High Court dismisses judicial review as moot because applicant's expulsion stems from misbehavior, not lack of status.

THE HIGH COURT

[2025] IEHC 478

[Record No. HJR 2024/846]

BETWEEN

ALEXANDER DASHEVSKY

APPLICANT

AND

INTERNATIONAL PROTECTION ACCOMMODATION SERVICES, THE

MINISTER FOR JUSTICE, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

JUDGMENT of Mr Justice Barr delivered electronically on the 5th day of August 2025.

Introduction.

1. The essential point in this judicial review application is whether the applicant has a right to be provided with accommodation notwithstanding that he has obtained a grant of subsidiary protection.

2. The applicant submits that because he had appealed the refusal of a declaration of refugee status, which decision was affirmed on appeal, but in respect of which

decision he has instituted proceedings by way of judicial review challenging the legality of that decision; he is entitled to be regarded as being an applicant for international protection within the relevant Irish regulations, being the European Communities (Reception Conditions) Regulations 2018 (S.I. 230/2018).

3. In the alternative, it is submitted by the applicant that if the Irish regulations do not provide him with such an entitlement to accommodation, he is entitled to a declaration that the provisions of Council Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the reception of asylum seekers (hereinafter ‘the directive’), has not been properly transposed into Irish law by the 2018 Regulations.

Background.

4. The applicant is a 55-year-old Ukrainian asylum seeker, who entered the State and sought international protection on 22 July 2022. He was provided with accommodation at a reception centre.

5. On 22 September 2023, a report was issued from the International Protection Office recommending that the applicant should not be given a refugee declaration, but that he should be given a subsidiary protection declaration. The Minister for Justice, by

decision dated 19 October 2023, declared the applicant eligible for subsidiary protection in accordance with s. 47(4) of the International Protection Act, 2015.

6. By letter dated 26 October 2023, the applicant was informed that he would be transferred from his place of accommodation to a tented accommodation in 12 months from the date of that letter. The applicant had been informed by the International Protection Accommodation Service (‘IPAS’) that he should find alternative accommodation within 12 months.

7. On 26 October 2023, the applicant appealed the decision of the International Protection Office (‘IPO’) to recommend that he should be refused refugee status. He appealed that decision to the International Protection Appeals Tribunal (‘IPAT’).

8. By letter dated 23 May 2024, the applicant was informed that because he had an international protection status or humanitarian permission, he must now progress to independent accommodation within the community. He was informed that failing to obtain same within six weeks of the date of that letter, would result in the applicant being transferred from his current accommodation to emergency accommodation at a tented accommodation in an alternative location. The applicant, through his solicitor, contended that he ought to be permitted to remain in his original accommodation for at least 12 months, as had been promised in the letter dated 20 October 2023.

9. The applicant contends that further correspondence from IPAS, being the letter dated 17 June 2024, made it clear that IPAS and the Minister for Justice regarded the applicant’s entitlement to material reception conditions as at an end under the 2018 Regulations. This decision had apparently been reached by them on the basis that he was a person who had had their application determined and therefore was no longer entitled to material reception conditions.

10. The applicant challenged the decision to remove him from his original accommodation by way of judicial review in these proceedings. The applicant was granted leave to proceed by way of judicial review on 2 July 2024. Following the issue of the proceedings, the Minister permitted the applicant to remain in the original accommodation.

11. On 15 November 2024, the applicant’s appeal to IPAT was determined with a recommendation that he be refused a declaration of refugee status.

12. By letter dated 10 March 2025, the applicant was informed that his right to be provided with accommodation had been withdrawn due to an alleged serious breach of the house rules in the accommodation, allegedly perpetrated by the applicant on 13 February 2025. The applicant was informed that because he had been guilty of repeated breaches of the house rules of the accommodation, he would have to leave the accommodation no later than 24 March 2025. The applicant has been out of the accommodation since that date.

The Law on Mootness.

13. As the court has come to the conclusion that these proceedings have become moot by virtue of the actions of the applicant, it will be helpful to briefly set out the main principles that are to be applied when considering whether a particular cause of action or proceedings have become moot.

