The High Court has refused Saim Shaheen Khan and Gaelle Sauron leave to appeal a ruling that dismissed their judicial review proceedings, after a deportation order against Khan was revoked and the case became moot.
Mr Justice Richard Humphreys delivered the judgment on 22 October 2019. The original proceedings sought, principally, an injunction preventing Khan’s deportation. They had been dismissed on 25 September 2019.
Counsel for the applicants proposed questions said to be of exceptional public importance, concerning whether the original ruling was substantively correct. The judge said that even if the proposed questions raised significant EU law issues, this case was not a suitable vehicle for an appeal. The deportation order had been revoked on 18 October, after Khan was recognised as a permitted family member, and counsel acknowledged the case was moot.
The judge also noted that Khan had not challenged either the deportation order or the refusal of a review application. He concluded that the public interest did not favour granting leave and dismissed the application. The judgment did not determine the proposed questions on appeal.
The court then reopened the costs issue after the judge concluded that a misunderstanding had occurred at an earlier hearing. A costs order in favour of the Minister had been made on 21 October but had not been perfected. After consulting the digital audio recording, the judge accepted that counsel for the applicants had intended to make submissions on costs and directed that the earlier order not be perfected.
The applicants sought costs, arguing that the proceedings became moot because the Minister revoked the deportation order. The judge said the revocation was not causally connected to the proceedings and found no basis to award costs to the applicants. The Minister also sought costs, relying on the fact that the court had decided the merits before the case became moot.
The judge ultimately ordered no costs for either the substantive hearing or the leave application. He said the usual rule that costs follow the event could be modified in a moot case, and considered that awarding costs against the applicants could unfairly burden them after the case became moot partway through its course.