JR295's Application (Leave stage)
| Jurisdiction | Northern Ireland |
| Judge | Humphreys J |
| Judgment Date | 12 February 2024 |
| Neutral Citation | [2024] NIKB 7 |
| Date | 12 February 2024 |
| Court | King's Bench Division (Northern Ireland) |
1
Neutral Citation No: [2024] NIKB 7
Judgment: approved by the court for handing down
(subject to editorial corrections)*
Ref: HUM12421
Delivered: 12/02/2024
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
___________
KING’S BENCH DIVISION
(JUDICIAL REVIEW)
___________
IN THE MATTER OF AN APPLICATION BY JR295
FOR LEAVE TO APPLY FOR JUDICIAL REVIEW
AND
IN THE MATTER OF THE ILLEGAL MIGRATION ACT 2023
___________
Jude Bunting KC and Robert McTernaghan (instructed by Phoenix Law) for the Applicant
Tony McGleenan KC, Philip McAteer and Terence McCleave (instructed by the Crown
Solicitor’s Office) for the Proposed Respondent
___________
HUMPHREYS J
Introduction
[1] The applicant in this application for leave to apply for judicial review is a 16
year old asylum seeker from Iran who arrived into the United Kingdom as an
unaccompanied child. He had travelled from France by small boat and claimed
asylum on 26 July 2023.
[2] The applicant makes the case that he would be killed or sent to prison if
returned to Iran. He is currently residing in a children’s home in Northern Ireland.
[3] In an amended Order 53 Statement, the applicant seeks to challenge certain
provisions of the Illegal Migration Act 2023 (‘IMA’) on two discrete bases:
(i) That the statutory provisions are incompatible with article 2 of the Northern
Ireland Protocol or Windsor Framework (‘WF’), as implemented by section 7A
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(ii) That the same provisions are incompatible with articles 3, 6 and/or 8 of the
Rights Act 1998 (‘HRA’).
The NIHRC Challenge
[4] On 10 October 2023 Colton J granted leave to the Northern Ireland Human
Rights Commission (‘NIHRC’) to apply for judicial review in respect of the following
provisions of the IMA:
(i) Examination of asylum claims - section 2(2-6) and section 5(2)
(ii) Effective remedy – section 5(2) and section 54
(iii) Removal – section 2(1), section 5(1) and section 6
(iv) Non refoulement – section 2(1), section 5(1) and section 6
(v) Detention – section 13(4)
(vi) Trafficking – section 22(2-3) and section 25(2)
(vii) Children – section 2(1), section 5 (1-2) and section 6
[5] The relief sought by the NIHRC in that challenge includes a declaration that
the relevant provisions breach article 2(1) of the WF, a declaration of incompatibility
pursuant to section 4 of the HRA and an order disapplying the specified provisions.
[6] The court heard the full substantive judicial review challenge between 29 and
31 January and has reserved judgment.
The JR 295 Challenge
[7] At the same time, the court considered the leave application in the instant case.
The refined pleaded claim seeks to impugn sections 2 and 5 of the IMA on similar
grounds to the NIHRC challenge. However, the following additional statutory
provisions are also the subject of these proceedings:
(i) Section 4 which deals with unaccompanied children;
(ii) Sections 16-20 which concern accommodation and support for unaccompanied
children; and
(iii) Section 57 in relation to age assessments.
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