Judgment: 2021-03-03 · Court archive

High Court makes no costs order in moot Article 17 judicial review

The court found a Supreme Court ruling had made the applicant’s case moot before the Minister exercised discretion in his favour.

High Court · [2021] IEHC 147

Who, what, where, when and why

Who
  • FA (Applicant)
  • International Protection Appeals Tribunal
  • Minister for Justice
  • Ireland
  • Tara Burns (Judge)
What

The court found a Supreme Court ruling had made the applicant’s case moot before the Minister exercised discretion in his favour.

Where

Places mentioned in the report

  • Ireland
  • United Kingdom
When

Judgment:

Other dates in the report
  • 30 June 2015

    The applicant, identified as FA, had applied for asylum in Ireland on 30 June 2015. The United Kingdom had agreed to take charge of his application because he had previously held permission to remain there. The Office of the Refugee Applications Commissioner issued a transfer decision in May 2016, which was affirmed on appeal by the International Protection Appeals Tribunal in March 2017.

Why

Reasons reported in the judgment

The High Court made no order as to costs after finding that a judicial review concerning Article 17 of the Dublin III Regulation had become moot. The court held that the Supreme Court’s decision in a separate lead case had removed any live dispute before the Minister later decided to allow the applicant to remain in Ireland while his international protection claim was processed.

The High Court made no order as to costs after finding that a judicial review concerning Article 17 of the Dublin III Regulation had become moot. The court held that the Supreme Court’s decision in a separate lead case had removed any live dispute before the Minister later decided to allow the applicant to remain in Ireland while his international protection claim was processed.

The applicant, identified as FA, had applied for asylum in Ireland on 30 June 2015. The United Kingdom had agreed to take charge of his application because he had previously held permission to remain there. The Office of the Refugee Applications Commissioner issued a transfer decision in May 2016, which was affirmed on appeal by the International Protection Appeals Tribunal in March 2017.

The applicant sought judicial review, arguing in part that the tribunal should consider whether Ireland would exercise its discretion under Article 17 to examine his application. The High Court granted leave in March 2017, and the case was placed on a holding list pending the lead proceedings in NVU v Refugee Appeals Tribunal.

In July 2020, the Supreme Court ruled in NVU that the Article 17 discretion could be exercised only by the Minister for Justice, and had not been delegated to the international protection bodies. The judgment governed the relief sought in FA’s case, Justice Tara Burns said: the High Court could not grant the declarations or quash the tribunal’s decision on the grounds advanced.

The Minister subsequently exercised Article 17 discretion in favour of applicants on the holding list, including FA, allowing them to remain in Ireland for their protection claims to be processed. Both sides accepted that the proceedings were moot, but disagreed about why. The applicant sought his costs, arguing that the Minister’s decision had brought the case to an end. The respondents argued that the Supreme Court judgment was the cause and sought costs against him.

Justice Burns concluded that the Supreme Court ruling had already removed any controversy the High Court could determine. The case became moot before the Minister exercised discretion in FA’s favour. She rejected the argument that the applicant could continue with the judicial review or amend it to pursue different arguments, citing the binding effect of precedent.

The judge acknowledged that the Minister’s change of position had caused confusion and that the Article 17 litigation had taken a long time. But the favourable decision allowing applicants to remain in Ireland did not result from a court ruling in their favour, she said. The court made no order as to costs; it did not award costs to either side.

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