High Court refuses security for costs in visa judicial review due to prima facie defence and public interest.

[2026] IEHC 14

THE HIGH COURT

JUDICIAL REVIEW

[2024/566JR]

BETWEEN:

MUHAMMAD HAMZA

Applicant

AND

THE MINISTER FOR JUSTICE

Respondent

JUDGMENT of Mr. Justice Barry O’Donnell delivered on the 14th day of January, 2026

INTRODUCTION and BACKGROUND

1. This judgment concerns an application by the respondent for security for costs pursuant to Order 29, rule 1 RSC. The application has been sought in the context of a fully contested application for judicial review concerning a refusal of a visa. For the reasons explained below I am satisfied that the application should be refused.

2. The applicant was granted leave to apply for judicial review on the 24 June 2024. He seeks orders quashing a decision upholding a first instance refusal of a visa application. The context of the application was that the applicant, who is from Pakistan, had obtained an offer of employment as a chef de partie in an Irish restaurant. The Minister for Enterprise, Trade and Employment issued the applicant a general employment permit pursuant to the Employment Permits Acts. The permit was valid from the 1 November 2022 to the 31 October 2024. The applicant then applied for a visa. The visa application was refused at first instance on the 16 January 2023; and that decision was upheld in a decision communicated by letter dated the 23 January 2024.

3. The applicant seeks to challenge that decision on a variety of grounds, including that there was a failure to have proper regard to the earlier grant of a general employment permit. There has been a full exchange of pleadings and the applicant’s substantive claim for relief is fully opposed by the respondent.

THE APPLICATION FOR SECURITY FOR COSTS

4. The application was brought by notice of motion dated the 30 May 2025, and is grounded on a short affidavit sworn on the same date by Cillian Thornton, a solicitor in the office of the Chief State Solicitor (the CSSO). Mr. Thornton sets out a brief outline of the events that gave rise to the judicial review proceedings, and notes that the underlying employment permit expired on the 31 October 2024 and that the applicant is entitled to make a fresh application for a visa should he choose to do so.

5. In terms of the basis for seeking security for costs, Mr. Thornton asserted that: a. The respondent is contesting the substantive application and is advised that there is a good defence on the merits; hence there is a prima facie defence to the claim. b. The applicant is from Pakistan, and ordinarily resident outside the State, the EU or a Lugano country; hence there is a prima facie basis for awarding security for costs. c. There is no human rights element to the case, and the case does not engage issues of EU law, ECHR concerns or raise issues involving constitutional rights.

6. It was noted that one of the reasons for the impugned decision was that the applicant had failed to furnish a bank statement covering the six-month period immediately preceding his visa application. Mr. Thornton also exhibits a chain of correspondence between the CSSO and the applicant’s solicitors in respect of the security for costs issue. The correspondence commences with a letter from the CSSO dated the 25 November 2024, seeking security for costs. In reply to a request for clarification from the applicant’s solicitor regarding the amount being sought, the CSSO wrote a letter on the 26 March 2025. In that letter, reference is made to advice obtained from the National Treasury Management Agency which estimated the total costs of defending the case on a party and party basis at €20,000. The letter called on the applicant to furnish 1/3 of that figure by way of security, i.e. €6,670. The applicant’s solicitor reverted by email dated the 7 April 2025, in which it was said that they were instructed that “due to our client’s financial circumstances he is simply not in a position to provide security for costs in the amount sought.” The email noted that several similar cases had proceeded without the need for security for costs, and some, but not all, cases had succeeded. The CSSO responded on the 17 April 2025, reiterating its demand for security for costs.

7. The applicant did not file any evidence in response to the motion.

ARGUMENTS

8. The respondent’s case was straightforward insofar as it was contended that this was a situation in which a prima facie basis for security for costs had been established and that there were no identifiable countervailing factors or special circumstances to displace that prima facie entitlement.

9. The respondent framed the application by reference to the language of Order 29 and by reference to a general summary found at para. 13.38 of Delaney & McGrath on Civil Procedure, (5th Ed., 2023). The respondent contended that there was no dispute that the applicant was ordinarily resident in the State, the EU or another Lugano Convention State. Likewise, the respondent contended that at the very least there was a bone fide, prima facie defence to the application for relief by way of judicial review.

