About this case:

• Citation:
  [2024] IEHC 164
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Ms Justice Marguerite Bolger

Delivering judgment for the High Court, Ms Justice Marguerite Bolger stated that the applicants “were facing a deportation order which is a significant legal event with dramatic consequences for the first applicant and for his parents”.

“The applicants could have taken their chances in allowing the deportation order to be made and hope it would be revoked as had been indicated in the minister’s correspondence. However, that did not afford the parents of this young infant child the assurances they wanted or needed,” she added.

Background

The first applicant was the infant son of the second applicant and was born in the State. Both applicants made separate applications to the respondent for leave to remain in the State.

The second applicant was granted permission to remain on 7 September 2022 and mistakenly believed that the first applicant was also permitted to remain. The first applicant’s application was refused by the respondent on 10 November 2022 and a deportation order was made on 8 February 2023, but was never served on the applicants.

On 19 April 2023, after the proceedings had been mentioned in court on behalf of the applicants for the purpose of stopping time but before they could make their application for leave to bring judicial review proceedings, the respondent revoked the deportation order pursuant to s.3(11) of the Immigration Act 1999, rendering the proceedings moot.

The applicants maintained that they were entitled to the costs of issuing the proceedings on the basis that it was reasonable to do so in light of the respondent’s confirmed intention to make a deportation order.

The respondent contended that she was not aware of the proceedings when the decision was made and as such, there was no causal nexus between her decision and the proceedings. The respondent also suggested that in a letter of 14 December 2022, she had made it clear that the deportation order would not be enforced as against the first applicant and that he would be granted permission to remain.

The High Court

Ms Justice Bolger firstly examined the letter of 10 November 2022, which stated that the first applicant no longer had permission to remain in the State and was required to return voluntarily to their home country or be deported on foot of a deportation order under s.51 of the International Protection Act 2015.

Turning to the respondent’s letter of 14 December 2022 issued in response to the applicants’ solicitors inquiry as to whether his mother’s permission to remain covered the first applicant, the judge highlighted the reference to the 10 November 2022 letter as having made the applicant aware of the position “vis a vis voluntary return and the making of a deportation order”.

Ms Justice Bolger also emphasised the reference to the mandatory provision in s.51, which “can only be negated by a decision that such an order cannot be made owing to the provisions of s. 50, a step that had not been reached here…”

The court pointed out the respondent’s advice to the applicants’ solicitors that there “may not be a realistic hope for your client family to cling to vis a vis Master JID’s longer-term position in the State. This being the case, Master JID would seem to be on something of an inevitable path towards having a deportation order has been made in respect of him.”

Ms Justice Bolger disagreed with the respondent’s contention that the December letter made it clear that she had no intention of deporting the first applicant, opining that while the correspondence did anticipate the possibility of the applicant securing a right to remain, it did not make “a definitive commitment to that outcome. It makes it very clear that a deportation order will be made, and that whatever steps may be taken to consider a future right to remain will not be taken until after that deportation order is made.”

Considering the reasonableness of issuing the proceedings, the court determined that the applicants were never given an explanation for the respondent’s refusal of permission to remain pursuant to s.49(4) of the 2015 Act, noting: “The minister intended to and ultimately did make a deportation order which the applicants believed was unlawful. I do not consider the applicant could have been reasonably expected to tolerate the making of the order and to wait to see whether their case would be considered under s. 11(3) of the Immigration Act 1999, as the minister had suggested could be expected, particularly given the absence of any explanation for the minister’s refusal to grant permission to remain pursuant to s. 49(4) of the 2015 Act.”

The court considered the principles in Hughes v Revenue Commissioners [2021] IECA 5 in respect of ordering costs in moot proceedings, determining: “The situation does not fall neatly into any of the three propositions set out by Murray J. However, neither did the facts in Hughes… This court’s overriding discretion in awarding costs must take account of whether it was reasonable for the applicant to institute the proceedings in all the circumstances that applied at the time.”

Ms Justice Bolger opined: “The applicants were facing a deportation order which is a significant legal event with dramatic consequences for the first applicant and for his parents. Whilst the legal basis for the minister’s decision that rendered the proceedings moot was different to the applicants’ grounds for their challenge, the net result is the same, i.e. the deportation order was set at nought and the first applicant was given permission to remain.”

The judge continued: “The applicants could have taken their chances in allowing the deportation order to be made and hope it would be revoked as had been indicated in the Minister’s correspondence. However, that did not afford the parents of this young infant child the assurances they wanted or needed and, in circumstances where their infant child’s application to remain pursuant to s. 49(4) had already been refused by the minister without any or adequate explanation about the consideration (if such consideration took place) of the first applicant’s private and family life, including his dependency on his mother who had been given permission to remain in the State.”

Conclusion

Having concluded that it was reasonable for the applicants to issue proceedings, Ms Justice Bolger decided that the applicants were entitled to their costs.

JID (a minor) & Anor v. The Minister for Justice [2024] IEHC 164