14. The law in relation to mootness has been canvassed in a significant number of cases in recent years. The generally accepted statement of the relevant principles, was that set down by McKechnie J in Lofinmakin & Others v Minister for Justice Equality & Law Reform 2013 IESC 49 as follows at para. 82:

“[82] From the relevant authorities thus reviewed and leaving aside the issue of costs which is dealt with separately (para. 102, infra et seq.), the legal position can be summarised as follows:- (i) a case, or an issue within a case can be described as moot when a decision thereon can have no practical impact or effect on the resolution of some live controversy between the parties and such controversy arises out of or is part of some tangible and concrete dispute then existing; (ii) therefore, where a legal dispute has ceased to exist, or where the issue has materially lost its character as a lis, or where the essential foundation of the action has disappeared, there will no longer be in existence any discord or conflict capable of being justiciably determined; (iii) the rationale for the rule stems from our prevailing system of law which requires an adversarial framework, involving real and definite issues in which the parties retain a legal interest in their outcome.

There are other underlying reasons as well, including the issue of resources and the position of the court in the constitutional model; (iv) it follows as a direct consequence of this rationale, that the court will not – save pursuant to some special jurisdiction – offer purely advisory opinions or opinions based on hypothetical or abstract questions; (v) that rule is not absolute, with the court retaining a discretion to hear and determine a point, even if otherwise moot. The process therefore has a two step analysis, with the second step involving the exercise of a discretion in deciding whether or not to intervene, even where the primary finding should be one of mootness; (vi) in conducting this exercise, the court will be mindful that in the first instance it is involved in potentially disapplying the general practice of supporting the rule, and therefore should only do so reluctantly, even where there is an important point of law involved.

It will be guided in this regard by both the rationale for the rule and by the overriding requirements of justice; (vii) matters of a more particular nature which will influence this decision include:- (a) the continuing existence of any aspect of an adversarial relationship, which if found to exist may be sufficient, depending on its significance, for the case to retain its essential characteristic of a legal dispute; (b) the form of the proceedings, the nature of the dispute, the importance of the point and frequency of its occurrence and the particular jurisdiction invoked; (c) the type of relief claimed and the discretionary nature (if any) of its granting, for example, certiorari; (d) the opportunity for further review of the issue(s) in actual cases; (e) the character or status of the parties to the litigation and in particular whether such be public or private: if the former, or if exercising powers typically of the former, how and in what way any decision might impact on their functions or responsibilities; (f) the potential benefit and utility of such decision and the application and scope of its remit, in both public and private law;

(g) the impact on judicial policy and on the future direction of such policy; (h) the general importance to justice and the administration of justice of any such decision, including its value to legal certainty as measured against the social cost of the status quo; (i) the resource costs involved in determining such issue, as judged against the likely return on that expenditure if applied elsewhere; and (j) the overall appropriateness of a court decision given its role in the legal and, specifically, in the constitutional framework.”

15. In Right to Know CLG v Commissioner for Environmental Information [2020] IEHC 392, Hyland J gave the following succinct summary of the relevant principles:

“38. The decision of the Chief Justice, Denham C.J. in Lofinmakin makes clear that the following dicta of the Supreme Court in the Canadian case Borowski v. Canada (Attorney General) [1989] 1 SCR 342 represents the law in this jurisdiction as to when a case will be treated as being moot - “an appeal is moot when a decision will not have the effect of resolving some controversy affecting or potentially affecting the rights of the parties”. Or as identified as McKechnie J. in the same case, “there must exist some issue(s), embedded within a factual or evidential framework, the determination of which is/are necessary so as to resolve the conflict or dispute which necessitated the proceedings in the first instance (paragraph 59)” and later, “when the action has lost its utility by reference to the issues and the parties, the case is classified as moot”. Explaining the reasons for this approach, he observes that (a) the mootness rule is firmly based on the deep rooted policy of not giving advisory opinions, or opinions which are purely abstract or hypothetical, in a system that is fully adversarial; (b) judicial economy or efficiency/effectiveness requires that the courts scrutinise and calculate how best they can fulfil their functions and where necessity of resolution is not required, the courts will correctly be most reluctant to get involved; and (c) the discharge of the judicial function is best performed where the reference point is focussed on resolving defined issues in a concrete legal setting, with a consequent reduced danger of overstepping the reach of the judicial role as envisaged in Article 34 of the Constitution (paragraph 61).

