The High Court ordered costs for both sides in a judicial review case brought by a Nigerian family after a deportation order against the father was revoked. The applicants were awarded their costs up to and including the grant of leave to bring the case; the respondents were awarded costs incurred from the date the family was notified of the revocation. Those later costs are to be set off against the applicants’ award.
The case challenged the Minister’s decision to deport the father, who had Irish citizen children. He received a deportation order on 28 October 2009 and began judicial review proceedings on 17 November that year. On 31 May 2011, the High Court granted leave to seek judicial review on the ground that refusing him permission to remain amounted to enforced separation contrary to the European Convention on Human Rights, EU law and the applicants’ constitutional rights.
After the Court of Justice of the European Union’s 2011 ruling in Zambrano, the Minister reviewed cases involving non-EU parents of Irish citizen children. On 29 June 2011, the deportation order was revoked and the father was granted temporary permission to remain for three years, until 6 July 2014. The court found the revocation was driven by the change in law following Zambrano, rather than a change of heart in the family’s particular case or the grant of leave to seek judicial review.
The parties agreed at the November 2012 hearing that the substantive case was moot and that only costs remained to be decided. The applicants argued they should receive the costs of the leave application because the Minister’s action had made the case moot. The respondents argued that the Zambrano ruling was an external intervening event and opposed an order for the applicants’ costs; they also sought their costs for the period after the case became moot.
Justice M. Clark held that the proceedings became moot when the applicants received written notice of the revocation. By then, the deportation order had been quashed, so there was nothing further the family could obtain by continuing the challenge. The court said the Minister’s decision was prompted by the external change in law, rather than a unilateral act for costs purposes.
The judge nevertheless awarded the applicants their costs through the grant of leave. She ordered the respondents’ costs from 7 July 2011, when the case first appeared in the post-leave list, to be set off against that award. The court said continuing to pursue a hearing after notification of the revocation caused unnecessary costs and took up a hearing date that could have been used by another case. The judgment did not determine the underlying deportation challenge on its merits.