E v International Protection Appeals Tribunal - Costs Ruling

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  E v The International Protection Appeals Tribunal & ors FOM v The Minister for Justice & Ors (Approved) [2026] IESC 17 (19 March 2026)

URL: https://www.bailii.org/ie/cases/IESC/2026/2026IESC17.html
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[2026] IESC 17 | | |
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AN CH?IRT UACHTARACH

THE SUPREME COURT

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[2026] IESC 17

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O'Malley J.

Woulfe J.

Collins J.

Donnelly J.

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Supreme Court Record No.: S:AP:IE:2025:000051

Court of Appeal Record No.: A:AP:IE:2024:000145

High Court Record No.: 2023/640 JR

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BETWEEN/

KE

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Applicant/Respondent

-and-

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THE INTERNATIONAL PROTECTION APPEALS TRIBUNAL, THE MINISTER FOR JUSTICE, IRELAND AND THE ATTORNEY GENERAL

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Respondents/Appellants

**

AND

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Supreme Court Record No.: S:AP:IE:2025:000052

Court of Appeal Record No.: A:AP:IE:2024:000144

High Court Record No.: 2023/104 JR

BETWEEN/

FOM

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Applicant/Respondent

-and-

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THE MINISTER FOR JUSTICE, IRELAND AND THE ATTORNEY GENERAL

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Respondents/Appellants

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RULING OF THE COURT ON COSTS

Introduction

1. In these proceedings the respondents challenged decisions made in respect of international protection admissibility regarding the first respondent (KE), and refoulement and return regarding the second respondent (FOM).? The High Court granted orders of certiorari and declaratory relief, on the basis of a finding that the State was in breach of European Union law requirements in respect of the mechanism used to transfer international protection applicants back to a "safe third country". ?

2. The appeals of the State parties were held by the Court of Appeal to be moot in the light of certain legislative changes enacted after the High Court judgment. This Court has now reversed that decision (see [2026] IESC 8). The remaining issue is the question of costs.

The High Court Orders

1. In respect of KE, the High Court granted:

i) An order of certiorari quashing the decision of the International Protection Appeals Tribunal, which affirmed the first instance decision of the International Protection Office that the application for international protection was inadmissible;

ii) An order of certiorari quashing the determination of the Minister for Justice that the application should be deemed inadmissible; and

iii) A declaration that the designation of the United Kingdom as a safe third country was contrary to European Union law.

1. In respect of FOM, the High Court granted

i) An order of certiorari quashing the decision of the International Protection Appeals Tribunal finding that there would be no violation of the principle of non-refoulement were the applicant to be returned to the United Kingdom;

ii) An order of certiorari quashing the return order made by the Minister for Justice, which required the applicant to leave the State and return to the United Kingdom; and

iii) A declaration the designation of the United Kingdom as a safe third country was contrary to European Union law.

1. The High Court granted the State parties leave to appeal, noting in the orders that the applicants did not object. The questions on which leave was granted were:

i) Whether the High Court was correct to find that the Safe Third Country Order is unlawful in the absence of safeguards mandated by Article 38(1)(b) Asylum Procedures Directive (recast) by virtue of the application of Article 3(3) Dublin III Regulation (specifically, the safeguard that Ireland must be satisfied that there is no risk in the UK of a serious threat to a civilian's life or person by reason of indiscriminate violence in situations of international or internal armed conflict, i.e. "serious harm" as defined by Article 15(c) Qualification Directive (recast));

ii) Whether the High Court was correct to find that the "rules of methodology" contained in s.72A IPA 2015 were insufficient to ensure against return to a designated safe third country in breach of minimum requirements of EU law, specifically Article 27(1) Asylum Procedures Directive and/or Article 38(1) Asylum Procedures Directive (recast);

iii) Whether the High Court was correct to find that the system established in law providing for the return of an international protection applicant to a designated safe third country is incompatible with EU law by reason of its failure to provide for a power to conduct a broader rights scrutiny at the point of return, in cases where such scrutiny is asserted to be warranted?

