The Supreme Court ruled that the Minister for Justice and Equality should receive 50% of the costs of both the appeal and the High Court proceedings, subject to deductions for costs arising from a standing issue and the unnecessary joinder of an EU citizen as a notice party.
The ruling followed a leapfrog appeal by the Minister against a High Court order granting certiorari of the Minister’s refusal to treat Muhammad Uzair Pervaiz as a permitted family member of a Union citizen under regulations implementing the Citizens Directive.
Two issues had been before the Supreme Court. The Minister lost on whether Mr Pervaiz had standing to bring the proceedings without his EU citizen partner being joined as a party. The standing issue required a case management direction, and the partner was joined as a notice party for the argument; the Court had not then been in a position to decide the issue.
The appeal also concerned how the Minister should assess an application by a third-country national claiming permitted family member status because of a durable relationship with an EU citizen. Mr Pervaiz’s counsel argued that the 2015 Regulations did not properly transpose the Citizens Directive. The Supreme Court’s decision set aside the High Court order, holding that the High Court had been correct on the transposition argument and that the Minister’s test was neither vague nor uncertain and had not involved a fettering of discretion.
In the costs ruling, the Minister argued that it should receive its costs because the High Court decision had been reversed. Mr Pervaiz argued that the judgment clarified the law and that the case met the test for a “test case”. The Court noted that three other judicial reviews in the High Court immigration list might have been affected, but said that clarification of the law and general public importance alone did not justify awarding costs to Mr Pervaiz or refusing the Minister’s application.
The Court nevertheless took account of Mr Pervaiz’s success on standing and its view that the application form under the Irish regulations lacked clarity. It ordered the Minister to receive half of the costs of the High Court and Supreme Court proceedings, reduced to reflect the proviso that Mr Pervaiz was entitled to the costs of the case-management hearing on standing and any costs incurred by the unnecessary joinder of the EU citizen as a notice party.