Khan v Minister for Justice & Equality

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 22 October 2019
• Neutral Citation: [2019] IEHC 704
• Docket Number: [2019 No. 598 J.R.]
• Court: High Court
• Date: 22 October 2019

[2019] IEHC 704

THE HIGH COURT

JUDICIAL REVIEW

Richard Humphreys

[2019 No. 598 J.R.]

BETWEEN

SAIM SHAHEEN KHAN

AND

GAELLE SAURON

APPLICANTS

AND

THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

(No. 2)

Leave to appeal – Judicial review – Costs – Applicants seeking leave to appeal – Whether there were questions of EU law requiring appellate determination

Facts: In Khan v Minister for Justice and Equality (No. 1) (Unreported, High Court, 25th September, 2019) Humphreys J dismissed the applicants’ proceedings in which the main claim was for a substantive injunction preventing the deportation of the first applicant, Mr Khan. The applicants applied to the High Court for leave to appeal, which was opposed by the respondent, the Minister for Justice and Equality. The applicants proposed a number of questions of purported exceptional public importance. The deportation order was revoked on 18th October, 2019, when the first applicant was recognised as a permitted family member. The applicants acknowledged that the case was moot but wanted to appeal because they wanted to deal with the question of costs. The applicants asked for costs because the proceedings became moot by reason of the unilateral act of the Minister in revoking the deportation order. The Minister also applied for costs, and his strongest point was that the case was not yet moot at the time of the substantive decision.

Held by Humphreys J that, assuming for the sake of argument that the applicants were correct that there were weighty questions of EU law requiring appellate determination if not reference to Europe, this case was not a suitable vehicle to further ventilate such issues for two main reasons: the case was moot; and the first applicant did not challenge either the deportation order or the refusal of the review application and under those circumstances his argument that he had been deprived of an effective remedy fell flat. Humphreys J held that the criterion of the public interest did not favour leave to appeal. Accordingly he dismissed the application.

Humphreys J held that while the proceedings became moot by reason of the unilateral act of the Minister in revoking the deportation order, it was not an act that was causally connected to the proceedings, so on the Supreme Court case law, Cunningham v President of the Circuit Court [2012] IESC 39, Godsil v Ireland [2015] IESC 103 and Matta v Minister for Justice and Equality [2016] IESC 45, the court should lean in favour of no order as to costs. Humphreys J held that there was no basis for costs to be given to the applicants. Regarding the Minister’s application, Humphreys J held that because the case was moot, if costs followed the “event” such as it was, there was a significant prospect (subject only to the hypothetical possibility of the Supreme Court granting leave to appeal notwithstanding the mootness of the proceedings) that the applicants would be lumbered with costs at High Court level of a case that had become moot half-way through its natural life-cycle; that could be seen to be slightly unfair on the applicants, maybe particularly so in circumstances where one applicant was very much on track for settled status and the other applicant was an EU national. While placing the strongest possible reliance on the default rule of costs following the event, Humphreys J held that this rule can be modified in certain instances including in moot cases, and that the appropriate modification in the circumstances was to make no order as to the costs of either the substantive hearing or the leave to appeal application.

Application for leave to appeal dismissed. No order as to costs.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 22nd day of October, 2019

1 In Khan v. Minister for Justice and Equality (No. 1) (Unreported, High Court, 25th September, 2019) I dismissed the applicants’ proceedings in which the main claim was for a substantive injunction preventing the deportation of the first-named applicant. Mr. Paul O'Shea B.L. for the applicants now applies for leave to appeal, which is opposed by Mr. John P. Gallagher B.L. for the respondent. I have considered the law in relation to leave to appeal as set out in Glancré Teoranta v. An Bord Pleanála [2006] IEHC 250 (Unreported, MacMenamin J., 13th November, 2006), Arklow Holidays v. An Bord Pleanála [2008] IEHC 2, per Clarke J. (as he then was), I.R. v. Minister for Justice and Equality [2009] IEHC 510 [2015] 4 I.R. 144 per Cooke J., and M.A.U. v. Minister for Justice Equality and Law Reform (No. 3) [2011] IEHC 59 (Unreported, High Court, 22nd February, 2011) per Hogan J. I have also discussed these criteria in a number of cases, including S.A. v. Minister for Justice and Equality (No. 2) [2016] IEHC 646 [2016] 11 JIC 1404...