High Court dismisses applicant's costs claim as proceedings became moot due to applicant's failure to attend removal hearings.

THE HIGH COURT

[2025] IEHC 471

[Record No. 2023 1266 JR]

BETWEEN

AEK

APPLICANT

AND

THE INTERNATIONAL PROTECTION APPEALS TRIBUNAL, THE MINISTER FOR

JUSTICE, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

DECISION of Ms Justice Bolger delivered on the 26th day of August 2025.

1. This is the applicant's application for 50% of the costs of judicial review proceedings and the respondents’ application for the entire costs. The proceedings became moot on 14 March 2024 upon the passage of the six-month deadline for the transfer of a person seeking international protection to the Member State where they had previously made a similar application under the Dublin III Regulation.

The substantive judicial review proceedings

2. The applicant's judicial review proceedings challenged the first respondent's refusal of his appeal against a decision to transfer him to Austria. After leave was granted, the applicant sought to amend his proceedings to seek relief in relation to his then outstanding request for Article 17(1) discretion arising from his relationship with an Irish citizen to whom he was engaged and intended to marry on 8 July 2024. The entire proceedings became moot by reason of the passage of the six-month deadline on 14 March 2024 before the contested application to amend was to be heard. Therefore, the only issue in the judicial review proceedings at the time they became moot was the challenge to the transfer decision.

3. The applicant never sought interlocutory injunctive relief, even though he was given a number of dates to present himself for removal during the relevant period. In the light of the decision of this Court in GT v. IPAT [2025] IEHC 220 which confirmed that a judicial review of an IPO or IPAT decision does not have suspensive effect, it seems unlikely that an interlocutory injunction on that suspensive point would have been successful.

The effect of mootness

4. Depending on how proceedings become moot, a costs liability may arise if the mootness resulted from the unilateral actions of one party (Hughes v. Revenue Commissioners [2021] IECA 5). This jurisprudence was applied to the issue of an asylum seeker’s removal from the State in AA, MI, RO v. Minister for Justice & Anor (Unreported, High Court, 30 January 2025) where O'Higgins J. set out his reasoning for awarding 50% of the costs to the applicants at para. 85 of his decision, including his finding that the applicants secured a benefit from issuing the proceedings and securing an injunction on an Okunade v. Minister for Justice, Equality and Law Reform [2012] IESC 49 basis. He found the proceedings engaged the applicants’ constitutional rights and had they not brought the proceedings, they faced the State's detention powers being used against them.

5. Thus, the law on costs in proceedings that have been rendered moot is clear; there must be an event for costs to follow and the mootness must result from the unilateral actions of one of the parties alongside some causal nexus with the proceedings.

Connection between these proceedings and the event of mootness

6. There is a factual dispute between the parties on what rendered the proceedings moot and who brought that about. The applicant contends that the proceedings have secured his desired outcome i.e., that he has not been transferred to Austria. In effect, he says he has secured a benefit from bringing the proceedings. The respondents contend that the proceedings were rendered moot purely by the passage of time i.e., the six-month time limit that was reached on 14 March 2024 before the applicant was transferred. This, they say, was because the applicant failed to present twice - first on 1 March 2024 at Dublin Airport for a scheduled flight to Austria and again on 11 March 2024 to the Garda National Immigration Bureau (‘GNIB’), failing which the new flight that had been booked for him on 13 March 2024 was cancelled. The applicant says he informed the second respondent that he could not attend on 1 March as he was unwell. He says he was then told that arrangements would be made for the week of 11 April 2024 which he accepted. That turned out to be an error by the second respondent. If that was all that occurred, then blame for the applicant's non-attendance could potentially be laid at the respondents’ door. In fact, a further letter was sent to the applicant on 5 March 2024 directing him to present to the GNIB on 11 March 2024 for updated travel arrangements. The applicant never claimed he did not receive or understand that letter. Neither did his solicitor to whom the letter was copied.

7. In those circumstances, I am satisfied on the evidence that the proceedings became moot by virtue of the passage of time, responsibility for which rests with the applicant who did not attend at the airport for his scheduled flight to Austria or to the GNIB, following which his subsequent scheduled flight was cancelled.

8. The applicant seeks to blame the Minister for not extending the time for the transfer pursuant to Article 29(2). Not only is that a matter of law (case C-163/17 Jawo v. Bundesrepublik Deutschland ECLI:EU:C:2019:218) but it is not appropriate to seek to shift factual blame from the applicant who did not comply with two separate directions to present in order to get a flight to Austria, by reference to something that could have been done by the respondent but was not.

9. This case is therefore entirely different from the factual circumstances in Hughes v. Revenue Commissioners and in AA where a partial costs order was made in favour of the applicant.

Decision

10. For the reasons set out above, I refuse the applicant's application for 50% of their costs. I find the proceedings were rendered moot by the actions of the applicant in failing to present on two occasions before his transfer became time-barred on 14 March 2024.

11. I, therefore, make a costs order in favour of the respondents, to include the cost of this application.

Counsel for the applicant: Eamonn Doran BL. Counsel for the respondents: Sarah-Jane Hillery BL.