Full Practice Direction

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High Court

Asylum, immigration and citizenship list

HC81

1. Proceedings to which this Practice Direction applies.
2. Monday List.
3. Parties.
4. Pleadings generally.
5. Affidavits generally.
6. Opposition papers generally.
7. Ex parte applications.
8. Order granting leave and service of proceedings
9. Interim, interlocutory or procedural applications.
10. Amendment of pleadings or orders.
11. Sub-lists within the Asylum List.
12. The Detention List.
13. The List for Fixing Dates.
14. Written legal submissions generally.
15. Lodging of papers for substantive hearings.
16. Time limits for oral submissions at hearings .
17. General obligations of practitioners .
18. Referral of papers where potential illegality has been disclosed. 19
19. Leave to appeal.
20. Non-compliance with this Practice Direction.
21. Commencement.
22. Previous Practice Directions.

1. Proceedings to which this Practice Direction applies.

This Practice Guide, except where otherwise specified herein, applies to the following:

any proceedings including relief under section 5 of the Illegal Immigrants (Trafficking) Act, 2000, as amended from time to time;
any other proceedings including relief relating to asylum, subsidiary protection, immigration, freedom of movement, naturalisation, citizenship, marriages, civil partnerships or relationships allegedly entered into for the purpose of immigration, or areas relating to any of the foregoing; and
any proceedings including relief in respect of EU law rights relating to any of the foregoing matters.

2. Monday's List

. Except in cases of urgency or during vacation, applications for leave to apply for judicial review (“applications for leave”) on the Monday in Term (“Monday List”) shall be made in the first instance to the Judge in charge of the Asylum, Immigration and Citizenship List (“the Judge in charge of the List”). The applicant’s legal representatives in any such application shall, before 1 p.m. on the Friday preceding the relevant Monday List, send by email to the Registrar assigned to the Asylum, Immigration and Citizenship List (“the List Registrar”) and to [email protected] a copy of (i) the Statement of Grounds and (ii) the applicant’s written legal submissions in accordance with this Practice Direction in Word document format. Applications as so advertised shall be made available for viewing in the Law Journal on the Monday List. Any application other than in cases where urgent periods or injunctions are requested that do not meet this deadline should be made on the first Monday following the List.
Except in cases of urgency, any motion or application intended to be moved in a proceeding to which this Practice Direction applies shall be returned to the Monday list. Unless the Judge in charge of the List otherwise directs, any interlocutory application or application for leave to which this Practice Direction applies, mentioned to any other judge during a term, shall be returned to the next suitable Monday list for hearing, unless extreme urgency requires that it be heard earlier.
The list of cases listed for hearing in the following five weeks within the Term will be called on the Monday list to confirm that they will proceed and that the requirements of this Practice Direction have been met. It is the duty of all parties’ practitioners to ensure that they attend this positive roll call with sufficient instructions to ensure that the matters listed for hearing are ready to proceed and to specifically inform the court if any such requirements have not been met or if it is likely that the case will need to be transferred to the Retention List.
At 10.00 am the List Registrar will call the Monday list in the following order:

Items in the List of Instructions
Any applications for consent orders in matters on the Settlement List;
Calling the auditions for the next five weeks.

Parties who have matters listed on the Directions List or to be heard within the next five weeks must attend a roll call of the List Registrar. The List Registrar may give directions including directions as to the filing and service of opposition papers or as to the continuation of orders made at the permission stage in accordance with directions laid down from time to time by the Judge in charge of the List. When opposition papers have been served the proceedings shall be transferred to the Judge's List at 11.00 a.m.
Any case in the settlement list may, as soon as it is settled, be mentioned in the Registrar's list on the next convenient Monday for the purpose of enabling a consent order to be made in accordance with sub-section (7) and in accordance with such directions as may from time to time be laid down by the Judge in charge of the List.
Any orders necessary for any purpose arising from the Registrar's list made in accordance with these directions shall be made in the name of the Judge in charge of the List (or the judge who receives the list at 11 o'clock on the date in question, if different). Any subsequent application in respect of any such orders may be made to the Judge in charge of the List.
Any matters requiring the Judge's attention will be moved to the Judge's Monday list at 11.00 a.m.
Unless otherwise ordered, the order in which items will be taken up on the Monday of Judgment list is as follows:

Calling the hearing dates for the next five weeks;
Items listed in the Early Warning List;
Matters listed for citation (including directions);
Ex parte applications;
Topics to listen to,

3. Parties

The Minister for Justice will be named as a respondent in any proceedings to which this Practice Direction applies.
The International Protection Appeals Tribunal shall be named as a respondent in any proceedings challenging a decision or recommendation of an international protection officer (including the principal international protection officer) from which an appeal to the tribunal has been made, where such right of appeal has been or is intended to be exercised.

