The High Court has awarded costs to two of three applicants in a judicial review of a decision refusing to revoke a deportation order. It also certified one question of law for appeal and stayed its earlier order quashing the decision, along with the costs order, pending appeal proceedings.
In a ruling delivered on 2 December 2022, Ms Justice Phelan considered the applicants’ costs application and the Minister for Justice’s application for a certificate of leave to appeal. The ruling followed a judgment delivered on 27 July 2022, which quashed the Minister’s 28 June 2021 refusal to revoke a deportation order made against the first applicant on 26 June 2019.
The Minister argued that the applicants had succeeded on only one of several grounds and should receive only part of their costs. The judge rejected that approach, saying the applicants had obtained the main relief they sought and the unsuccessful arguments had not materially prolonged the hearing. She also considered the Minister’s concern about the first applicant’s conduct towards departmental officials. She said it was serious enough that she would have considered reducing his costs if he were a sole or separately represented litigant. But because the three applicants shared legal representation, reducing the award could unfairly affect the other two, whom she considered innocent of wrongdoing.
The court therefore awarded the second and third applicants their full costs, including reserved costs, to be adjudicated if the parties could not agree. It made no order for the first applicant’s costs, citing his conduct and expressing strong disapproval of abusive correspondence to officials.
The Minister sought certificates on two proposed questions concerning Article 42A of the Constitution and deportation decisions involving an Irish citizen child. The judge refused to certify the question about whether a statutory review application must treat the child’s best interests as paramount under Article 42A. She said she had not decided that point in her earlier judgment and that the best-interests requirement was already established on other legal grounds.
She did certify a reformulated question: whether the High Court erred in finding that Article 42A.1 applies to deportation decisions concerning a non-national with an Irish-born citizen child living in the State. The judge said conflicting High Court decisions had created uncertainty on that issue, which was of exceptional public importance and should be clarified on appeal.
Pending the appeal, the court stayed both the earlier order quashing the Minister’s decision and the costs order made in this ruling. The Minister undertook to take no further steps to remove the first applicant until the matter’s first listing before the appellate court. The court made no costs order for the certificate application, which the applicants had opposed successfully enough to narrow and reformulate the certified question.