Background
Both applicants received Return Orders directing their removal from Ireland to third countries. Each applicant instructed solicitors and counsel to bring judicial review challenges to these removal decisions in the High Court. Both obtained leave to proceed with the judicial review applications. However, during the pendency of the proceedings, the six-month statutory period for executing the Return Orders expired without the Minister having executed them, rendering the proceedings moot.
The Minister’s legal team proposed that the proceedings be struck out with no order as to costs, arguing that the mootness resulted from the operation of law (expiry of the statutory period) rather than any action by the applicants. The applicants contended they should recover their costs on the grounds that the mootness resulted from the Minister’s unilateral failure to execute the Return Orders during the validity period.
The Court’s Holding
Justice Barr held that the applicants were entitled to recover their full costs. The court applied established principles from Hughes v Revenue Commissioners [2021] IECA 5, which establishes that where mootness arises from a unilateral act of one party (or, in this case, unilateral inaction), costs should ordinarily follow in favor of the other party. The key question is whether the mootness was caused by a unilateral act with a causal nexus to the proceedings or by circumstances outside the control of both parties.
Justice Barr found that the Minister’s failure to execute the Return Orders during their validity period constituted unilateral inaction. The applicants had cooperated fully with the process, attending all required appointments with immigration authorities. No impediment or explanation was placed before the court accounting for the Minister’s failure to execute the orders. The court rejected the respondent’s assertion that the mootness resulted merely from operation of law, concluding instead that it resulted from the Minister’s conscious or negligent failure to act. This distinguished the case from situations where a statutory body makes a new decision in changed circumstances.
Importantly, the court awarded full costs rather than the 50% costs awarded in comparable cases (AA v Minister for Justice and AH v Minister for Justice), noting that those cases involved an extraneous event—a CJEU decision—affecting the six-month limitation period. In the present cases, no such extraneous event existed; the applicants conducted themselves appropriately throughout, and the mootness resulted solely from ministerial inaction.
Key Takeaways
- A statutory body’s failure to execute a lawful order during its validity period may constitute a “unilateral act” for purposes of costs in moot judicial review proceedings, distinguishing it from mootness by operation of law alone.
- Applicants who obtain leave to proceed in judicial review and conduct proceedings appropriately may recover costs if mootness results from the respondent’s inaction, even without obtaining an injunction.
- Where the respondent claims mootness resulted from changed circumstances or external events, the burden falls on the respondent to place evidence before the court substantiating that claim.
- The applicants’ good faith cooperation with immigration authorities and compliance with procedural steps weighs against any suggestion they acted improperly or should bear costs.
Why It Matters
This decision provides important clarification for vulnerable applicants facing removal or transfer orders who need to know whether pursuing judicial review will leave them bearing substantial legal costs if the underlying order lapses. By recognizing that ministerial inaction can constitute a unilateral act warranting a costs order, the court removed a potential disincentive to accessing judicial review. This is particularly significant in immigration proceedings, where applicants are often in precarious circumstances.
The judgment also establishes a clear framework for distinguishing between mootness arising from genuine changed circumstances (where no order for costs may be appropriate) and mootness arising from a party’s failure or refusal to act (where costs should ordinarily follow). This balance protects both applicants’ access to justice and the operational autonomy of statutory bodies, while preventing those bodies from effectively conceding claims while avoiding the costs consequences of doing so through simple inaction.