High Court dismisses costs claim where premature judicial review proceedings were issued before a five-day statutory response period expired.

THE HIGH COURT

[2025] IEHC 614

Record No. 2024 581 JR

BETWEEN

F.A.A.

APPLICANT

AND

MINISTER FOR JUSTICE

RESPONDENT

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

1. This application arises out of a proposal by the respondent to deport the applicant, a

decision which has now been rescinded.

2. In brief, the background to this application is as follows.

3. The applicant is a citizen of Nigeria who arrived in the State in 2012 and initially applied for asylum. He was subsequently granted permission to remain on the basis of his marriage to an EU citizen and thereafter applied for a certificate of naturalisation.

4. The applicant was granted an independent Stamp 1 permission by the respondent covering the period from the 12th of October 2022 to the 11th of October 2023. He was thereafter granted a further Stamp 4 permission by the respondent on the 19th of May 2023 which was to remain valid until the 18th of May 2025. This Stamp 4 permission was renewed from the 19th of May 2025 to the 18th of May 2027.

5. In January 2024, the respondent made a marriage of convenience finding in respect of the applicant and revoked his EU Treaty Rights permission.

6. Of particular relevance to this application is a letter dated the 17th of April 2024 in which the respondent communicated to the applicant a proposal to deport him on the expressed basis that the applicant had remained in the State without the permission of the Minister for Justice and that therefore his deportation would, in the Minister's opinion, be conducive to the common good.

7. This was notwithstanding the fact that the applicant had already been granted a Stamp

4 permission that had not been revoked.

8. By letter dated the 7th of February 2025, the applicant was informed that the proposal to deport him had issued due to “an administrative error” and that this decision was now rescinded.

9. The core of the current dispute in relation to costs concerns the steps taken by the respective parties between the 17th of April 2024 and the decision to rescind the proposed deportation on the 7th of February 2025.

10. The applicant commenced judicial review proceedings on the 26th of April 2024 and leave was granted on the 1st of July 2024. The applicant now seeks costs in respect of same – where the proceedings are effectively moot.

11. The respondent says that the proceedings were premature, unnecessary and inappropriate and, notwithstanding the concession that the proposal to deport arose out of an error on the Minister's part, resists the application for costs and further submits that costs should be awarded in favour of the Minister.

12. The following represent the salient matters as I see them in respect of my discretion in relation to the awarding of costs in this case.

13. Firstly, the jurisprudence in relation to a proposal by the Minister to deport makes it clear that judicial review does not ordinarily lie. In Habte v. Minister for Justice and Equality [2021] 3 I.R. 627 at paragraph 129, Murray J. expressed the position as follows: “I agree with the observation of the trial judge, at para. 61, that it is not, in general, appropriate to grant judicial review directed to a mere proposal or, as he later put it, at para. 62, ‘[t]he decision to initiate a procedure is not liable to judicial review in the same way as the outcome of the procedure’. Usually, as Humphreys J. observed, at para. 62, judicial review is directed to an act that must affect some legally enforceable right of an applicant. He expressed the view that a decision to initiate a process is only exceptionally in that category.”

14. Further, in Leng v. Minister for Justice and Equality [2015] IEHC 681, Humphreys J. held at paragraph 33: “The most fundamental obstacle to any relief being granted is that the letter is merely a proposal to deport. It does not in and of itself infringe any rights of the applicant. In the absence of an infringement of a right, it is hard to see how the applicant can be said to be entitled to seek judicial review of the decision.”

15. At paragraph 36, Humphreys J. stated: “… the circumstances in which judicial review of a mere proposal to deport an applicant is available must be extremely limited and confined to cases where the Minister had no jurisdiction to make the proposal… The correct response to such a proposal, if a recipient wishes to challenge it, is to write to the Minister setting out representations and if needs be legal argument as to why the proposal should not be converted into an actual decision. Where the proposal was based on a fundamental error such as to deprive the Minister of any jurisdiction – for example where the applicant was in fact an EU citizen with an entitlement to be present in the State – judicial review would be a legitimate option despite the alternative remedy of making representations. But where the applicant is a person who is prima facie liable to having a deportation order made against him or her, as is clearly the case here, judicial review is not an appropriate first response to such a proposal.”

16. This principle was also confirmed in E.E.O. (Nigeria) v. Minister for Justice and Equality [2018] IEHC 399 where reference was made to the applicant in that case having the option to point out difficulties in the correspondence which would have obviated any need for judicial review.

