K.G, K.J.S. and E.G. (an Infant Suing by and through Her Mother and Next Friend K.J.S.) v Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Ms Justice Ní Raifeartaigh
• Judgment Date: 24 September 2021
• Neutral Citation: [2021] IECA 242
• Docket Number: Appeal Record No.: 2019 55
• Year: 2021
• Court: Court of Appeal (Ireland)

Between/

K.G, K.J.S. and E.G. (An Infant Suing by and through Her Mother and Next Friend K.J.S.)

Appellants

and

Minister for Justice and Equality

Respondent

[2021] IECA 242

Donnelly J.

Ní Raifeartaigh J.

Power J.

Appeal Record No.: 2019 55

THE COURT OF APPEAL

UNAPPROVED

NO REDACTION NEEDED

JUDGMENT of Ms Justice Ní Raifeartaigh delivered on the 24th day of September 2021

The issue in the case

1 . This is an appeal in respect of a decision made by the High Court on the costs of proceedings which had become moot on a date after the institution of the proceedings. The decision of the High Court was to make no order as to costs. The appellants submit that they should have been awarded their costs. The case raises the question of how to apply the authorities on costs in a case which has become moot since the commencement of proceedings, including in particular Cunningham v. President of the Circuit Court & DPP, 1 Godsil v. Ireland, 2 Matta v. Minister for Justice and Equality 3 and P.T. v. Wicklow County Council. 4 The application of the principles set out in those authorities depends in this case upon a number of matters, including (a) the specific chronology of events, (b) the specific terms on which leave to bring judicial review proceedings was sought and obtained and (c) identification of the ‘event’ which can be said to have rendered the proceedings moot.

2 . An important feature of the case is that the High Court judge who granted leave did so in more confined terms than those upon which leave had been sought by the appellants. As will be seen in further detail below, the appellants had sought an injunction preventing the deportation of the first named appellant as well as declaratory relief, but the ‘leave’ judge did not grant leave to seek the injunctions but instead confined the leave to the declaratory relief only. A key question is whether the Minister's decision in July 2018 to grant an undertaking not to deport, which issued after the leave had been granted, was caused by institution of the proceedings and/or what precise connection it had with those proceedings, in circumstances where the appellants had not been given leave to agitate the legal question of injunctive relief in the proceedings. The appellants contend that the Minister's reversal of position on the giving of an undertaking was caused by the proceedings and that the undertaking was the event which caused the proceedings to become moot; and they contend that the Minister's undertaking constituted a “unilateral act” within the meaning of the relevant authorities and, therefore, that a costs order should be made against the Minister. The respondent contends that the proceedings did not become moot until the Minister granted the first named appellant's application for residence as a “permitted family member” in December 2018 and that this decision was made in the ordinary course of events simply because the application was made, and not because court proceedings had been brought. The latter was the interpretation favoured by the trial judge. The dispute therefore centres upon how to identify the event which caused mootness.

Facts and timeline

3 . The first named appellant is a Mauritian national, the second named appellant is a Polish citizen, and the third named appellant is their child who is of pre-school age. The chronology of dates is relevant to the legal issues in this case.

4 . The first named appellant arrived in the State on the 3 October 2007 on a student permission. It was cancelled because he was not attending his course. He undertook to leave the State by the 27 December 2008 but did not do so and remained in the State unlawfully thereafter. According to the affidavit of one of the State deponents, a deportation order was made on 24 June 2011. He remained in the State and was ultimately arrested in 2018, some 7 years later.

5 . Meanwhile, the second named appellant, who is a Polish national and therefore an EU citizen, arrived in the State in May 2012 and met the first named appellant in August 2013. They formed a relationship, moved in together in 2014, and their child was born on the 7 January 2015. At no stage during this period did the first named appellant seek to regularise his position, and the deportation order remained extant. It appears to be the case that the first named appellant did instruct a solicitor in January 2018 to make certain applications on his behalf in order to regularise his position, but that the solicitor did not implement his instructions. When matters came to a head with the first named appellant's arrest in June 2018, he instructed a different solicitor to deal with his affairs.