4. Pleadings in general

Applicants' attention is drawn to the following:

Order 84, rule 20(3), which provides that it is not sufficient for an applicant to state in general terms the grounds involved in any relief or interim relief application, but the applicant should state each such ground precisely, giving details where appropriate, and shall identify in respect of each ground the facts or matters relied on in support of that ground,
the judgment of the Supreme Court in Babington v. Minister for Justice, Equality and Law Reform & Others [2012] IESC 65 relating to compliance with that requirement, and
the requirement that the relief sought must specify the nature of the decision being challenged, for example “the decision of the Minister of … (date) to (specify the decision e.g. to refuse the applicant a residence card)”.

Where proceedings are brought in breach of these requirements, practitioners should be aware that the court may refuse to grant relief sought on generic or unspecified grounds and/or may impose costs consequences.
Practitioners are reminded of the following:

Pleadings which seek an excessive number of reliefs and/or involve an excessive number of grounds may be considered to be in breach of the duty to avoid wasting the court's time and may have cost implications. Accordingly, statements of grounds should not seek declaratory relief which is merely repetitive of the primary relief sought.
Practitioners should be mindful of the principle that duplicative relief is not normally granted, and therefore, with limited exceptions, that declaratory relief is generally superfluous if substantive relief is granted by way of certiorari or mandamus, and that it is improper if such substantive relief is denied. Declaratory relief should, therefore, normally be sought only where it confers a specific benefit on the applicant that is not covered by any order of certiorari or mandamus sought (for example, where the applicant seeks a declaration of the unconstitutionality of a statute), or where there is a possibility that the court may grant a declaration in lieu of certiorari or mandamus.
However, an applicant may in any case, in addition to substantive relief by way of certiorari or mandamus, seek individual declaratory relief “such declaration(s) of the legal rights and/or legal position of the applicant and/or similarly situated persons as the court may think fit”, or relief accordingly. The precise terms of any such declaration sought may then be addressed by way of legal submissions within the limits of the legal grounds pleaded in the statement of grounds.

The grounds advanced in relation to legal entitlement to the reliefs claimed should not be confused with a statement of the relevant facts which should be confined to a separate, separately numbered section of the Statement of Grounds entitled “Relevant Facts”.
Statements of grounds and statements of opposition must state the names of any counsel who prepared those documents.
Where a minor applicant comes of age during the life of the proceedings, the applicant must promptly apply to the Central Office in accordance with Order 15 rule 16 for a certificate enabling the applicant to proceed in his/her own name, such certificate being included in the pleadings book.

5. Affidavits in general

Every ex parte application by every adult applicant appearing on the pleadings must be supported by an affidavit sworn before the application is offered, or as soon as may be thereafter, unless the Court specifically directs otherwise. Such affidavit must set out all material facts relating to the issue before the court. An application to waive this requirement must be accompanied by an affidavit setting out why such an affidavit cannot be sworn and certifying that the applicant’s solicitors are still under the direction of any such adult applicant.
If not already exhibited in the proceedings, a full copy of the following material (“all relevant material”) must be exhibited in the affidavit forming the basis of any form of ex parte application:

the document initiating the process such as any proposal from a respondent or other public body or office holder to make a decision or any application form or notice of appeal completed by or on behalf of an applicant;
all submissions made by or on behalf of an applicant and any other material submitted, including, if applicable, notes of any interview with the applicant;
the text of any relevant decision;
the document notifying the applicant and/or his/her legal representatives of any such decision;

in respect of all decisions entered into or relating to the proceedings and all prior immigration or protection decisions relating to each applicant.

Every document produced on behalf of an applicant prepared in any language other than Irish or English must be translated into Irish or English by a qualified translator and the document and translation must be produced as an affidavit sworn by that translator.
Practitioners are reminded that a deponent may only swear an affidavit in English or Irish if he or she has sufficient knowledge of that language to fully understand the affidavit and all exhibits thereto. If the applicant does not have such sufficient knowledge, he or she shall, in accordance with Order 40, rule 13A(1), swear the affidavit in a language which he or she understands. In accordance with Order 40, rule 13A(2) and (3) respectively, such affidavit shall be translated into one of the official languages of the State by a duly qualified translator, and an affidavit by the translator shall be filed exhibiting (a) a copy of the foreign language affidavit sworn and (b) the original translation of such affidavit into English or Irish, certified by the translator.

