A NIGERIAN woman’s successful Supreme Court case will in practice ensure every attempt to deport a failed asylum seeker will end in the courts, “which are already swamped by such cases”, Mr Justice Adrian Hardiman said.
Asylum cases represent more than half of judicial review cases, and the majority decision in favour of Abosede Oluwatoyin Meadows, who claims risk of female genital mutilation (FGM) if deported, would make seeking judicial review “much easier”, he said. In his 100-page dissenting judgment, he said the case represented “a major revolution in our immigration arrangements” and administrative law.
Ms Meadows had challenged “long accepted” criteria for judicial review and he believed the result was to introduce “in substance if not in formula” into our law the English approach to judicial review, known as “anxious scrutiny”. This was “neither necessary nor desirable”.
While the majority court did not believe its decision had “so drastic an effect”, he failed to see how the decision was not “a massive change” from a position where a judicial review applicant had to show there was “no” evidence to support the impugned decision.
Ms Meadows’s factual claims for asylum status were rejected in two separate independent hearings, but she now asked the court to review the Minister for Justice’s consequential decision to deport her on the basis he must provide substantial and specific justification for that to a court. This was “wrong and unnecessary and I fear it will be grossly wasteful of time and resources”.
It had been claimed the Minister failed to properly consider evidence relating to Ms Meadows’s fear of FGM, but part of that evidence was the view of the United Nations High Commission for Refugees that FGM was “a fast dying practice” in Nigeria. Mr Justice Nicholas Kearns agreed with Mr Justice Hardiman and said Ms Meadows’s constitutional rights had been “fully vindicated” by previous hearings, appeals and judicial review options.
He was against “recalibrating” the principles outlined in previous court decisions relating to the test for judicial review, which had “stood the test of time”. He also did not believe the test of proportionality had a role to play in determining whether the court should intervene to quash a decision made after two unchallenged merit-based appeal hearings.
Expansion of the existing criteria for judicial review would represent “a significant hiking up of judicial activism” and, in this case at least, a “quite inappropriate encroachment” into the decision-making functions of the executive. He believed the majority decision would lead to merit-based reviews of ministerial decisions by judges who had “no constitutional mandate” for those.
