High Court awards applicant costs where IPAT decision quashed on fair procedures grounds despite contested proceedings.

THE HIGH COURT

[2025] IEHC 596

Record No. 2024 103 JR

BETWEEN

Y.A.M.

APPLICANT

AND

INTERNATIONAL PROTECTION APPEALS TRIBUNAL AND ORS

RESPONDENTS

EX TEMPORE JUDGMENT delivered by Mr. Justice Sean Gillane on 24 October 2025

1. This is an application by the applicant for his costs in proceedings wherein he challenged the first named respondent’s recommendation and decision dated the 11th of December 2023, pursuant to Section 21(9)(a) of the International Protection Act 2015, deeming the applicant’s international protection application inadmissible, and the second named respondent’s subsequent determination and direction dated the 8th of January 2024.

2. As the respondents consented to an order of certiorari quashing the impugned decision, the only outstanding question relates to costs.

3. The factual circumstances underpinning this application are very unusual and a little bit needs to be said about them in order to understand the position adopted by the parties and the ruling of this Court.

4. This case is one of a number of what have been described as ‘Greek Transfer’ cases which have come before the courts in this jurisdiction. I am informed that a number of such cases were conceded in 2024 with costs orders in favour of the relevant applicants. I am also informed that a further two cases were contested in December of 2024 and a

decision adverse to the applicants was made, which was upheld on appeal on the 16th of October 2025.

5. The applicant, with a date of birth of the xxxxxxxxxxxx 2004, is from Somalia and was granted refugee status in Greece as an unaccompanied minor in October of 2021.

6. Thereafter, he made an application for international protection in Ireland, and it is the

decision determining that application to be inadmissible which is central to this case.

7. That decision was a lengthy one, running to over 20 pages, and was made on a number of bases, most of which are not relevant to the consideration of the issue of costs in this application.

8. Of central importance is that, at paragraph 3.5 of the decision, it is indicated that the International Protection Appeals Tribunal (“IPAT”) sought from the applicant further information on the grounds of appeal advanced on his behalf, a request which took the form of a series of written questions. It is recorded at paragraph 3.6 of the decision that “no response was forthcoming.” These questions were incorporated in a letter sent to the applicant’s solicitor by way of email dated the 27th of November 2023.

9. The applicant initiated judicial review proceedings in January of 2024 seeking an order of certiorari in relation to the determination that his application was inadmissible and a number of declaratory reliefs.

10. The grounds upon which relief was sought are set out at paragraph 8 of the statement of grounds and can be described as wide-ranging. Of particular relevance to the application before this Court is the ground set out at paragraph 3 of ground A i.e., that the applicant’s right to fair procedures and natural and constitutional justice had been breached by the respondents in circumstances where it is recorded that the applicant had failed to answer a number of questions during the appeal stage but the applicant says that, in fact, no such questions were provided to him nor was he given an opportunity to answer any such questions.

11. This stark difference between the parties appears to have arisen in the following circumstances.

12. The evidence before the Court establishes that the email correspondence was sent to two email addresses associated with the office of the applicant’s solicitor and the relevant email logs on the respondent’s side indicate that they were received at the level of their, which is to say the applicant’s solicitor’s, ‘inbound mail gateway.’

13. Further analysis by the respondent of screenshots from the email system indicated that the ‘received’ email had the status of ‘queued mail for delivery’ which might suggest an email delivered to the recipient’s servers but not necessarily arriving in an individual recipient’s inbox.

14. The respondent is not in a position to go any further in relation to that aspect as delivery beyond the point of the inbound mail gateway is not a matter which can be controlled by the email sender. No ‘bounce back’ or similar communication was received by the respondents indicating that the email dated the 27th of November 2023 was not received.

15. The position of the applicant’s solicitor is that this email was not received by him.

16. Much of the correspondence and evidence on affidavit concerns the efforts to ascertain the precise position in relation to the emailed correspondence and there is a temptation, in the words of counsel for the respondent, to “get into the weeds” in this respect.

17. Having considered the evidence and attempting to isolate what is relevant to the exercise of my discretion on this application, I am of the view that the evidence clearly establishes that the email was sent by the respondent, and no fault lies with the respondent in that regard.

18. It is also clear that, for whatever technical reason, the email was not received in the inbox of the applicant’s solicitor on the 27th of November 2023 and therefore he was, at that time, unaware of it.

19. The applicant’s solicitor also instructed an IT professional to investigate the issue concerning the email correspondence to no avail. He was unable to establish that the email was successfully delivered to either mailbox and indicated that he could not prove a negative i.e., find evidence that demonstrated that the email was not there.

20. It may also be important to note that I am not being invited to go behind what is set out by the applicant’s solicitor in respect of the email on affidavit.

21. More importantly, the consequence of the above was that the applicant was completely unaware of the request for further information concerning his appeal.

