Premature Judicial Review of an Erroneous Deportation Proposal: No Costs and a Narrow Jurisdictional Exception

Case Note on F.A.A. v Minister for Justice [2025] IEHC 614 (High Court of Ireland, 24 October 2025)

Introduction

This commentary analyzes the High Court’s ex tempore judgment in F.A.A. v Minister for Justice, [2025] IEHC 614, delivered by Gillane J on 24 October 2025. The proceedings arose from a proposal to deport the applicant, a Nigerian national resident in Ireland since 2012, notwithstanding that he held a valid Stamp 4 permission at the time. The Minister later rescinded the proposal, conceding it arose due to an “administrative error.” With the substantive dispute rendered moot, the parties contested who should bear the costs of the judicial review proceedings.

The judgment addresses three interlocking issues:

• Whether judicial review is ordinarily available to challenge a mere proposal to deport under section 3 of the Immigration Act 1999;
• The scope of a narrow “jurisdictional exception” to that general rule;
• How costs should be awarded where proceedings were precipitated by a Ministerial error but were issued prematurely, and later became moot when the proposal was rescinded.

At its core, the decision reinforces a disciplined approach to immigration litigation: proposals to deport are usually to be addressed by representations under section 3, and only exceptionally by judicial review. On costs, the High Court balanced the applicant’s premature resort to litigation against the Minister’s acknowledged error and delayed rescission, resulting in no order as to costs.

Background

The applicant, a Nigerian national, arrived in Ireland in 2012. After an initial asylum application, he was granted permission to remain arising from marriage to an EU citizen and later applied for naturalisation. Independently of his EU-based residence, he held:

• Stamp 1 permission from 12 October 2022 to 11 October 2023;
• Stamp 4 permission from 19 May 2023 to 18 May 2025 (in force at the relevant time); and
• A renewal of Stamp 4 from 19 May 2025 to 18 May 2027.

In January 2024, the Minister made a “marriage of convenience” finding and revoked his EU Treaty rights permission. Crucially, the non-EU Stamp 4 permission remained extant and was not revoked.

On 17 April 2024, the Minister issued a letter proposing to deport the applicant, stating that he was present in the State without permission and that deportation would be conducive to the common good. This was inaccurate: the applicant had a valid Stamp 4 permission.

Through a “pre-litigation” letter of 24 April 2024 (not expressly framed as representations under section 3 of the 1999 Act), the applicant sought clarification and reasons, requesting a response within five days. Before that five-day period elapsed, he issued judicial review proceedings on 26 April 2024. Leave was granted on 1 July 2024. On 7 February 2025—the Minister acknowledged an administrative error and rescinded the proposal.

The applicant sought his costs; the Minister opposed, arguing the proceedings were premature, unnecessary, and inappropriate, and in turn sought costs. The case thus came before Gillane J solely on the question of costs following mootness.

Summary of the Judgment

The High Court refused to award costs to either party. The key holdings were:

• Judicial review does not ordinarily lie to challenge a mere proposal to deport. The proper course is to engage the statutory section 3 process and make representations, unless the very act of proposing is outside the Minister’s jurisdiction.
• The existence of an extant Stamp 4 permission did not, in principle, deprive the Minister of jurisdiction to make a proposal to deport. Permissions can be revoked in appropriate circumstances; hence, the “jurisdictional exception” is narrow and was not engaged.
• Assessing reasonableness at the time of issue, the applicant’s proceedings were premature: his pre-litigation letter neither explicitly flagged the extant Stamp 4 permission nor awaited the five-day period he set himself. The matter might have been “decommissioned” by correspondence without recourse to judicial review.
• However, the Minister’s underlying error and the delay in formally rescinding the proposal until February 2025 weighed against awarding costs to the Minister.

Outcome: no order as to costs.

Detailed Analysis

1) Precedents Cited and Their Influence

Habte v Minister for Justice and Equality [2021] 3 I.R. 627

Gillane J relied on Habte to reaffirm the orthodoxy: judicial review is generally not appropriate in respect of a mere proposal to deport. As Murray J explained, judicial review typically addresses acts that affect a legally enforceable right; the decision to initiate a procedure is only exceptionally reviewable. This sets a high threshold for litigating against proposals rather than final decisions.

