The Court of Appeal has dismissed an appeal by five anonymised Nigerian applicants for international protection against a High Court order awarding them one eighth of their costs in proceedings involving a proposed transfer to the UK.
The appeal concerned costs only. The High Court had ruled on the underlying proceedings in December 2020 and later ordered the applicants to pay the costs of their unsuccessful Court of Appeal appeal, subject to a 14-day opportunity to seek a brief hearing on that issue.
The family arrived in Ireland in April 2017 and applied for international protection. Under the Dublin III Regulation, the UK agreed to examine their applications, and the International Protection Office made a transfer decision in July 2018. The applicants appealed that decision to the International Protection Appeals Tribunal (IPAT). While that appeal remained pending, they also sought the Minister for Justice’s discretion under Article 17 of the regulation to have their applications examined in Ireland.
In October 2020, they began High Court proceedings seeking, among other relief, an order requiring the Minister to decide the Article 17 request and declarations challenging the lawfulness of transfer. During the High Court hearing, the Minister undertook to decide the request by 15 December. The court subsequently rejected the applicants’ arguments about the UK’s impending departure from the EU asylum system and refused the declaration concerning transfer lawfulness. The Minister declined to exercise Article 17 discretion in the applicants’ favour.
The High Court nevertheless treated the Minister’s commitment to decide the request as a limited success for the applicants. It awarded them one eighth of their costs, citing concerns about the timing and presentation of the proceedings, including that they had been started while the IPAT appeal was pending and less than five weeks after the request to the Minister.
The applicants argued on appeal that the commitment had made their main claim moot and that they should receive all, or a greater share, of their costs. The Court of Appeal said they had not been entirely successful: the High Court had decided the substantive issues against them, while the Minister had only committed to making a decision, not to a favourable one. The court also found the High Court was entitled to take account of how the case had been brought and presented.
The Court concluded that the one-eighth award fell within the range reasonably open to the High Court judge and dismissed the appeal. It proposed that the applicants pay the appeal costs, with liberty to apply within 14 days for a supplemental hearing on costs.