IECA 144 · Court of Appeal

AN CHÚIRT ACHOMHAIRC THE COURT OF APPEAL

APPROVED – NO REDACTION NEEDED

Court of Appeal Record Number: 2024/273 High Court Record Number: 2023 1131 JR Neutral Citation Number: [2025] IECA 144 Whelan J. Meenan J. Collins J.

BETWEEN/ GM

APPLICANT/APPELLANT

- AND -

THE INTERNATIONAL PROTECTION APPEALS TRIBUNAL, THE CHIEF INTERNATIONAL PROTECTION OFFICER, THE MINISTER FOR JUSTICE, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

JUDGMENT of Mr. Justice Anthony M. Collins delivered on the 15th day of July, 2025

I. Background to the Appeal

1. On 25 March 2022, the appellant, a national of Georgia, applied for international protection in France, which application was rejected. The appellant thereafter travelled to Ireland, where he made a further application for international protection on 21 September 2022. Following a take-back request from the International Protection Office (hereafter ‘IPO’), on 10 October 2022, France agreed to accept responsibility for the appellant pursuant to Art. 18(1)(d) of Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (recast) (OJEU L 180, p. 31, hereafter ‘the Dublin III Regulation’). On 16 January 2023, the IPO afforded the appellant a personal interview pursuant to Art. 5 of the Dublin III Regulation. On

16 February 2023, the IPO made a decision to transfer the appellant to France (hereafter ‘the Transfer Decision’). On 20 February 2023, the appellant appealed that decision to the International Protection Appeals Tribunal (hereafter ‘IPAT’). In that appeal it was submitted on his behalf that his transfer to France would expose him to a risk of refoulement and would breach Arts. 4 and 7 of the Charter of Fundamental Rights of the European Union (hereafter ‘the Charter’) and Arts. 3 and 8 of the European Convention on Human Rights (hereafter ‘the ECHR’). In support of his appeal, a report was submitted from a Dr. G, an obstetrician/gynaecologist and physiotherapist, in which she claimed that, in the event the appellant was returned to France, he would be at a high/serious risk of suicide. By decision of 20 September 2023, IPAT affirmed the Transfer Decision and dismissed the appeal.

2. On 23 October 2023, the appellant obtained leave from the High Court (Hyland J.) to challenge the validity of the Transfer Decision and IPAT’s decision to affirm it. In the context of those proceedings, and pending their determination, the appellant applied to stay the operation of the Transfer Decision and/or to injunct its execution. On 19 December 2023, the High Court (Hyland J. [2023] IEHC 742) delivered a reserved judgment by which it refused the relief sought. On 12 February 2024, the Minister for Justice, the third named respondent, decided not to exercise the discretion to examine the appellant’s application that Art. 17(1) of the Dublin III Regulation confers upon the State. The appellant was transferred to France on 13 February 2024. On 8 March 2024 the High Court (Hyland J.) gave the appellant leave to enlarge his proceedings by way of judicial review to include a challenge to the validity of the Minister for Justice’s decision of 12 February 2024.

3. The application for judicial review came on for hearing on 20 June 2024. On 20 September 2024 the High Court (Bradley J.) communicated a reserved judgment ([2024] IEHC 579) to the parties in which it both engaged with, and dismissed, all of the appellant’s grounds of challenge to the validity of the Transfer Decision and the decision of the Minister for Justice under Art. 17 of the Dublin III Regulation. On 30 October 2024, the High Court (Bradley J.) delivered its ruling on the costs of the proceedings ([2024] IEHC 718), in which it held that no reason had been shown why it ought to depart from the default position that since they had been entirely successful in the proceedings the respondents were entitled to recover their costs from the appellant.

II. The Appeal

4. On 2 December 2024, the appellant caused to have filed in the Office a Notice of Appeal. This contained nine grounds, presented under four headings: one being that the decision of 12 February 2024 was ultra vires having been made in breach of the Carltona principle. The other three alleged that the High Court had failed (a) to consider the humanitarian grounds that had been advanced on the appellant’s behalf,

(b) to take account of relevant information on the appellant’s mental state and the conditions under which he had been transferred to France and (c) to recognise that the appellant’s transfer to France breached his fundamental rights. These three grounds rested upon an allegation that, due to the conditions that awaited him in France, the appellant’s transfer to that Member State violated his fundamental rights.