10. In terms of the remaining elements in the test, the respondent suggested that to deprive the respondent of an order for security for costs the applicant must demonstrate that special circumstances exist. In that regard, it was noted that the applicant has not asserted that he had any assets in the jurisdiction. The question of the applicant’s impecuniosity was stated in and of itself not to be a sufficient basis for refusing the application; and reliance was placed on observations made by Sanfey J. in Cyr v. Planitas Airline Systems Ltd [2023] IEHC 149.

11. The respondent argued by reference to Farrell v. Bank of Ireland [2012] IESC 42 that the applicant’s right of access to the court is not absolute and that a feature of the administration of justice is that courts make decisions as part of the trial process; where such a decision is made that has the effect of preventing a case from progressing, this, properly understood, does not amount to a denial of access to the courts. The respondent identified two cases in the immigration field in which applications for security for costs were refused, A.K. (Somalia) v Minister for Justice and Equality [2018] IEHC 434, and G.T. v IPAT & Ors [2025] IEHC 473.

12. For his part, the applicant did not dispute the background facts relied on by the respondent. It was accepted that the applicant resides outside the EU and has been unable to meet the request for security for costs. The applicant questioned whether there was a prima facie defence to the case, particularly where the applicant had obtained an employment permit. The applicant argued that it was relevant that his presence outside the State was a function of the respondent’s decision to refuse his visa application which he stated was the wrong that he seeks to challenge.

13. The applicant also argued that the strict application of principles developed in private law and commercial cases should be subject to different considerations in judicial review proceedings challenging decisions by the State, where a strict application of the principles may result in the respondent being able to “insulate the examination of its own decisions excluding people from entry to the State by relying on the fact that they are outside the State” and that this would result in an unfairness and lead to a low standard of decision making. Bearing those factors in mind, the applicant urged the court to focus on what Murray J. described as the court’s “overriding discretion” in Gordon v. Irish Racehorse Trainers Association [2021] IECA 128.

14. In terms of the effect of denying the applicant the opportunity to take this case to trial, the applicant highlighted that there have been several decisions on visa challenges in which security for costs was not sought and where the challenged decisions were quashed. Finally, the applicant queried the absence of any particularisation in the costs estimate provided by the respondent in the CSSO correspondence referred to above.

DISCUSSION

15. For the purposes of this application, the relevant parts of Order 29 provide as follows: “1. When a party shall require security for costs from another party, he shall be at liberty to apply by notice to the party for such security; and in case the latter shall not, within forty-eight hours after service thereof, undertake by notice to comply therewith, the party requiring the security shall be at liberty to apply to the court for an order that the said party do furnish such security.

…

3. No defendant shall be entitled to an order for security for costs by reason of any plaintiff being resident out of the jurisdiction of the Court, unless upon a satisfactory affidavit that such defendant has a defence upon the merits.

…

6. Where the Court shall have made an order that a party do furnish security for costs, the amount of such security and the time or times at which, and the manner and form in which, and the person or persons to whom, the same shall be given shall, subject to rule 7, be determined by the Master in every case.”

16. In the context of judicial review, Order 84, rule 20(7) provides that where the court grants leave to apply for judicial review, “it may impose such terms as to costs as it thinks fit…”, which suggests the existence of a wide discretion.

17. Farrell v. Bank of Ireland was judgment on an application for security for costs in the context of several appeals that had been brought by Ms. Farrell in respect of orders made in High Court proceedings. One of the appeals was an appeal against orders obtained by Bank of Ireland by way of judicial review which quashed criminal summons issued by the District Court on the application of Ms. Farrell as common informer. Clarke J. (as he then was) noted that there was a distinction between applications for security for costs on an appeal and such an application in first instance proceedings. It must also be noted that aside from the fact that Farrell involved an application at the appeal stage, the application in Farrell involved allegations that the court processes had been abused by Ms. Farrell by failures to comply with directions and engagement in oppressive applications, which are features that are absent from this case.

