Wasted Costs
In HO v. Minister for Justice and the Refugee Applications Commissioner, Justice Hogan considered whether “wasted costs” would be awarded against the solicitors of a Nigerian child for bringing what the Minister for Justice claimed was a “hopeless” legal challenge to a refusal of refugee status. The Refugee Applications Commissioner and the Minister argued that the case, along with 282 other similar cases, should be appealed to the Refugee Appeals Tribunal rather than challenged by judicial review. The Minister and Commissioner also argued that Burns Kelly Corrigan solicitors, the solicitors for the applicant child, should have withdrawn the case earlier when the State offered not to seek costs if this was done.
Justice Hogan stated that, “the applicant had a tenable argument that the case fell within one of the discretionary grounds justifying intervention by way of judicial review in respect of a first instance administrative decision. Given the high hurdle which such an applicant would in all likelihood fact, the prospects of success were admittedly not great, but...it cannot be said that the prospects were hopeless to the point where the further continuation of the litigation was plainly wasteful and vexatious”. He therefore held that there was no basis on which to make a wasted costs order and furthermore awarded costs to the solicitors against the State for the wasted costs order application.
Click here to read an Irish Times article on the case.
Click here to read the full judgment.
Zambrano requirement "exceptional"
In Gilani & Anor v. Minister for Justice and Equality, Justice Cooke in the High Court considered the scope of the Zambrano judgment. The Gilani case concerned a Pakistani national with an Irish citizen child. The notable aspect of the case was Justice Cooke’s interpretation of the Zambrano judgment. He stated that, “the circumstance in which a Union citizen can require his or her Member State of nationality to permit a third country family member to reside and work in the Member State is explicitly exceptional and conditional on the fact that the citizen is dependent on the presence of the family member for care and support such that if it is removed”. He also noted that although there was no current intention to deport the applicant, if there was such an issue in the future, the applicant’s entitlement to avoid deportation wouldn’t be based upon the Zambrano judgment but rather on provisions of law protecting family life.
Click here to read the judgment.
Refugee Appeals Tribunal statistics
The Irish Times has reported that almost three-quarters of the expenditure of the Refugee Appeals Tribunal goes on legal costs arising from challenges to its decisions, and that Ireland accepts the least amount of refugee applications at the first instance when compared with the rest of Europe. The Refugee Appeals Tribunal hears appeals from decisions of the Office of the Refugee Applications Commissioner, which is where applicants first apply for asylum in Ireland. The 2011 report of the Appeals Tribunal reveals that 73% of the total expenditure of the Tribunal went on legal fees. The total budget of the Tribunal is €4,331,932. The annual report also reveals that in 2011, 93% of the decisions appealed to the Tribunal were upheld. Further figures show that of the 1,250 decisions upheld by the Tribunal, 234 went to the High Court for judicial review. The Irish Times article quotes the Chief Executive of the Irish Refugee Council as saying that the inclusion of an effective independent appeals process would reduce the need for expensive and lengthy judicial review proceedings.
Click here to read an Irish Times article on these statistics.
UK Home Office on Article 8 balancing factors
Meanwhile, the UK’s Home Office has released its Statement of Intent on Family Migration, which considers future guideline developments in relation to Article 8 (private and family life) of the European Convention on Human Rights. According to the Statement of Intent, the Home Office’s plan is to ask Parliament to approve amended Immigration Rules which will set out an extensive, codified definition of the Article 8 balancing factors. The “balancing factors” are the qualifications under Article 8, which provide that it is lawful to interfere with the exercise of the right where it is in the public interest to do so and where the interference is proportionate to the public interest being pursued. It is the Home Office’s opinion that the Immigration Rules as they currently stand do not properly embody the qualified right under Article 8. The changes will address the balancing exercise under Article 8 so that determination on those factors will not be left to the courts.
Click here to read an article about the Statement of Intent on the UK Human Rights Blog.
Click here to read the Home Office's Statement of Intent.