5. By Notice received in the Office on 20 December 2024, the respondents contested each ground of appeal. Under the heading “Additional grounds on which decision should be affirmed”, the Notice submitted that: “Part of the basis upon which the Appellant seeks to appeal has become factually incorrect – the Appellant is not in France but is now living outside of the EU in the UK (See letter of 23 October 2024).”

6. On 12 March 2025, the appellant’s legal representatives filed written submissions, para. 2 of which summarised his case in the terms following:

“The Appellant’s case devolves to whether or not the refusal of discretionary relief under Article 17 was ultra vires, whether or not he was transferred in breach of his fundamental right not to be exposed to harm, and whether or not he can be returned to Ireland for processing of his international protection claim.”

7. Paragraph 7 of the said submissions represented that, although the appellant had since left France and was currently in the United Kingdom, his appeal was neither moot nor academic. The balance of the submissions criticised the appellant’s transfer to France and the conditions under which that had occurred. In reliance upon Art. 29(3) of the Dublin III Regulation the appellant asserted a right to be returned to the State. The submissions took no account of the fact that, at the time of their being filed in the Office, the appellant resided in the United Kingdom.

8. Part I of the written submissions that the respondents caused to have filed in the Office on 8 April 2025, headed up “Introduction”, observed that, notwithstanding the appellant’s claim that he was at high risk of suicide upon his return to France, he had been able to make his way from there to the United Kingdom. The respondents further criticised the fact that the only information the appellant had provided in connection with that event was the fact he had changed his state of residence, by reason of which he had breached his obligation to make full disclosure of all relevant information to the Court. The respondents also raised the futility of any order being made in the appeal to return the appellant to the State under Art. 29(3) of the Dublin III Regulation in circumstances where he no longer resided in an EU Member State, and relied upon Art. 19(2) thereof to show that the obligations under Art. 18(1) to take charge or to take back an applicant for international protection cease once that person has left the territory of the Member States for at least three months, unless the Member State responsible issued that person a valid residence document, which fact was unknown. On that basis it was further submitted that the appeal had become moot. The respondents commented that there was no report from either a general practitioner or a psychiatrist to attest to the state of the appellant’s mental health.

9. The appeal came on for hearing on the morning of 28 April 2025 in the presence of Counsel for the parties. The Court raised its concerns as to the want of information as to the appellant’s circumstances, particularly where it had been communicated that he was no longer on the territory of an EU Member State. Given the medical evidence that had been tendered on his behalf, the Court also inquired as to the chain of events that had led the appellant to depart France for the United Kingdom, notably in the light of the report of Dr. G. dated 29 February 2024, which claimed that he had suffered from “serious suicidal ideation” upon his return to France where his “mental and physical health appear to be deteriorating in his current circumstances”. Counsel for the appellant was unable to supply the Court with information as to any of these matters, save that, after exchanges with the Court, he divulged that the appellant had applied for international protection in the United Kingdom, which application had been deemed inadmissible; the United Kingdom authorities were apparently considering whether to send the appellant to France or to Ireland; and that the appellant was currently in Northern Ireland. There was an indication that, on an unspecified date, the appellant may have travelled from France to the United Kingdom by way of a “small boat”: but no evidence was adduced. The Court inquired as to the apparent contradiction between such evidence of “serious suicidal ideation” as might have existed and the appellant’s conduct after leaving the State. Counsel for the respondents pointed to the presence of certain evidential deficiencies and contradictions in such material as the appellant had caused to have had put before the Court, by reason of which he asserted that the appellant had failed to comply with his duty of candour. After hearing Counsel for the parties, the Court rose to consider the position in the light of the limited information before it. Upon resumption, the Court announced that it would reserve its judgment on the preliminary issues that had been raised, notably candour and standing, and concluded the hearing.