1. Leave to cross-appeal was also granted (with no objection by the State parties) on the following questions:

i) Whether the High Court was correct in finding that Ireland's power to designate a "safe third country" was not lost by reason of the nontransposition of the provisions found at Articles 25 and 27 of Council Directive 2005/85/EC of 1st December 2005 (the "Procedures Directive") and that there is no impediment to Ireland applying a safe third country designation after the transposition deadline? ([2024] IEHC 183 paragraphs 136 -146)

ii) Whether the High Court was correct in finding that: (i) the relatively "new concept" of the principle of non -regression in EU law is not offended by the State's subsequent adoption of the safe third country designation? and (ii) the principle of non-regression cannot be relied upon to find incompatibility with EU law by reason of the "reintroduction of a safe third country designation regime" which was not, per se, incompatible with EU legal order? Id. 147 -155

iii) In relation to data transfer whether the High Court erred in finding that: (i) if any breach of data protection rights has been occasioned by the safe third country system, this would not render s.72A of the 2015 Act or S.I 725/2020 ultra vires the provisions of EU law, or that any non-equivalence with the data protection provisions of the Dublin III Regulation was immaterial. Id. 240-241; and (ii) in passing on the determination of the lawfulness of data transfer to the U.K. in the immigration context for proceedings in which it was "fully argued on an appropriate evidence basis" where the Applicants had sought declaratory relief in that regard?

1. Leave was refused in respect of certain other issues raised by the applicants. They were awarded their costs for two days of the hearing, plus the costs of the costs application.

The Court of Appeal

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1. After the High Court judgment, the International Protection Act 2015 was amended to introduce new procedures in relation to inadmissible applications. The statutory instrument designating the United Kingdom as a safe third country was revoked. As a result of these developments, the issue of mootness was raised in the Court of Appeal.

2. Having heard submissions on this issue only, the Court of Appeal informed the parties that it had determined that the appeal of the State parties was moot, with reasons to be given in a reserved judgment. The applicants withdrew their cross-appeal. The court awarded the applicants their reasonable costs for a one-day hearing and made no order for the costs of the cross-appeal. The judgment was delivered on the 25 th February 2025 (see [2025] IECA 43).

The Appeal to this Court

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1. The Court has now held that the appeals of the State parties against the decision of the High Court are not moot. They say that they have been entirely successful on the issue. They seek an order granting them:

i) the costs of this appeal

ii) the costs of the mootness hearing in the Court of Appeal, and the costs associated with the costs application in that court.

1. They say that the costs of filing the appeals and cross-appeals should be reserved.

2. The respondents submit that they should be granted part of their costs in this appeal under the principles set out in Little v Chief Appeals Officer [2024] IESC 53. In the alternative, they say that the costs should be reserved for determination by the Court of Appeal after the substantive appeal has been decided there. Their fallback position is that an order for costs should not be made against them because the proceedings were and are public interest/test litigation matters. (They are test cases because they were selected by the High Court as "pathfinder" cases out of a list of cases raising the same issues.)

3. With reference to Little, the respondents note that Murray J. said that an award of costs to an unsuccessful public interest litigant should be confined to cases of real substance with clear, significant public interest, which typically concern "foundational" constitutional or EU issues, conspicuous novelty, far-reaching general importance, clarification of obscure or unexplored areas, or where the claimant lost overall but won a significant issue. They say that the instant litigation is clearly public interest, and quote the description in the judgment of Donnelly J of the issue as being of importance in terms of constitutional principle concerning the imposition of EU law obligations on the State.

4. Donnelly J. also said that the source of the State's obligations (that is, whether the State, having decided not to opt into a particular EU measure could nonetheless ?be bound by it, or whether the process for determining the respondents applications was governed exclusively by domestic law) was of crucial importance and that it was highly undesirable that determination of this issue should occur without appellate consideration. It is submitted by the respondents that this analysis puts the case into the "foundational constitutional" category.

Decision

1. The respondents are correct in saying that the underlying issues in these cases are of significant importance., The decision of the Court of Appeal had the effect, however, that those issues have yet to be debated and determined. They were not the subject of either the Court of Appeal judgment or the judgments of this Court. The sole issue argued at appellate level has been the question of mootness.

2. In that respect, there was no dispute about the applicable principles - the Court was not, for example, asked to revisit any of the authorities or to develop a new analysis of the mootness doctrine. The question of mootness was decided by reference to case-specific features. ?

3. In those circumstances the appeal cannot be seen as falling into any of the categories described in Little.

4. The Court takes account of the fact that these two matters were "pathfinder" cases selected out of a list of cases raising similar issues. The fact that the applicants in those other cases are not exposed to any costs liability in these appeals cannot, however, entirely dissipate the effects of the decision made by these respondents to argue the issue of mootness.

5. In all the circumstances, the Court will award to the State parties their full costs in the Court of Appeal and 50% of their costs in this Court. The High Court costs, of course, remain to be finally determined in the substantive appeal.

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URL: https://www.bailii.org/ie/cases/IESC/2026/2026IESC17.html