The High Court made no order on costs in a judicial review case that became moot after the Minister for Justice granted a Malawian mother permission to remain in Ireland with her Irish citizen son.
Mr Justice David Keane said the decision was made when the mother’s application reached the top of the Department’s queue, which was processed in chronological order. On the evidence before him, it was not made in direct response to the proceedings.
The case concerned Maria Lufeyo and her son, Tayedza Luke Kasuwanga, who was born in Ireland in July 2015. In September that year, Lufeyo applied for permission to reside in the State as the parent of an Irish citizen child, relying on the EU law principle in the Zambrano case.
The judgment records that the Department sought further documents about the child’s residence, Lufeyo’s role in his life and her relationship with his father. Lufeyo’s solicitors supplied records and letters, including material concerning the child’s healthcare and the family’s circumstances.
In May 2016, the Department told her representatives that it could not give a decision date, but said a decision could reasonably be expected by 20 August if the file was complete and there were no criminality issues. Ten days after that letter, the applicants sought leave to bring judicial review proceedings for an order requiring a decision. The court was told that leave was granted on 30 May, although Justice Keane said a copy of that order had not been produced.
On 22 June 2016, the Department granted Lufeyo permission to remain until 22 June 2019. The proceedings seeking a decision therefore became moot. The applicants later sought their costs.
The Minister’s evidence was that the application had been considered in its normal turn and that the proceedings had no effect on its processing. The judge accepted that evidence. He concluded that there was no event to which the general rule that costs follow the event could be applied, and that it would be inappropriate to treat the proceedings as having become moot through the Minister’s unilateral action.
Justice Keane also said he could not decide the costs application by assessing whether the underlying judicial review would have succeeded. He considered, hypothetically, whether mandamus would have issued and said it would not have, pointing to the evidence provided, the absence of demonstrated urgency or prejudice, and the stated queue system. But he said that was not the governing test for this costs application.
The court addressed the applicants’ arguments about EU rights and a six-month decision period, rejecting the claim that the Zambrano application carried the same six-month deadline as a residence-card application under separate EU free-movement rules. The court’s order was limited to costs: it made no order on them and did not determine the merits of the original challenge to delay.