10. On the afternoon of the same day, the Office received a letter from the appellant’s solicitors stating that they had sought instructions from their client in the light of the concerns that the Court had expressed in the course of that morning’s hearing. The appellant gave his solicitors instructions to withdraw his appeal and to thank the Court for its consideration of his case. The appellant’s solicitors confirmed they had made him aware of, and advised him as to, the costs implications of his instructions.

11. On the next day, the Office informed the appellant’s solicitors of the Court’s provisional view that, in light of the contents of the appeal and with due regard to the circumstances in which it was prosecuted, the respondents were entitled to an order for their costs (including any reserved costs) of the appeal, to be adjudicated on a legal practitioner and own client basis. In the event the appellant contended for any different order, he had the right to file and serve a written submission of not more than 1,500 words in length setting out the reasons for the Court making a different order within 14 days from 29 April 2025, after which the respondents had a further 14 days in which to respond in writing thereto.

12. The said submissions having been filed on 13 and 21 May 2025 respectively, and there being no application to alter the High Court costs order, this judgment rules upon the costs of this appeal.

III. Ruling on the Costs of the Appeal

13. The parties agree that the principles governing the award of costs on a legal practitioner and own client basis are set out in the summary at para. 54 of the judgment of Barniville J. (as he then was) in Trafalgar Developments Ltd. & Ors. v. Mazepin & Ors. [2020] IEHC 13, as endorsed by this Court in Fitzpatrick v. Behan [2021] IECA 23 per Donnelly J. at para. 14 (Edwards & Haughton JJ. conc.). They recognise this Court’s discretion to order costs on the legal practitioner and own client basis where it wishes to mark its disapproval of, or displeasure at, the conduct of the party against which the costs order is made in relation to any aspect of the conduct of proceedings that the Court considers merits to be marked by its displeasure or disapproval. In considering whether the conduct of a party is such that the Court should exercise that discretion, it should clearly identify the particular conduct of the party which is said to afford the basis for the court exercising its discretion; carefully examine and consider such explanation as the impugned party may offer for that conduct; and carefully consider and examine the consequences of the conduct in question for the other party, whether in terms of delay, costs or any other form of prejudice. It is in the light of that examination that the Court must determine whether, in all the circumstances, it would be appropriate and in the interests of justice to award costs on the legal practitioner and own client basis under R.S.C. Ord. 99, r. 10 (3).

14. The appellant’s appeal is summarised at para. 2 of the written submissions filed on his behalf, reproduced at para. 6, above. It amounted to a claim that the High Court erred in not finding that, by reason of a failure to take account of evidence to show that his fundamental rights would be breached in the event of his transfer to France, the Transfer

Decision had been made in error, which error imposed an obligation on the State to accept the appellant back for the purpose of processing his application for international protection.

15. By letter of 23 October 2024, i.e. prior to filing the Notice of Appeal, the appellant’s solicitors communicated to the respondents the fact that their client had left France and was in the United Kingdom. That fact raised issues as to the possible mootness of the appeal, the appellant’s standing to maintain it and whether any purpose would be served by the orders that he sought to have made. That information was undoubtedly directly material to the adjudication of the issues in this appeal. Had he not communicated that information to his solicitors at that time, the very serious consequences that might have ensued for the appellant could have included both the dismissal of his appeal and the award of the costs against him to be taxed on a higher scale.

16. The respondents responded to that development in the Notice that they filed in the Office on 20 December 2024. The parties’ respective written submissions thereafter sought to engage with the legal consequences of that change in the appellant’s personal circumstances and the respondents took that opportunity to raise issues as to the mootness and the futility of the appeal. Whatever criticism might be levelled at the appellant for prosecuting an appeal in circumstances where it had become potentially moot due to unilateral action on his part, it cannot be said that the respondents were prejudiced since they were afforded the opportunity to address that issue and the futility of allowing the appeal in their written and oral submissions.

