Delivering an ex tempore judgment for the High Court, Mr Justice Barr held that applicants whose judicial review proceedings became moot following the expiry of return orders were entitled to their costs, where the proceedings had become moot due to the Minister’s “unilateral inaction”.
The applicants had each been served with return orders informing them that they would be removed from the State to a third country. The first applicant obtained leave to challenge the return order by way of judicial review on 2 September 2025, while the second applicant obtained leave on 15 September 2025.
The first applicant’s proceedings became moot on 8 November 2025 when the six-month statutory time limit for executing the return order under s.51C(2) of the International Protection Act 2015 expired. The second applicant’s proceedings similarly became moot on 5 December 2025 following the expiry of the statutory period.
The Chief State Solicitor subsequently wrote to the applicants’ solicitors proposing that the proceedings be struck out with no order as to costs on the basis that they had become moot. The applicants argued that they were entitled to their costs because the proceedings had become moot as a result of the Minister’s failure to execute the return orders within the statutory period.
The respondents contended that the proceedings had become moot by operation of law and that this could not properly be characterised as a unilateral act or omission on the part of the Minister.
In considering the issue, the High Court examined affidavit evidence concerning the process for executing return orders. The respondents explained that execution was an operational matter conducted by the Minister in conjunction with the Garda National Immigration Bureau (GNIB), involving a number of administrative and logistical arrangements, including organising GNIB escorts, booking flights and arranging any necessary medical staff.
The court noted, however, that there was no indication in the respondents’ evidence of any particular difficulty encountered in executing either applicant’s return order. In the case of the first applicant, the respondents accepted that he had attended his initial appointment with the GNIB on 3 June 2025 and had complied with subsequent appointments on 9 July 2025 and 7 October 2025.
Mr Justice Barr noted that no explanation had been provided as to why the Minister had not executed the return order before the statutory period expired. He was therefore satisfied that the proceedings had become moot due to the “unilateral inaction” of the Minister.
The court also considered the respondents’ reliance on AA v Minister for Justice and AH v Minister for Justice, in which applicants whose proceedings had become moot were awarded 50% of their costs. Mr Justice Barr observed that it was not entirely clear why the costs awards in those cases had been limited to 50%.
The court considered that the difference may have arisen from the circumstances of those cases, in which the applicants had obtained injunctions preventing the execution of transfer orders. Following a decision of the Court of Justice of the European Union, the granting of such an injunction did not stop the running of the statutory six-month period, meaning that the orders expired before they could be executed.
Mr Justice Barr considered that the CJEU decision could be regarded as an “extraneous event” which may have justified the reduced costs awards in AA and AH.
In the present case, however, there had been no such extraneous event and there was no suggestion that either applicant had acted in a manner which would disentitle them to their costs.
Accordingly, the High Court awarded the applicants their costs up to the date on which their respective judicial review proceedings became moot.