Leng v Minister for Justice and Equality [2015] IEHC 681

Humphreys J stated that a proposal to deport, as such, does not infringe rights and is ordinarily not the subject of judicial review. Critically, Leng carves out a narrow margin for exceptional cases in which the Minister lacks jurisdiction to make the proposal (for example, in the case of an EU citizen entitled to reside). Leng also maps the correct pathway: recipients should submit representations to the Minister under section 3 before seeking judicial review.

E.E.O. (Nigeria) v Minister for Justice and Equality [2018] IEHC 399

This case adds a pragmatic dimension: obvious difficulties in a proposal can often be “decommissioned” by correspondence, making judicial review unnecessary. Gillane J adopted this approach, emphasizing that the applicant’s failure to explicitly flag his extant Stamp 4 in correspondence undermined the necessity of immediate litigation.

J.I.D. (a minor) v Minister for Justice [2024] IEHC 164

Distinguished by the Court. In J.I.D., the correspondence made clear that a deportation order would be made and that consideration of right to remain would follow only after, thereby escalating immediacy and justifying court intervention. In the present case, no such inevitability or procedural foreclosing was demonstrated.

2) Legal Reasoning

a) The non-reviewability of “proposals” and the narrow jurisdictional exception

The Court reaffirmed the established position that judicial review is usually inappropriate in respect of a section 3 proposal to deport. A proposal is a procedural step that, by design, invites representations within 15 working days before any substantive decision is made. Only in “extremely limited” circumstances—where the Minister lacks jurisdiction to make the proposal at all—does judicial review become a proper first response.

The applicant argued that because he held a valid Stamp 4, the Minister lacked jurisdiction to issue any proposal. Gillane J rejected this, reasoning that the existence of a current permission does not, per se, disable the Minister from proposing deportation: permissions can be revoked; thus the Minister is not in principle stripped of jurisdiction to initiate the section 3 process. The judgment therefore narrows any inclination to treat factual error in a proposal (here, the incorrect assertion of no permission) as a jurisdictional nullity.

b) Proper use of the statutory scheme under section 3 of the Immigration Act 1999

Section 3 structures the Minister’s proposal to deport and the applicant’s right to respond:

• The Minister must notify the proposal and reasons;
• The applicant has 15 working days to make written representations;
• The Minister must consider any representations before deciding whether to make a deportation order;
• The proposal notice must include specified information, including the right to make representations.

The applicant chose not to make statutory representations, characterizing his correspondence as a “pre-litigation letter” and asserting that engaging the section 3 process would be inappropriate or prejudicial. The Court firmly disagreed. Echoing Leng and E.E.O., Gillane J held that the proper initial response was to engage the statutory process or, at minimum, to identify and explain the obvious error (the extant Stamp 4) so that the Minister could correct course.

c) Prematurity and reasonableness of issuing proceedings

Gillane J assessed the reasonableness of issuing proceedings at the time they were initiated. Two features were decisive:

• The pre-litigation letter did not explicitly advise the Minister of the extant Stamp 4. A clear, factual correction could have “decommissioned” the proposal without litigation.
• Despite setting a five-day response window, the applicant issued proceedings before that period expired, with no supervening urgency to justify this step.

These factors led the Court to view the proceedings as premature. That finding weighed decisively against awarding costs to the applicant.

d) Balancing fault and delay in the exercise of costs discretion

Although the proceedings were premature, the Minister’s role could not be ignored. The proposal letter was erroneous, and rescission took place only on 7 February 2025—long after leave had been granted and the case had come before the High Court on several occasions. This Ministerial error and delay tempered the normal consequences of prematurity and led the Court to decline the Minister’s request for her own costs. The result was a balanced, equitable outcome: no order as to costs.

3) Impact and Significance

Narrowing the jurisdictional exception

The judgment makes clear that even where a proposal letter contains an error—such as incorrectly asserting that a person lacks permission—the Minister is not necessarily “without jurisdiction” to propose deportation. Because permissions are revocable, the Minister retains the jurisdiction to initiate the section 3 process. This positions the “jurisdictional exception” as truly exceptional, likely confined to scenarios analogous to those posited in Leng (e.g., proposals against an EU citizen actually entitled to reside).