18. Nevertheless, common features between applications on appeal and at first instance were identified, and the Supreme Court observed at para 4.4, by reference to the then edition of Delaney & McGrath on Civil Procedure, that “the concept of ordering a party to provide security for the costs of an action effectively involves balancing the right of a defendant to recover costs if he successfully defends a claim against the right of a plaintiff, rooted in the Constitution, to have access to the courts.” The Court went on to note at para 4.17: “Against that background it seems to me that the jurisprudence in relation to all of the areas where security for costs is considered … starts from a default position that, in the absence of some significant countervailing factor, the balance of justice will require that no security be given. The reasoning behind that view is that, if it were otherwise, all impecunious parties might, in substance, be shut out from bringing cases or pursuing appeals. Such a balance would be untenable and disproportionate. It is for that reason that there must be some additional factor at play before an order for security for costs can be made.”

19. In the case of individual plaintiffs, one of those factors will be the presence of the plaintiff outside the State, the EU or a Lugano Convention country. The rationale as explained at para. 4.21 of Farrell, is that such plaintiffs may be required to provide security for costs because of the “difficulty of recovering costs where the plaintiff is not readily amenable to the process of the Irish courts or other courts which, under the provisions of Regulation 44/2001, give a high level of recognition to orders (including costs orders) of the Irish courts.”

20. For the purposes of this application there is no dispute that the applicant is both resident in Pakistan and unable to meet to any requirement for security. Likewise, and notwithstanding the reservations expressed by the applicant, I am satisfied that the respondent has articulated a prima facie defence. While the caselaw generally requires that prima facie defence to be established on affidavit and by way of something that goes further than mere assertion, the situation is different in judicial review proceedings where it may be possible to find that the prima facie defence is made out by reference to the opposition papers where they have been delivered. This is the situation in this case, and the respondent has filed a statement of opposition verified by an affidavit which in my view meets the criteria.

21. A feature of the caselaw is that security for costs may be refused where the applicant party has delayed in bringing the application such that the other party will have had to incur additional costs in prosecuting the case which could have been avoided if the application was brought promptly. Here, there has been what appears to be a full exchange of pleadings, but this does not appear to have involved the applicant incurring any substantial additional costs over and above the costs associated with commencing the proceedings, as no reply was delivered to the State’s opposition papers.

22. Hence, the issues net down to a question of how the court should exercise its discretion.

23. In A.K. (Somalia) v. Minister for Justice and Equality [2018] IEHC 434, Humphreys J. addressed an application for security for costs in the context of judicial review proceedings in which the applicant, who was from Somalia, sought to quash a decision to refuse him a temporary travel document. The factual backdrop was that the applicant was a failed asylum seeker who had nevertheless been granted residence on a ‘Stamp 4’ basis. The applicant was provided with temporary travel documents on condition that he obtain a Somali passport. The applicant travelled to Tanzania on a false Somali passport and effectively found himself stranded in that country when the Minister refused to issue temporary travel documents. The court framed the relevant test to be met by the respondent as (a) that there was a prima facie defence on the merits, (b) the applicant was ordinarily resident outside Ireland, the EU, or a Lugano country, and (c) that the exercise of the court’s discretion favours the making of the order.

24. In A.K. the court was persuaded that the applicant was ordinarily resident in Ireland, due to his Stamp 4 permission, notwithstanding that he temporarily was outside the State. This is a distinction between A.K. and the present case. In relation to the question of discretion, the court noted that, unlike an application for security for costs in an appeal, a first instance court cannot take a more in-depth view of the likelihood of success. The court also noted that the case in A.K. had a human rights aspect, which is another point of distinction with this application.

25. Importantly, the court noted that if security for costs was directed it would effectively determine the action, which was a factor that weighed against making such an order, albeit not an automatic bar. Finally, the court noted that the applicant’s absence from the State involved a number of factors, one of which was the alleged wrong being challenged in the proceedings. In those premises, the court concluded that the balance of justice did not favour the application. Significantly the court also noted that security for costs applications could have the effect of delaying the resolution of cases which systemically was not something to be encouraged.

