High Court refuses security of costs for judicial review of deportation order due to applicant's impecuniosity and special circumstances.

THE HIGH COURT

[2025] IEHC 473

[Record No. 2025 367 JR]

BETWEEN

GT

APPLICANT

AND

THE INTERNATIONAL PROTECTION APPEALS TRIBUNAL, THE CHIEF

INTERNATIONAL PROTECTION OFFICER, THE MINISTER FOR JUSTICE AND THE COMMISSIONER OF AN GARDA SÍOCHÁNA RESPONDENTS JUDGMENT of Ms. Justice Marguerite Bolger delivered on the 26th day of August 2025.

1. This is the respondents’ application for security of the costs in the amount of €15,000 in relation to the applicant’s application for leave to judicially review “both the decision of the IPO of 18 February 2025 refusing his application pursuant to s. 22 of the International Protection Act 2015 for the Minister’s consent to make a subsequent application for international protection, and the decision of IPAT of 13 March 2025, refusing his appeal” (GT v. IPAT & Ors [2025] IEHC 220, para. 2). The application is due to be heard on notice to the respondents.

2. The applicant is currently residing outside of the jurisdiction having been deported in March 2025 pursuant to a deportation order of 31 May 2023. The applicant unsuccessfully sought to injunct that deportation and that is the subject of a written judgment of this Court of 28 March 2025 (GT v. IPAT & Ors [2025] IEHC 220) which sets out at paras. 5 and 6 the

factual background to the judicial review proceedings. The injunction sought was refused due to, inter alia, the option that the respondent confirmed during that hearing would be available to the applicant if he succeeded in his judicial review proceedings after having been deported from the State, as set out at para. 20 of my judgment as follows:

“[T]he applicant, if successful in his judicial review proceedings and subsequent fresh application to the IPO or IPAT, could apply under s. 3(11) of the 1999 Act for revocation of the deportation order, which would be expected to be successful absent national security or criminality issues (neither of which have ever been alleged against this applicant in any of his applications pursuant to the 2015 Act). The applicant could then either apply for a visa to travel lawfully to the State or, alternatively, might attempt to travel to the State without a visa. Once the applicant presents himself at the frontiers of the State, he could process any further application for international protection that may be available to him depending on the outcome of the within substantive judicial review proceedings and any subsequent remitted s. 22 application. For the avoidance of doubt, I wish to make it clear that these are simply observations of what could arise in the event of a successful judicial review and subsequent application upon remittal and are not to be taken in any way as restricting the independent decision-making in any yet to be determined process.”

3. The respondents seek an order for security for costs pursuant to O. 29, r. 1 of the Rules of the Superior Courts and rely on the applicant's conduct in not challenging decisions when made and what they describe as the applicant’s drip-feeding approach, as a result of which they believe the applicant will seek to ignore any costs ultimately made against him. The applicant accepts, for the purpose of this application, that he is currently residing outside the jurisdiction and accepts that the respondents have a prima facie defence to the judicial review proceedings. However, the applicant contends that this Court must balance the respondents’ right to costs in the event of his judicial review being unsuccessful, against his right to access the courts. He submits there are special circumstances in this case that tilt the balance of justice against the granting of an order for security for costs, including that the sum sought, which he acknowledges represents less than the likely amount of a full costs order, would nevertheless represent an absolute bar to an impecunious applicant such as he is, who seeks to challenge an impugned decision. Granting security for costs would exclude any benefit for him in having the impugned appeal quashed and reconsidered.

Decision

4. The fact of the applicant’s residence outside the jurisdiction does not automatically entitle a respondent with a bona fide defence to an order for security for costs. The court must determine “which course of action runs the least risk of injustice” (as per Clarke C.J. in Quinn Insurance Limited v. PricewaterhouseCoopers [2021] IESC 15 at 9.1). In an asylum case such as this is, one of the criteria the defendant must meet is that the exercise of the court’s discretion must favour the making of the order (as per Humphreys J. in AK (Somalia) v. Minister for Justice [2018] IEHC 434). That is not to say that an asylum case will never involve an order for security for costs. Such an order might be more readily made at the appeal stage, as occurred in Mukovska v. Minister for Justice [2021] IECA 340 where the applicant was required to provide security for costs for her appeal from the High Court’s refusal of the relief sought. That is a different context to the preliminary point where this case currently rests. In AK, Humphreys J. concluded:- “For broader systemic reasons I would be slow to encourage such developments, whether related to this or other types of purely procedural preliminary motion.”

5. In Cyr v. Planitas Airline Systems limited [2023] IEHC 149, the applicant came to be resident outside the jurisdiction following the termination of his employment with the respondent company, but had he remained in the country and initiated proceedings, Sanfey

J. acknowledged it was unlikely that an order for security of costs could have been made against him. Having pointed out that the court had discretion to take account of special circumstances which affect the justice of the matter in deciding whether to order security, Sanfey J. concluded that the greater injustice would be to make an order for security for costs which would prevent the applicant from proceeding with the matter and having his grievances determined at trial.

6. In this case, I consider that there are special circumstances. The applicant was resident in the jurisdiction at the time he initiated his proceedings but was no longer resident in the jurisdiction once he was deported. Given that the decisions he wishes to challenge go to the underlying legality of his deportation, it would cause a greater injustice if the fact of deportation and the consequent residence outside the jurisdiction, was to, in effect, preclude him from proceeding with a challenge to the situation that led to his deportation. In addition, I am mindful of the assurances given by counsel on behalf of the respondent during the applicant’s injunction to restrain his deportation, on which this Court relied at least in part in refusing the injunction sought, that the applicant would be able to apply under s. 3(11) for revocation of the deportation order and take any such further steps, as per the extract from my decision above at paragraph 2.

7. I am satisfied that the applicant’s circumstances, including his impecuniosity and his inability to provide the security for costs, is such that to impose the security sought would in effect determine his judicial review proceedings and prevent him from challenging the deportation order that has led to him residing outside of the jurisdiction and from exercising the options potentially available to him in the event of a successful judicial review and on which the decision to refuse the injunction was, in part, based. There is, therefore, a greater risk of injustice in making an order for security for costs which would prevent the application for leave to seek judicial review reliefs. I, therefore, refuse the respondents’ application for security for costs.

Indicative view on costs

8. As the respondents have failed in their application for security for costs, my indicative view on costs is that the applicant is entitled to his costs. I will put the matter in at 10am on 16 October 2025 for final orders in relation to this application and case management of the application for leave.

Counsel for the applicant: Anthony Hanrahan SC, Siobhan Clabby BL. Counsel for the respondents: David Conlan Smyth SC, Sarah Cooney BL.