17. The applicant contends that the respondent lacked the jurisdiction to make the proposal to deport and could never have lawfully issued the letter dated the 17th of April 2024. I do not agree that the Minister was in principle deprived of any jurisdiction to make a proposal to deport merely because the applicant in this case had a Stamp 4 permission, where such a permission could itself be revoked in the appropriate circumstances.

18. I think the real question for determination is the reasonableness or otherwise of issuing proceedings seeking relief by way of judicial review at the point at which they were initiated having regard to all of the circumstances pertaining at that time.

19. The respondent relies on section 3 of the Immigration Act 1999 which provides at subsection 3: “(a) Subject to subsection (5), where the Minister proposes to make a deportation order, he or she shall notify the person concerned in writing of his or her proposal and of the reasons for it and, where necessary and possible, the person shall be given a copy of the notification in a language that he or she understands.

(b) A person who has been notified of a proposal under paragraph (a) may, within 15 working days of the sending of the notification, make representations in writing to the Minister and the Minister shall—

(i) before deciding the matter, take into consideration any

representations duly made to him or her under this paragraph in relation to the proposal, and

(ii) notify the person in writing of his or her decision and of the reasons for it and, where necessary and possible, the person shall be given a copy of the notification in a language that the person understands.”

20. Subsection 4 provides that: “A notification of a proposal of the Minister under subsection (3) shall include—

(a) a statement that the person concerned may make representations in writing to the Minister within 15 working days of the sending to him or her of the notification,

(b) subject to subsection (4A), a statement that the person may leave the State before the Minister decides the matter and shall require the person to so inform the Minister in writing and to furnish the Minister with information concerning his or her arrangements for leaving,

(c) a statement that the person may consent to the making of the

deportation order within 15 working days of the sending to him or her of the notification and that the Minister shall thereupon arrange for the removal of the person from the State as soon as practicable, and

(d) any other information which the Minister considers appropriate in the circumstances.”

21. In this case, a letter was issued on behalf of the applicant to the respondent dated the 24th of April 2024. This was not characterised as a representation pursuant to section 3 of the 1999 Act. Rather it was referred to as a ‘pre litigation letter.’ Indeed, the applicant submits that to engage in the process of making representations pursuant to section 3 would have been inappropriate and possibly even prejudicial to him.

22. There are a number of aspects of this correspondence which, in my view, are of significance.

23. The letter states: “Having regard to our client’s full immigration history and the nature of the permission granted to him, we request that if the Minister seeks to propose to deport our client, that a valid reason pursuant to Section 3(2) of the Immigration Act 1999 (as amended), is identified by the Minister and notified to our client.

Having regard to the urgency of the matter, we request that this is done within a period of five days of the date of this notice.”

24. It is evident that, despite the invocation of section 3 of the 1999 Act in that correspondence, it was not brought to the Minister’s attention that the applicant had an extant Stamp Four permission.

25. The reference to the applicant’s immigration history and the “nature of the permission” granted to him is somewhat oblique. Had the true position in relation to the Stamp 4 permission been explicitly pointed out to the Minister then, in the words of Humphreys

J. in E.E.O., the proposal may have been “decommissioned and no judicial review would have been necessary.”

26. I am also of the view that the issuing of proceedings before the stipulated period of five days had elapsed is itself significant. Nothing has been suggested as having occurred after the pre-litigation letter had been sent to necessitate moving to issue proceedings before the five-day period was up and, in fairness, counsel for the applicant did not attempt to suggest otherwise. She does point out, however, that a response did not come from the Minister until well after the period had in fact elapsed. Nonetheless, I am of the view that this feature underscores my assessment that proceedings were issued in this case prematurely.

27. In this regard, I find the decision of Bolger J. in J.I.D. (a minor) v. Minister for Justice [2024] IEHC 164 distinguishable as, in that case, the relevant correspondence made it very clear that a deportation order would be made and that any further steps in respect of a consideration of a right to remain would not be taken until after the order had been made.

28. In those circumstances and notwithstanding the skill and thoroughness with which the application was moved by counsel for the applicant, I find that in the exercise of my discretion I should not order costs in favour of the applicant.

29. Having said that, it must be acknowledged that the error here giving rise to the proceedings was an error on the part of the respondent. Further, I do not think it irrelevant that it took until the 7th of February 2025 for the respondent to inform the applicant that the proposal had been rescinded, by which time leave had been granted and the case had been listed before the High Court a number of times.

30. In those circumstances, I am not minded to exercise my discretion to award costs to the respondent and I propose to make no order as to costs.