22. Some criticism was made of the respondents for not having a ‘read receipt’ system in place, which is said to be inconsistent with the requirements placed on solicitors for applicants as set out in IPAT’s Updated Administrative Practice Note in relation to appeals. In my view, it would not be appropriate for me, in the context of the issues in this case, to prescribe or dictate how the respondent organises its administrative approach to appeals. I note and accept that the position of the respondent, and the sheer volume of cases they are required to deal with, is a distinguishing feature vis solicitors for applicants.

23. I am also told by very experienced counsel that what occurred in this case was very unusual and had not been encountered previously. One hopes that it will not be encountered again.

24. The real question for determination is the effect of these matters on the application for costs.

25. Manifestly, the decision on admissibility taken by the respondents was, inter alia, reached on a bona fide understanding that the request for information had been received but had remained unanswered after the time period stipulated for the provision of answers had expired.

26. On receiving the adverse decision, the applicant sought leave for judicial review on a number of bases, as indicated above, as well as seeking a number of reliefs. Leave was granted and papers were served, resulting in the inquiries referred to above and, consequently, an acceptance by the respondent that the applicant had not in fact refused to provide further information in respect of the questions that he had never seen.

27. In consequence of that, the respondent took the commendable approach of indicating that they were prepared to consent to an order of certiorari in respect of the decision. This was communicated to the applicant by letter to his solicitor dated the 15th of October 2024 which stated:

“While not accepting any liability whatsoever, in the interests of the applicant and to bring finality to the matter, we are instructed to offer your client the following:

Consent to an order of certiorari of the IPAT decision of the 11th of December 2023; Strike out the proceedings with no order, each side bearing her own costs.”

28. This was initially interpreted by the applicant as a contingent offer i.e., that certiorari would be consented to subject to the applicant agreeing to the proposal on costs, but the respondent confirmed that the proposal in relation to certiorari was free standing and that if the proposal on costs was not agreed, that aspect of the matter could be argued.

29. In essence, the respondent submits that they have done nothing wrong, taken all the appropriate steps and consented to certiorari in ease of the applicant solely on the basis of what had transpired in relation to the correspondence requesting further information. They say that they acted in a manner which was fair, reasonable and efficient. No concession was made in respect of any of the other reliefs sought or the grounds on which they were sought. They further say that the Court’s jurisdiction and discretion is governed by Section 169 of the Legal Services Regulation Act 2015. They contend that the applicant has not been entirely successful in the sense contemplated by the Act.

30. While a number of cases in relation to the law on mootness were referred to in the written submissions, it was accepted that, technically, it would not be correct to characterise the matter as moot. This is because the agreed position is that once IPAT makes a decision, it is functus officio. Therefore, any infirmity in a decision can only be resolved by certiorari rather than being resolved by changing or withdrawing a

decision.

31. It seems that the mootness authorities are really only referred to in a limited sense in connection with the other grounds advanced which will not be assessed or determined by this Court. It is submitted that the fact that there were other grounds is not relevant to the Court’s jurisdiction and discretion in relation to the application for costs.

32. The respondents submit that there should be no order as to costs.

33. The applicant submits that the ordinary rule that costs follow the event should apply as there are no special circumstances justifying a departure from that principle.

34. Counsel also submits that the principal relief sought in the proceedings was certiorari and that once a consent order was on offer in that regard, it had to be accepted in the interests of the applicant.

35. It seems to me to be important to the exercise of my discretion that the agreed position is that the decision made by the IPAT in this case could only be undone in the event of an infirmity by an order of certiorari. It is to be distinguished, for example, from a proposal to deport by the Minister which expressly provides for representations to be made and for the Minister to come to a different view.

36. It is also of relevance in my view that both parties here were effectively in the dark as to the position of the other side until leave was sought and obtained. The respondent was unaware that the applicant had never seen the questions requesting further information. Meanwhile, the applicant was oblivious to the basis for the stated reason in the decision on admissibility concerning the putative failure to respond to questions.

37. I am of the view that I must proceed on the basis that I should not go behind what is stated by the applicant’s solicitor in relation to the non-receipt of the email nor reach a

decision which may appear to do that by inference.

38. Once the decision was received containing within it an expressed rationale, which on the applicant’s understanding at the time had no basis in fact, it was unsurprising that the applicant sought leave with this feature pleaded specifically as a ground for relief.

39. The respondent acted responsibly and properly in conceding the relief, albeit on a narrow basis, once the true position became known. It is expressly indicated that this was on a ‘fair procedures’ basis.

40. The applicant’s solicitor, although initially misinterpreting the offer from the respondent, thereafter acted responsibly in agreeing to the proposal subject to the costs issue being sent for hearing. In those circumstances, I am not concerned that other reliefs were sought on other grounds, the merits of which I should not explore and which have not been argued.

41. In substance, the principal relief sought was certiorari and this has been conceded by the respondent in the unique circumstances of the case.

42. That effectively brought the proceedings to an end and, notwithstanding the fact that the respondents have acted responsibly throughout, I am of the view that the normal rule should apply and costs should be awarded to the applicant.