26. The second judgment relating to security for costs in immigration judicial reviews that the parties identified was G.T. v IPAT and Minister for Justice [2025] IEHC 473. That case involved a challenge to IPO and IPAT decisions under the International Protection Act, 2015. As such, it was a case with a human rights and EU law context dealing with asylum and subsidiary protection. The applicant had been deported and was therefore outside of the jurisdiction. At an earlier stage, the applicant had sought an injunction to prevent his deportation. The injunction was refused, and one of the reasons for the refusal was that the applicant retained his entitlement to challenge the decisions and consequent deportation in the judicial review proceedings.

27. For the purposes of the security for costs application in G.T., the applicant accepted that he was residing outside the jurisdiction and that the respondents had a prima facie defence. The court considered the relevant case law and concluded that there were special circumstances such that the order should be refused. The court noted that the applicant had been within the jurisdiction when the proceedings were commenced. The court also noted that when they opposed the injunction to prevent the applicant’s deportation the respondents had assured the court that the applicant would nonetheless be able to apply for a revocation of his deportation. The court finally noted that due to his impecuniosity an order awarding security for costs would in effect determine the proceedings, where the decisions being challenged led to him being outside the jurisdiction.

28. On that basis, the court concluded that there was a greater risk of injustice in making an order for security for costs which would prevent the judicial review case being heard.

29. It would be fair to observe that both A.K. (Somalia) and G.T. had features that are not present in this application. Both of those cases involved judicial review applications in the context of immigration cases based on claims to international protection, which engaged issue of human rights and EU law. In addition, both of those cases involved situations in which the applicants had been residing in this State and the challenges sought to address, at least in part, situations where a decision had been made by the respondents which led directly to the applicants’ absence from the State. The current case, by contrast, does not have a human rights or EU law context. It is a challenge to the exercise by the State of executive discretion in the context of a visa application; it is properly characterised as a case concerning the legal regulation of economic migration. In addition, this is not a case where the applicant has ever resided in the State.

30. On the other hand, both cases record a concern that the effect of granting an order for security for costs would be that the judicial review challenge for which leave had been granted could not proceed. I am also mindful of the observations of Humphreys J. that, from a systemic point of view, cases concerning visa refusals could be considerably delayed if applications for security for costs were to become commonplace. Similarly, the applicant makes a valid point that there is a risk that proper decision making in the visa area could be adversely affected if avenues of challenge were shut off if security for costs was granted on a regular basis.

31. Against those matters, the State clearly has a legitimate concern to avoid situations where it is exposed without proper or adequate recourse to the costs of successfully defending judicial review applications by persons who effectively are beyond the reach of costs orders.

32. The court has not formed any view on the respective merits of each side’s claim on the substantive action. The applicant has been granted leave to apply for judicial review, and the respondent has not sought to have that order set aside. Likewise, the respondent has set out a prima facie defence in its statement of opposition and grounding affidavit. Ultimately, this is a case in which any decision is likely to result in some level of injustice. If the case proceeds without security and the applicant fails to prove his case the respondent will be left in a position where its costs likely are irrecoverable. If security is ordered, the applicant will not be able to proceed with a case that, at the very least, has been found to meet the criteria for a grant of leave to apply for judicial review; and a potentially successful case may be stifled.

33. In seeking to strike a balance that carries the least risk of injustice, it seems to me that the application for security for costs should be refused. The respondent established that the applicant resides outside the jurisdiction of the State, the EU or any Lugano Convention country and that he will be unable to meet any order for costs if the substantive application fails. The respondent has established that it has a prima facie defence. The applicant has not established that the reason he is unable to meet an award of security for costs can be attributed to the wrong complained of in these proceedings. Nevertheless, where the consequence of an order for security for costs is that the claim will not proceed and in effect be terminated without any adjudication on the merits, I consider that the just outcome should be that the application should be refused.

34. In those premises I am refusing the respondent’s application for security for costs. As the applicant has successfully opposed the application my preliminary view is that the applicant should be entitled to an order for his costs in respect of the application but with a further order staying the costs orders until the determination of the overall proceedings in the High Court. In case the parties wish to argue for a different outcome in relation to the costs of the application I will list the matter before me at 10.30am on the 29 January 2026.