The High Court ordered a solicitor to indemnify two minor applicants for the respondents’ costs of a judicial review, finding that the case had been pursued without reasonable cause. The order followed a separate hearing on costs; the court had refused the judicial review at an earlier hearing as misconceived and unstateable.
The applicants, identified in the judgment only as O.J. and T.J., were born in Nigeria and came to Ireland in 2007 to join their mother and Irish sibling. Their mother had arrived in Ireland in 2003 and was granted residency under the IBCO 5 Scheme in May 2007. In January 2008, she attended the Refugee Applications Commissioner’s office and made, or was understood to have made, asylum applications on the children’s behalf. The Commissioner recommended that they not be declared refugees.
The mother later said she had intended family reunification, not asylum. Her solicitor appealed the Commissioner’s report to the Refugee Appeals Tribunal, challenging its substance, and wrote to the Commissioner asking that the children be added to their mother’s case. Judicial review proceedings then sought, among other relief, declarations that no asylum applications existed and that valid family reunification or residency applications had been made.
At the February 2010 hearing, the applicants conceded that they were not claiming asylum. The court said the mother had signed asylum forms and proceeded with interviews on the children’s behalf; it found no evidence that the Commissioner’s office had caused or shared the claimed misunderstanding. The court said the proper course was to tell the Minister that a mistake had been made, withdraw the asylum applications and explain that no decision on the negative recommendation was required. It also noted that family reunification applications under section 18 of the Refugee Act 1996 are made to the Minister and can only be made by a refugee; the mother was not a refugee.
The court said no ministerial decision had been made on the Commissioner’s report because an appeal had been lodged, so there was no need to seek to quash the report. It refused the judicial review and adjourned costs so the solicitor could be given notice of the application for a personal costs order.
In its ruling after a full hearing on 19 April 2010, the court awarded costs to the respondents against the applicants and their next friend. It said the solicitor’s conduct did not amount to gross professional misconduct, but found a clear default in his duty to the court. The court ordered him under Order 99, rule 7 to indemnify the applicants for the costs, once agreed or taxed if not agreed.