High Court clarifies practice direction for immigration and asylum cases

The High Court has issued a number of clarifications of a new practice direction applying to the immigration, asylum and citizenship list after solicitors raised concerns about it.

The direction signed last month by the president of the High Court, Mr Justice Peter Kelly, laid down new rules for cases that include challenges to deportation orders.

Among other requirements, it said that solicitors would in future have to provide details in affidavits of “every statement/representation made by the applicant or by any other member of his/her family . . . to any immigration body in Ireland or other jurisdiction”.

Solicitors acting in such cases wrote to the Law Society last week to say the changes would have "a chilling effect", giving rise to "significant access-to-justice barriers for migrants and their families".

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The society said it would “respond positively” to their request for an urgent meeting to discuss the matter.

‘General duty’

An explanatory note on the practice direction, issued via a court registrar to practitioners on Friday afternoon, said that in view of the “utmost good faith” principle applying to ex-parte (one side only) applications, applicants had a “general duty to put all relevant material before the court”.

It said the purpose of the recent practice direction, known as HC81, was inter alia “to give practical effect to this requirement”.

“The practice direction was adopted following consultations with senior practitioners on both sides of the asylum bar which took place over a protracted period in October to December 2018,” the note continued.

‘Adequacy of disclosure’

This had followed from a number of cases earlier in 2018 where “issues had been raised about the adequacy of disclosure”.

The note said the element of the new direction regarding the need to submit further affidavits in cases initiated prior to January 1st this year would be postponed “pending further clarification”.

Insofar as cases initiated after that date were concerned, the direction was “not intended to exclude the possibility that some materials relating to previous immigration or protection applicants may not be potentially relevant to the particular application now being made”.

Concerns

The note also clarified that the reference to previous applications by family members was to members of “the nuclear family only that is partner and children, or parents/guardians in the case of a minor applicant”.

Barristers voiced concerns over the changes to Judge Richard Humphreys when he heard the asylum list in the High Court last Monday.

The judge said the changes were intended to ensure the court was not “misled” by applicants.