The High Court awarded Sebadin Garibov and Neli Garibov their party-and-party costs after the Minister for Justice revoked their deportation orders and granted them temporary leave to remain. The court did not determine whether the challenged decisions were lawful: the applicants sought to withdraw their motion for leave to apply for judicial review, and the judgment addressed the resulting dispute over costs.
The couple had sought leave to challenge deportation notices served on 17 October 2003, following deportation orders made in August that year. Their grounds included claims about family ties, the asylum process and the first applicant’s health. They said he had been treated for cancer of the larynx in Ireland and that returning him to Bulgaria would disrupt his follow-up care. Those were applicants’ claims, not findings on the underlying judicial review.
The judgment recounts medical material submitted before and after the deportation orders. Earlier letters described the first applicant’s need for follow-up checks. Later reports advised that ongoing monitoring by clinicians familiar with his case was important and that deportation at that time would harm his health. The Minister’s file had referred to the cancer being in remission and recorded that the final check-up was scheduled for October 2003. A note endorsed above the Minister’s August 2003 approval said deportation could be held off until that check-up.
In March 2006, the Minister granted each applicant temporary leave to remain until 14 March 2007. The Department later confirmed that their deportation orders had been revoked. The applicants argued that this gave them the principal relief they sought and that they should receive their costs. The respondents maintained that the revocation and temporary leave followed new medical material supplied after the proceedings began, and argued that the applicants should pay the respondents’ costs if they withdrew.
Justice Herbert found, on the affidavit evidence and on the balance of probabilities, that the orders were revoked solely because of the later medical reports. He also found that the decision could have been made in January or February 2004, with no explanation for the delay. He said the court could not predict the outcome of the judicial review without hearing it fully on its merits.
The question for costs was whether starting the proceedings in October 2003 had been reasonable. The judge found that it was, and that the applicants had reasonably persisted. He concluded that the respondents could have made the application redundant in early 2004. In the special circumstances, the applicants were awarded their costs to date on a party-and-party basis. The judgment did not decide the substantive grounds for judicial review.