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Hamza v The Minister For Justice (Approved)
Smart Summary
Factual and Procedural Background
This judgment was delivered by Judge O'Donnell on 14 January 2026. The Respondent applied for security for costs under Order 29, rule 1 RSC in proceedings in which the Applicant obtained leave (24 June 2024) to apply for judicial review of a decision upholding a refusal of a visa. The Applicant, a national of Country A, had obtained a general employment permit valid 1 November 2022 to 31 October 2024 based on an offer of employment as a chef de partie. The visa was refused at first instance on 16 January 2023 and the refusal was upheld by letter dated 23 January 2024. The Respondent brought a notice of motion dated 30 May 2025 supported by an affidavit from Attorney Thornton of the State Solicitor's Office seeking security for costs; the Applicant filed no affidavit in response. The Respondent estimated party-and-party costs of defending the case at €20,000 and requested security equal to one third (€6,670). The Applicant contended inability to pay and argued special considerations in judicial review immigration cases.
Legal Issues Presented
- Whether the Respondent is entitled to an order for security for costs under Order 29 RSC in these judicial review proceedings challenging a visa refusal.
- How the court should exercise its discretion having regard to (a) the Applicant's residence outside the State, EU or Lugano countries, (b) whether the Respondent has a prima facie defence, and (c) any countervailing factors or special circumstances.
Arguments of the Parties
Respondent's Arguments
- There is a prima facie defence to the Applicant's judicial review claim; the Respondent contests the substantive claim.
- The Applicant is resident in Country A (outside the State, the EU and Lugano countries), giving a prima facie basis for security for costs.
- The case does not engage human rights, EU law or constitutional rights.
- The Respondent relied on the State Solicitor's Office correspondence estimating total defence costs at €20,000 and requested one-third as security (€6,670).
Applicant's Arguments
- The Applicant cannot afford to provide the security sought.
- The Applicant questioned whether a prima facie defence existed, given the prior grant of an employment permit.
- The Applicant argued that strict private-law principles should be tempered in judicial review of State decisions (risk of insulating State decision-making) and relied on the court's overriding discretion (citing Gordon v. Irish Racehorse Trainers Association).
- The Applicant noted that the absence of particularisation of the Respondent's costs estimate undermined the demand.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Farrell v. Bank of Ireland [2012] IESC 42 |
Balancing defendant's right to recover costs against plaintiff's constitutional right of access to the courts; default position that security should not be ordered absent significant countervailing factors; presence outside jurisdiction may justify security because of difficulty in recovering costs. |
The court relied on Farrell's articulation of the balance required and the need for additional factors before ordering security; it applied Farrell to recognise both the significance of the Applicant's residence outside the jurisdiction and the requirement to identify countervailing factors before depriving access to court. |
| Cyr v. Planitas Airline Systems Ltd [2023] IEHC 149 |
Referenced for observations on impecuniosity and security for costs (as authority cited by Respondent). |
The court noted the Respondent's reliance on observations in Cyr that impecuniosity alone is not sufficient to refuse security for costs and considered those observations in its balancing exercise. |
| A.K. (Somalia) v. Minister for Justice and Equality [2018] IEHC 434 |
Set out test in immigration JR context: (a) prima facie defence, (b) applicant resident outside Ireland/EU/Lugano, (c) discretion favouring order; emphasised human rights element and that ordering security may effectively determine the action. |
The court distinguished A.K. on facts (there the applicant had Stamp 4 and human rights issues); it accepted A.K.'s concerns that ordering security can effectively dismiss a case and that such factors weigh against making an order where the applicant's absence results from the challenged decision. |
| G.T. v IPAT & Ors [2025] IEHC 473 |
Applied precedents in an immigration/international protection JR; recognised special circumstances (applicant had been in-jurisdiction when proceedings commenced and was deported, impecuniosity would effectively determine proceedings). |
The court used G.T. to illustrate circumstances where security was refused because ordering security would prevent a litigant, rendered outside jurisdiction by the challenged decision, from having the case heard; the present case was distinguished on the absence of human rights/EU law and lack of prior residence in the State. |
| Gordon v. Irish Racehorse Trainers Association [2021] IECA 128 |
Referenced for the court's "overriding discretion" in exercising procedural powers. |
The Applicant relied on Gordon to urge a broad discretionary approach; the court acknowledged the discretion but applied it in context and exercised it against ordering security in this case. |
Court's Reasoning and Analysis
The court began by citing the relevant provisions of Order 29 and Order 84 (judicial review terms as to costs), noting the broad discretion available. It applied the Farrell framework requiring a balance between the defendant's ability to recover costs and the plaintiff's constitutional right of access, and recognised that a plaintiff resident outside the State may give a prima facie basis for security because of enforcement difficulties.
The court found as established on the material before it that: (a) the Applicant resides in Country A (outside the State/EU/Lugano), (b) the Applicant is unable to meet any security order, and (c) the Respondent has articulated a prima facie defence, supported by its statement of opposition and affidavit. The court considered and distinguished immigration authorities (A.K. and G.T.) on the basis that those cases involved human rights/EU law and applicants who had resided in the State or where absence followed the challenged decision.
Balancing competing risks of injustice, the court observed that ordering security would likely terminate the action without adjudication on the merits and that refusing security risked the Respondent being unable to recover costs if successful. Taking into account systemic concerns (delay and potential chilling of visa challenges) and the absence of special circumstances favouring the Applicant, the court exercised its discretion to refuse the application for security for costs. The court also addressed costs of the security application, indicating a preliminary view that the Applicant should be awarded those costs but that any costs order should be stayed pending determination of the overall proceedings; the court listed a hearing on costs for 29 January 2026.
Holding and Implications
SECURITY FOR COSTS APPLICATION REFUSED
Direct consequences: the Respondent's notice of motion for security for costs dated 30 May 2025 was refused and the Applicant may proceed with the substantive judicial review. The court indicated a preliminary view that the Applicant should recover the costs of the security application subject to a stay of enforcement until the final determination of the main proceedings, and listed the matter for further hearing on costs on 29 January 2026 at 10.30am. The judgment does not purport to establish new precedent; it applies and distinguishes existing authorities to the facts of this case.
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