The Court of Appeal has dismissed appeals by six anonymised applicants seeking their legal costs in judicial review cases concerning transfers under the EU Dublin III Regulation. The court upheld the High Court’s decision that each side should bear its own costs in the underlying proceedings, while declining to interfere with the High Court’s order that the applicants pay the costs of the costs applications there.
The cases challenged decisions by the International Protection Appeals Tribunal (IPAT) affirming transfers of the applicants’ international protection claims to other EU states. Their central argument was that refugee decision-making bodies, including IPAT, could exercise the discretion under Article 17 of the Regulation to allow Ireland to examine a claim even when another member state was responsible.
In July 2020, the Supreme Court decided in NVU v Refugee Appeals Tribunal that the Article 17 power rested with the Minister and had not been delegated to the tribunal or other agencies. The Court of Appeal said that ruling meant the applicants’ principal claims were bound to fail. It clarified that NVU did not itself make the cases moot: they remained live disputes until the Minister later exercised the discretion in their favour, making them moot.
The Minister announced on 30 July 2020 that she would assume responsibility for processing the international protection claims of applicants on the holding list, including these six. The Court of Appeal said the resulting benefit could not create an entitlement to costs for proceedings whose central legal premise had already been conclusively rejected. It also rejected arguments that hypothetical amendments, secondary grounds in some cases, or the Minister’s earlier change of position justified a costs award.
The court dismissed all six appeals. It refused a request by three applicants to refer a question about EU law and costs to the Court of Justice of the European Union. On the costs of the appeals themselves, the court’s preliminary view was that there should be no order. It directed that either party could challenge that view by notifying the Court of Appeal Office within ten days, in which case a hearing would be convened. The judgment does not record a final determination of appeal costs.