High Court: Applicants awarded costs where Minister failed to execute orders removing them from the State

About this case:

• Citation:
  [2026] IEHC 489
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Mr Justice Anthony Barr

Delivering an ex tempore judgment for the High Court, Mr Justice Anthony Barr concluded, “I am satisfied that in these circumstances the fact that the proceedings became moot was due to the unilateral act, or more properly the unilateral inaction on the part of the Minister. Therefore, I am satisfied that the applicants are entitled to an order for their costs in respect of the proceedings that have become moot.”

Background

The applicants were each served with return orders informing them that they would be removed from the State to a third country.

The first applicant obtained leave to challenge the return order by way of judicial review on 2 September 2025, and the second applicant obtained leave on 15 September 2025.

The first applicant’s proceedings were rendered moot on 8 November 2025 when the six-month statutory time limit for the execution of the return order pursuant to s.51C(2) of the International Protection Act 2015 expired.

The second applicant’s proceedings similarly became moot on 5 December 2025 following the expiry of that six-month time limit.

The Chief State Solicitor then wrote to the solicitors for the applicants suggesting that the proceedings should be struck out with no order as to costs as they had become moot.

The applicants’ solicitors asserted that as the proceedings became moot due to the unilateral act of the Minister in failing to execute the return orders during their period of validity, they were entitled to the payment of their costs incurred up to the date upon which the proceedings became moot.

The respondents contended that as the proceedings became moot due to operation of law, this did not constitute a unilateral act of the Minster and therefore no order as to costs was appropriate.

The High Court

Having considered the relevant legal principles, the court examined the affidavit evidence tendered by the respondents which explained that in the first applicant’s case, the respondents had only been made aware of the existence of A.I.’s judicial review proceedings on 12 September 2025 when four of the six-month period for executing the return order had elapsed.

The deponent further stated that the execution of a return order is an operational matter conducted by the Minister in conjunction with the Garda National Immigration Bureau (GNIB), and that the process of giving effect to a return order involves a number of administrative and logistical matters of some complexity.

In that regard, the deponent pointed to issues including the need to organise the schedules of GNIB escorts to allow sufficient time for travel, the booking of flights for the applicants and any escorts and medical staff required, and the obligation to transmit all necessary information in good time.

Mr Justice Barr highlighted that in the course of the respondents’ affidavits, there was no indication that there were any particular difficulties encountered in relation to the applicants in the cases before the court.

In particular, the court noted the respondents’ concession that A.I. had attended his initial appointment with the GNIB on 3 June 2025 and had complied with subsequent appointments on 9 July 2025 and 7 October 2025, finding that no reason had been given as to why the Minister did not execute the return order in either case.

The judge was satisfied that the proceedings had become moot due to “unilateral inaction” on part of the Minister and as such, the applicants were entitled to their costs.

Noting the respondents’ reliance on AA v Minister for Justice (Unreported, High Court, O’Higgins J., 30 January 2025) and AH v Minister for Justice (Unreported, High Court, Phelan J., 11 April 2025), in which the applicants were awarded 50% of their costs in relation to proceedings which had become moot, Mr Justice Barr opined that it was not entirely clear why the orders for costs in those cases were limited to 50% of the applicants’ costs.

The court contemplated that this result probably arose from the fact that the Court of Justice of the European Union had determined that the grant of an injunction preventing the execution of a transfer order did not stop the running of the statutory six month time limit provided for in the legislation, and that in AA and AH, the applicants had obtained injunctions preventing the execution of the relevant orders such that they would expire before they could be executed.

Mr Justice Barr concluded that “As the decision of the CJEU could be seen as being somewhat of an extraneous event, it was probably on that account that the applicants were awarded 50% of their costs.”

Conclusion

Accordingly, and in the absence of any extraneous event or suggestion that the applicants acted in any way disentitling them to an order for their costs, the High Court awarded the applicants their costs up to the date upon which their proceedings became moot.

A.I. v Minister for Justice, Home Affairs and Migration; A.D. v Minister for Justice & Ors [2026] IEHC 489