The High Court has awarded costs to two international protection applicants whose judicial review proceedings became moot after the statutory time limit for executing their return orders expired, holding that the proceedings were rendered academic due to the Minister's unilateral inaction.
Each applicant had challenged a return order requiring their removal from the State to a third country. Both obtained leave to seek judicial review, but before the cases could be determined, the six-month statutory period for executing the return orders under section 51C(2) of the International Protection Act 2015 expired, rendering the proceedings moot.
The respondents argued that the proceedings had become moot by operation of law and should therefore be struck out with no order as to costs. The applicants contended that the Minister's failure to execute the return orders within the statutory period was the reason the proceedings became academic and that they were entitled to recover their legal costs.
Delivering an ex tempore judgment, Mr Justice Anthony Barr found that the evidence disclosed no particular difficulty preventing execution of the return orders. While the respondents outlined the logistical and administrative steps involved in carrying out removals, the court noted that both applicants had complied with reporting requirements and that no explanation had been provided for the Minister's failure to execute the orders within the statutory timeframe.
The Court concluded that the proceedings had become moot due to the Minister's "unilateral inaction" rather than any action on the part of the applicants or an external event. In those circumstances, the applicants were entitled to recover their costs incurred up to the date on which the proceedings became moot.
Addressing earlier High Court decisions in which applicants were awarded only 50% of their costs in similar circumstances, Mr Justice Barr considered those cases distinguishable. He observed that they appeared to have been influenced by a Court of Justice of the European Union ruling that interim injunctions preventing transfers did not suspend the running of the statutory time limit, an external factor not present in the instant proceedings.
The High Court accordingly awarded the applicants their costs up to the date on which the judicial review proceedings became moot.