6 . The first named appellant was arrested on 14 June 2018 and detained in Cork prison. At this point and for the first time, correspondence was entered into with the Minister by the (newly instructed) solicitor and three applications were made on the appellant's behalf. This was some 7 years after the making of the deportation order, and some three years after the birth of the child (the third named appellant). The flurry of activity was undoubtedly prompted by the first named appellant's arrest, detention and impending deportation.

7 . The solicitors for the first named appellant made a number of applications on his behalf. They made (1) a request to revoke the deportation order under s.3(11) of the Immigration Act 1999, (2) an application for an EU residence card as a “permitted member” pursuant to the European Communities (Free Movement of Persons) Regulation 2015, S.I. 548/2015 (hereinafter “The 2015 Regulations”), and (3) an application for permission to reside in the State pursuant to the decision in Zambrano. 5 In addition, they made at least three applications to the Minister for an undertaking that he would not be deported pending the outcome of these applications. The Minister refused to grant any such undertaking on a number of occasions: the 20 and 21 June 2018, the 25 June 2018, and the 27 June 2018, each of which refusal was on a date prior to the institution of judicial review proceedings.

8 . On 2 July 2018, an application for leave to bring judicial review proceedings was made. Part of the application consisted of an application for an injunction. However, and importantly, Keane J. (the ‘leave’ judge) granted partial leave only; he granted leave to seek declaratory relief only and refused leave in respect of the injunction sought. He made the application returnable for one week later. There is no formal record of what Keane J. said on this date or why he refused leave in respect of the injunction.

9 . The precise terms of the reliefs originally sought were as follows:

• (1) An injunction enjoining the Minister from removing the first applicant from the State until such time as a decision has been arrived at on applications currently pending before him;

• (2) Such declaration(s) of the legal rights and or legal position of the applicant and/or persons similarly situated as the court considers appropriate;

• (3) An interim and/or interlocutory injunction preventing the Minister from removing the applicant from the State pending the determination of the proceedings.

10 . The wording of relief (2) sought above mirrors the wording in Practice Direction 78 (High Court), which provides at number 8(c) as follows:

“An applicant may however in any case, in addition to substantive relief by way of certiorari or mandamus, seek as a sole declaratory relief “Such declaration(s) of the legal rights and/or legal position of the applicant and/or persons similarly situated as the court considers appropriate”, or a relief to the like effect. The precise terms of any such declaration sought can then be addressed by way of legal submissions within the confines of the legal grounds pleaded in the statement of grounds.”

11 . It is important to note that the ‘leave’ judge, Keane J, granted partial leave only; he granted leave to seek the declaration(s) at (2) above but not the injunctive relief sought at ( 1) or (3). Further, he limited the relevant ground to ground F(1), which reads as follows:

“ The applications pending before the respondent disclose a fair question to be tried concerning the position of the first named applicant in the State and raised the real possibility that the first named applicant may be granted residence in the State. The applicants have presented an arguable case for the revocation of the deportation order (either by way of discretion or by operation of law) and for the first named applicant to be granted permission to reside in the State on the basis of his relationships with the other applicants herein.”

12 . One might have thought that this particular ground related more to the injunctive relief than the other grounds, insofar as it contains phrases such as “a fair question to be tried”, “an arguable case” and the like. However, it also refers to “the position of the first named applicant in the State” and pleads that revocation of the deportation order should be granted together with permission to remain “on the basis of his relationships with the other applicants”. Thus, it is clear that the basis on which leave was given to seek this relief concerned the question of the first appellant's relationship with the other appellants (under EU law) and rights or potential rights arising from those relationships.

13 . The case was made returnable for one week thereafter. The notice of motion was served by hand on 2 July 2019. Four days later and by letter dated 6 July 2019 sent from the CSSO to the solicitor for the appellant, the Minister gave an undertaking in the following terms:

“We are instructed to confirm that the Minister will grant an undertaking not to deport the first named applicant pending the outcome of Mr. G's application pursuant to section 3(11) of the Immigration Act 1999 made on...