17. In R. (ex parte) HM, MA & KH v. Secretary of State for the Home Department [2022] EWHC 2729 (Admin), Edis L.J., speaking for a Divisional High Court, held at paras. 15 and 16 of his judgment as follows:

“The duty of candour in judicial review proceedings is very important. It enables the court to adjudicate on issues involving the state without deciding facts or engaging in disclosure processes. That is because the court assumes that it will be supplied with all the information necessary to determine a case accurately. … The law is summarised in … a document titled guidance on discharging the duty of candour and disclosure in judicial review proceedings created by the Treasury Solicitors Department in January 2010. That contains a great deal of sound advice. … The Treasury Solicitors Guidance, says this:

"The duty of candour applies as soon as the Department is aware that someone is likely to test a decision or action affecting them. It applies to every stage of the proceedings, including letters of response, under the pre-action protocol, summary grounds of resistance, detailed grounds of resistance, witness statements and counsel's written and oral submissions." .

18. Throughout their currency, the parties to this application for judicial review were under a continuing obligation to bring all information relevant to the disposal of this appeal to the Court’s attention, such information to include all material that might lead the Court to decide that the appeal had become moot or futile. It follows that the appellant is incorrect where he seeks to contend that there is no requirement that “…mandates the provision of post-judgment information about an appellant’s whereabouts” in circumstances where the location of that person’s whereabouts may have consequences for the determination of the proceedings. The appellant’s solicitors communicated that information to the respondents in sufficient time to enable the latter to address matters that arose therefrom in the documents that they filed in Court before the hearing. The additional information, that the Court considered ought to have been communicated at the hearing of the appeal, concerned the appellant’s whereabouts as of that date, the approximate dates upon which he had departed from France and had arrived in the United Kingdom, and his state of mind at the time of that voyage in the light of the contents of Dr. G.’s report of 29 February 2024. Whilst the course of exchanges elicited the further information contained at para. 9, above, the confirmation that the appellant had left France and was in the United Kingdom at the date of the hearing, of which the Court and the respondents had been informed, was the key information that the Court would have required had it been called upon to decide upon the mootness and/or the futility of the appeal.

19. The failure to communicate the information that the Court unsuccessfully sought to obtain from the appellant’s representatives amounts to a failure to comply with the duty of candour on the part of the appellant for which he alone appears to have been responsible. The Court expresses its disapproval of the appellant’s conduct in that regard. The explanations tendered for that non-compliance are (a) the appellant constantly presented as a vulnerable person; (b) it would have been challenging for him to have made a foreign language affidavit when he was outside the State; (c) any evidential deficiency could be addressed by this Court ordering the remittal of his application to the High Court. None of these explanations suffice to discharge the appellant’s selfimposed burden. The Court’s inquiries into the appellant’s whereabouts and current state of health were made in order to inform itself as to his alleged vulnerability, which lay at the heart of his case; nothing was offered to support the claim that it would have been challenging for the appellant to have made “a foreign language affidavit” outside the State in circumstances where all of the affidavits made in the proceedings before the High Court were in English and the appellant apparently resides in the United Kingdom; the queries were raised in circumstances where the appellant’s whereabouts impacted upon the Court’s capacity to determine the appeal. The appellant’s lack of candour as to the answers given to the questions put by the Court did not, however, appear to have caused the respondents any prejudice over and above the time and cost incurred when a public authority defends a claim that is ultimately discontinued. The same considerations apply to what could be considered as wasted judicial resources in the preparation for and the hearing of the case: the appellant’s withdrawal of his appeal soon after the conclusion of the hearing was, nevertheless, in ease of the Court.

IV. Conclusion

20. Taking into account all of the foregoing elements, notably the facts that the precise information required to allow the Court to rule upon the mootness and/or futility of the appeal had been communicated in sufficient time to enable the respondents to make written and oral submissions on those issues and that, as a consequence of the decision to withdraw the appeal immediately after the hearing, the Court was not required to deliver a reserved judgment, I propose that the Court, in the application of s. 169(4) of the Legal Services Regulation Act 2015, make the appellant liable to pay the respondents’ reasonable costs incurred in the defence of the appeal on a party and party basis, to be adjudicated in default of agreement.

21. As this judgment is delivered electronically, I am authorised by Whelan and Meenan JJ. to state that they agree with it and the order proposed therein.

Appearances:

For the Applicant/Appellant: Eamonn Dornan BL, instructed by CSHR Solicitors

For the Respondents: Mark J Dunne SC and Sarah-Jane Hillery, instructed by the Chief State Solicitor