39. Of course, even where an issue is moot, the courts have always maintained a discretion to hear and determine the point. McKechnie J. in Lofinmakin observes that where overriding interests of justice require a decision on the moot, same should be given (paragraph 67). In the same judgment, Denham C.J. refers to exceptionality as a test for the exercise of that discretion. During the hearing of this matter, all parties agreed that a moot should only be heard in exceptional circumstances. It is clear from the case law that an issue of exceptional public importance alone does not warrant the hearing of an appeal (Lofinmakin, as followed by Finlay Geoghegan J. in Kovacs v. Governor of Mountjoy Women’s Prison [2016] IECA 108 (paragraph 13)).”

16. The principles of law relating to mootness generally and in particular, the exception relating to time limited measures evading review, were considered by this Court in Friends of the Irish Environment v Minister for Agriculture Food and the Marine [2022] IEHC 64: see paras. 67-71

17. Therein, at para. 68 this court quoted from Goold v Collins [2004] IESC 38, wherein Hardiman J stated as follows:

“In the United States an issue is not deemed moot if it is ‘capable of repetition, yet evading review’ a phrase devised in 1911 and constantly used thereafter e.g. in Honig v. Doe 484 US 305 [1988]. This is said to be the case where: ‘(1) The challenged action is in its duration too short to be fully litigated prior to its cessation or expiration and (2) There is a reasonable expectation that the same complaining party would be subjected to the same action again.’”

18. It is clear that the doctrine of mootness is well established in Irish law, however, the case law also recognises that there can be exceptions to the application of the rule. These were summarised by Denham CJ giving the majority judgment in the Lofinmakin case, at paras. 17-20. In summary, the court recognised that it would be appropriate to allow a moot action, or a moot appeal, to proceed in three broad circumstances: first, where the issue, while no longer live for the particular applicant, remained a very live issue for the respondent in the exercise of their statutory functions in future cases. It was on that basis that the appeal was allowed to continue in O’Brien v Personal Injuries Assessment Board (No. 2) [2007] 1 IR 328, where the appeal court proceeded to deal with the appeal notwithstanding that the applicant in the interim had obtained an authorisation from PIAB to continue with his action and, therefore, did not need to further litigate the issue of whether PIAB was obliged to deal with his solicitor in connection with his application. However, given that there was in existence at that stage a High Court judgment to the effect that the statutory body had to deal with the applicant’s solicitor, and as that would have ramifications for the statutory body in the exercise of its core statutory functions in all future cases, the court permitted the appeal to continue.

19. Secondly, where the case involves a point of law of exceptional public importance, the trial court, or the appeal court, may decide that it is appropriate to continue with the proceedings, notwithstanding that they have become moot in the interim. Thirdly, if the case is a test case and there are many other cases which have been adjourned pending the decision in the test case, then it may be appropriate to allow the proceedings to continue, notwithstanding that they have become moot.

20. However, it has also been made clear in the cases decided to date, that the court should be very slow to allow a case to proceed notwithstanding that it has become moot.

In his judgment in the Lofinmakin case, McKechnie J stated that the court would not lightly embark upon such a course and normally would be most reluctant to do so. He stated that “strong, compelling and persuasive reasons” would need to exist before the court would make an exception to the mootness rule: see para. 91 of the judgment.

21. Finally, it has been made clear in a number of decisions that the fact that the issue of the costs of the proceedings which have become moot, remains a live issue between the parties, will not of itself mean that the proceedings are not moot. Denham CJ stated as follows at para. 25 in her judgment in the Lofinmakin case:- “It is not the jurisprudence of this Court that a moot appeal should be heard to determine an issue of costs. If such were the case, it would render at nought the discretion of the Court on a moot appeal. In moot cases on appeal there may be an issue of costs in both this Court and the High Court. However, that is not a factor in determining whether such exceptional circumstances exist, that a moot appeal should be heard by the Court.”

22. Similar views were expressed by McKechnie J. in his judgment in the same case at paras. 103-105.

23. The general principles outlined above were applied by Cahill J in O’Malley v Minister for Health [2025] IEHC 45 at paras. 29-41.

Discussion and Conclusions.

24. The applicant instituted his judicial review proceedings prior to the determination of his appeal of the refusal of refugee status. Leave was granted to institute these proceedings on 2 July 2024. On 15 November 2024, IPAT issued its

decision affirming the recommendation that refugee status be refused to the applicant.

