfair litigation tactics.

Holding and Implications

The court’s final orders were as follows:

• Leave to appeal was granted pursuant to section 5(6)(a) of the Illegal Immigrants (Trafficking) Act 2000, certifying that the case involves points of law of exceptional public importance, specifically: (a) whether section 5 applies to refusal to revoke a deportation order, and (b) whether the Respondent was under a duty to consider the second named Applicant’s position separately from the first.
• The injunction restraining the deportation of the Applicants was ordered to continue until the final determination of the appeal, conditional on the Applicants’ undertaking to prosecute the appeal expeditiously and to seek priority in the Court of Appeal.
• Costs were awarded to the Applicants, including reserved costs, to be measured by the court, reflecting the court’s disapproval of the Respondent’s conduct and the exceptional circumstances of the case.

The decision directly affects the parties by permitting an appeal on significant legal questions and maintaining protection against deportation pending that appeal. No new precedent beyond the certification of exceptional public importance and costs order was established.