Recalibrating practitioner strategy in immigration proposals

The message to practitioners is unambiguous:

• Engage the section 3 representations process promptly and substantively whenever a deportation proposal is received, unless there is a genuine jurisdictional bar.
• If the proposal contains an obvious factual or legal mistake, identify it expressly and immediately in correspondence, providing supporting documentation (e.g., a copy of a current permission).
• Allow a reasonable period for the Department to correct an obvious mistake before issuing proceedings. Self-imposed deadlines should be respected unless a truly urgent supervening factor arises.

Failure to adopt this approach may render proceedings premature and undermine any subsequent application for costs, even where the Minister ultimately concedes error and rescinds the proposal.

Costs in moot immigration judicial reviews

The Court’s approach aligns with a “reasonableness at the time of issue” test, nuanced by a contextual balancing of fault:

• Premature litigation against a proposal will generally disentitle an applicant to costs.
• Where the Minister’s own error triggered the proceedings, and especially where there is delay in correction, the Minister may also be denied costs.
• The result may be a cost-neutral outcome, particularly where both sides contributed to the litigation’s course—one by error and delay, the other by premature issuing.

Administrative justice and institutional responsiveness

While not penalized in costs, the Minister’s delay in rescinding the erroneous proposal is not ignored. The decision encourages faster departmental correction of acknowledged mistakes, thereby reducing unnecessary court attendances and litigation costs. It also signals that departmental error alone will not automatically shift costs to the State where the applicant’s litigation choice was unreasonable at inception.

Complex Concepts Simplified

• Proposal to deport vs Deportation order: A “proposal to deport” is a preliminary step under section 3 of the Immigration Act 1999. It triggers a right to make representations within 15 working days. A “deportation order” is the final decision to remove a person; it is typically the reviewable act.
• Judicial review (JR): A legal process by which the High Court reviews the lawfulness of a public body’s decision-making process. JR is usually reserved for decisions that affect enforceable rights, not for preliminary procedural steps like proposals.
• Jurisdictional exception: An exception to the general rule against reviewing proposals, where the decision-maker lacks legal power to act at all (e.g., proposing to deport someone who, as a matter of law, cannot lawfully be proposed for deportation). It is a narrow category.
• Stamp permissions: Immigration residence “stamps” (e.g., Stamp 1, Stamp 4) signify the type and conditions of leave to remain. Stamp 4 generally indicates a strong permission to reside and work without additional permit requirements. Crucially, these permissions can be revoked in appropriate circumstances.
• Marriage of convenience: An administrative finding that a marriage was entered into primarily to secure immigration status. Such a finding can affect EU Treaty rights permissions, but does not automatically revoke separate, non-EU permissions unless expressly revoked.
• Mootness: A case becomes moot when the underlying dispute no longer requires resolution (here, because the proposal was rescinded). The court retains discretion over costs despite mootness.
• Ex tempore judgment: A judgment delivered orally by the judge at the time of the hearing, often with reasons given immediately rather than in a reserved written judgment.

Practical Takeaways

• Before issuing judicial review against a deportation proposal, make clear and documented section 3 representations, expressly identifying any obvious factual errors and enclosing proof (e.g., copies of current permissions).
• Allow a reasonable period for departmental response; do not issue proceedings before the expiry of your own stated timeframe absent genuine urgency.
• Reserve judicial review for cases where there is a true jurisdictional bar or where correspondence indicates that the process is being short-circuited (as in J.I.D.).
• Where proceedings become moot due to rescission, expect the court to scrutinize both sides’ conduct. Prematurity may defeat an applicant’s claim to costs; administrative error and delayed rescission may, equally, defeat a respondent’s claim.

Conclusion

F.A.A. v Minister for Justice crystallizes two key aspects of Irish immigration litigation. First, it reaffirms that proposals to deport are ordinarily not amenable to judicial review and that the “jurisdictional exception” is tightly confined; a mere factual mistake in a proposal does not, without more, deprive the Minister of jurisdiction. Second, on costs, it demonstrates a balanced, fact-sensitive exercise of discretion in moot cases: while the applicant’s premature resort to litigation precluded an award of costs in his favour, the Minister’s error and delayed rescission likewise prevented an award of costs to the State. The result—no order as to costs—reflects a principled calibration of responsibility and reasonableness.

Practitioners should heed the Court’s emphasis on engaging the section 3 process, using focused correspondence to correct obvious mistakes, and avoiding premature judicial review. Future disputes over deportation proposals will likely turn on whether the jurisdictional exception is genuinely engaged and on the parties’ conduct in the crucial period between the proposal and any decision to litigate.