The High Court made no order for costs after an Article 40.4.2 inquiry into the detention of an anonymised applicant became moot when she was released from Mountjoy Prison. The ruling addressed only the applicant’s request for costs; the court did not determine the legality of her detention at a substantive inquiry.
The applicant, who claimed to be Sudanese, was detained after arriving at Dublin Airport in September 2021 with a stolen British passport. She later pleaded guilty to related offences in the District Court. The sentencing judge applied the Probation of Offenders Act, noting her stated intention to seek international protection.
The parties gave conflicting accounts of what happened after that hearing. In an affidavit based on the applicant’s instructions, her solicitor said Gardaí intercepted her in Dublin while she was making her way to the International Protection Office, preventing her from seeking asylum. The solicitor said she later told the prison and her lawyers that she wanted to apply for asylum and faced removal the next morning.
Garda Breen gave a different account. She said the applicant had been directed to the protection office, then told Gardaí outside it that she did not wish to apply for asylum and planned to fly to Sudan. According to the Garda, the applicant repeated that position through an interpreter. The applicant was arrested under immigration legislation and arrangements were made to remove her.
On the evening of 22 September, the applicant’s solicitors emailed Mountjoy Prison asserting that her detention was unlawful and seeking an application form and her release. They then applied to the High Court for an inquiry. The court directed that the grounds of detention be certified and that the applicant be produced. The planned removal was halted. By the inquiry’s return date, however, she had been released after making a protection application that the International Protection Office accepted for consideration.
The applicant did not attend the return hearing. The court directed her to file an affidavit and ordered disclosure of custody records and other material, but no further steps were taken and her lawyers said they had no instructions from her. The judge noted that there was no direct evidence from the applicant to support her solicitor’s account or contradict the Garda’s affidavit.
Justice Siobhán Phelan said that if the applicant’s account had been established, the inquiry application could have justified costs. But accepting the uncontradicted Garda evidence, the judge found that the release followed the applicant’s later protection application, not the court proceedings. The inquiry had therefore become moot without an event attributable to those proceedings.
The judge acknowledged the constitutional importance of the Article 40.4.2 remedy and the applicant’s lawyers’ bona fide conduct. She also noted that they had not used the Legal Aid in Custody Scheme and had instead sought a costs order. Given the applicant’s conduct before and during the proceedings, her failure to substantiate her account, and the absence of a connection between the proceedings and her release on the evidence accepted, the court declined to award costs. The order was no order as to costs.