The Court of Appeal has dismissed an appeal by three anonymised appellants who sought to overturn a High Court decision making no order as to costs after their judicial review proceedings became moot. The appeal court also made no order on the appeal itself, while indicating provisionally that appeal costs should follow the event.
The judicial review followed the arrest and detention of the first appellant, a Mauritian national, who was subject to a deportation order. His partner, the second appellant, is a Polish citizen, and their child is the third appellant. After his arrest, applications were made to revoke the deportation order, obtain residence as a permitted family member under EU free-movement rules, and seek permission to reside on another basis. The Minister had refused several requests for an undertaking not to deport him.
On 2 July 2018, a High Court judge granted leave for declaratory relief on limited grounds but refused leave to seek injunctions preventing deportation. Four days later, the Minister undertook not to deport the first appellant while his revocation application was considered, and he was released from custody. The undertaking ended when the deportation order was revoked on 9 October 2018. In December, the Minister recognised him as a permitted family member and granted a residence card.
The appellants argued that the July undertaking was a change of position caused by the proceedings and should count as the event that made them moot, supporting an award of costs. The Minister argued that the proceedings remained live until the residence decision, which would have been made in the ordinary course regardless of the court case.
The Court of Appeal said the undertaking did not resolve all the issues because the appellants continued the case and still sought a declaration about the first appellant’s legal right to reside based on his family relationships. It held that the proceedings became moot only when the Minister granted residence in December. The court found no causal link between that decision and the judicial review: it would have been made on the applications and evidence in the ordinary way.
The court therefore upheld the High Court’s decision to make no order as to costs and dismissed the appeal. Separately, it stated a provisional view that the costs of the appeal should follow the event. Either side may seek a brief supplemental hearing within 21 days; if no application is made, an order in those terms will follow.