25. This application for judicial review came before the court for determination in July 2025. The applicant had been put out of his accommodation on 24 March 2025 for repeated misbehaviour in contravention of the house rules of the reception centre.

26. The background to that decision has been set out in the affidavit sworn by Mr John Harding on 26 June 2025. The applicant had been found guilty of a number of separate breaches of the house rules in the accommodation. By letter dated 26 June 2024, the applicant was warned in writing in relation to an incident that had occurred on 23 June 2024, when he had left food in the oven unattended. Thereafter, he had engaged in aggressive behaviour towards staff. He was informed in the letter that that was regarded as a very serious breach of the house rules and was contrary to fire safety regulations which risked the safety of other residents and staff. He was told that such behaviour must not happen again. The applicant responded to that letter by internal email dated 25 June 2024, wherein he stated that the allegations of misbehaviour made against him were all lies.

27. On 8 July 2024, the applicant received a further written warning in relation to an incident that occurred on 27 June 2024. It was alleged that on that occasion he had been loitering outside the shower room and had refused to leave the area to allow female staff to clean the shower area. It was reported that he had made a disrespectful comment about women being in the accommodation centre. He was told that he was obliged to follow the direction of the centre staff and that they should be treated with respect at all times. He was told that any further incidents of that type of behaviour would not be tolerated under any circumstances.

28. Finally, by letter dated 10 March 2025, the applicant was written to in relation to an incident that was alleged to have occurred on 13 February 2025. It had been reported by the management in the accommodation centre that on 13 February 2025 he had continued to refuse to comply with the direction of management regarding moving rooms within the centre. He was informed that that was a very serious breach of the house rules that compromised the good order of the centre. The letter noted that it was not an isolated incident. It stated that the refusal to change room was a serious breach of the house rules. The letter went on to inform him that his accommodation was deemed to be withdrawn. He was informed that he was required to leave the accommodation centre not later than 24 March 2025.

29. By internal email dated 14 March 2025, the applicant stated that he categorically disagreed with the complaint that had been secretly filed against him by the manager of the accommodation centre. He stated that the allegations made against him were absolutely unfounded. He requested a review of the decision to expel him from the accommodation.

30. By internal email dated 13 June 2025, the review was determined against the applicant. He was informed that he had not complied with the direction that had been given by management concerning moving rooms within the centre, which resulted in a breach of the house rules and, consequently, had led to a withdrawal of the accommodation that had been provided to him. He was informed that he could avail of the homelessness services if he wished. He was advised that he should make contact with his local services in that regard.

31. Thus, the operative reason why the applicant is no longer in State provided accommodation has nothing to do with whether he holds applicant status sufficient to bring him within the 2018 Regulations. It is due to his intervening acts of repeated misbehaviour. On these grounds, after having issued two written warnings to him in respect of previous incidents of misbehaviour; on the third occasion, management made the decision to expel him from the accommodation.

32. The applicant appealed that decision by way of internal review. It was determined against him. The expulsion decision was upheld. That decision is final. The applicant has not challenged it by way of judicial review proceedings.

33. The applicant’s claim to an entitlement to accommodation based on any extant application for refugee status that there may have been at the time when he obtained leave to bring these judicial review proceedings, or his right to be regarded as an applicant for international protection due to the fact that he has instituted separate judicial review proceedings challenging the IPAT decision, have been entirely overtaken by the subsequent decision to expel him from the accommodation for repeated misbehaviour.

34. In these circumstances, I hold that the present proceedings have become moot. The question of his holding applicant status is no longer relevant to the reason why he is not in State provided accommodation. The court will not provide advisory opinions on issues that are no longer relevant.

35. The court is further satisfied that this case does not come within any of the recognised exceptions to the rule on mootness. In particular, it does not come within the public interest exception as recognised in O’Brien v PIAB as it lacks the level of general applicability that is required to come within that exception.

36. I refuse the reliefs sought by the applicant in his notice of motion and in his amended statement of grounds.

37. As this judgment has been delivered electronically, the parties shall have five weeks within which to deliver brief written submissions on the terms of the final order and on costs and on any other matters that may arise.

38. The matter will be listed for mention at 10.30 hours on 9 October 2025 for the purpose of making final orders.