6. Opposition papers in general

The attention of the respondents is drawn to Order 84, rule 22(4), which provides that the statement of opposition and the affidavit of verification shall be filed within three weeks of the service of the originating notice of motion on the respondent. On the first mentioned date, unless the foregoing sub-rule is strictly required or the circumstances of the case otherwise direct, the proceedings shall be adjourned for a period of six weeks, without prejudice, for the lodging of the statement of opposition and (if necessary) affidavit of verification, or for seven weeks if the applicant has failed to serve the paper requirement on the respondent by the Friday of the week in which leave was granted.
An affidavit supporting a statement of objection is not required if it contains only one or more of the following:

crossing out any or all of the matters alleged in the statement of grounds;
a legal pleading arising from facts put forward by an applicant or from documents exhibited by the applicant;
a legal pleading arising from other facts on the court record (such as a time objection arising from the date of filing of the pleadings).

An opposing statement containing an affirmative plea based on evidence not otherwise before the court must be supported by an affidavit.
The attention of respondents is drawn to Order 84, rule 22(5), which provides that it is not sufficient for a respondent in a statement of opposition to deny generally the grounds alleged in the statement forming the basis of the application, but the respondent should state precisely each ground of opposition, giving details where appropriate, identify the facts or matters relied on in support of that ground in respect of each such ground, and deal specifically with each fact or matter relied on in the statement forming the basis of the application which it does not admit of being true.
In giving effect to the foregoing requirement, it is not necessary, however, for a statement of opposition to deny the allegations of fact or law in a statement of grounds alone, issue by issue or paragraph by paragraph, or to declare that the applicant is not entitled to relief or costs, or that the respondent(s) is entitled to costs. It is sufficient for a statement of opposition to contain only the following:

a statement that the allegations of fact and law in the statement of grounds are denied except (if applicable) that specified matters are admitted in the statement of grounds and/or that the applicant is put on strict proof of specified matters, and/or a statement that the relief claimed does not arise from the matters of fact on which the applicant relies; and
a statement of any particular matters of fact or law on which the respondent(s) positively relied, for example that specified facts or circumstances preclude the relief from being granted, that the proceedings are out of time or constitute an impermissible collateral objection to a previously stated decision not to object, or that such relief should be refused because of the applicant's failure to disclose specified facts or matters in obtaining leave, because of a specified alternative remedy, or at the discretion of the court having regard to specified facts and circumstances.

Where, contrary to the foregoing, there is excessive repetition in a statement of opposition or where there is a failure to state precisely the positive matters relied on, the court may, without prejudice to any other action which the court may take, disallow the costs of that statement of opposition.
Where an applicant fails to comply with the requirement to produce all relevant material, the respondent(s) may furnish a copy of any such material not so produced to the applicant's solicitors, who shall deliver a further affidavit within seven days of the production of such material, producing such material. If the applicant's solicitors fail to do so, the applicant and/or his/her solicitor may be ordered to pay the costs of any subsequent affidavit on behalf of the respondent(s) required to produce such material as the court may direct.

7. Ex parte applications

In order to give effect to the duty of probity to the court on all legal representatives, every ex parte application to which this Practice Direction applies shall be accompanied by a written legal submission on behalf of the Applicant.
The inclusion of any matter (such as a prior civil or criminal proceeding) in a submission shall not prejudice an applicant's entitlement to argue that such matter legally disclosed is not relevant to the granting or refusal of relief and, except where the applicant states otherwise, the inclusion of any particular matter in a written submission shall not constitute such a concession by the applicant.
The applicant's written legal submission will contain the following sections:

List of legal questions/issues

Any legal question or issue that the court is required to decide shall be stated concisely in a numbered list on the first page and presented in the form of an issue paper set forth in this section.

Statement of relevant facts
This shall set out in chronological order the facts most relevant to the legal issues and all facts necessary to enable the court to understand the full background, particularly the applicant's immigration history. The main facts established shall be accompanied by a reference to the page number(s) in the papers in which the exhibit is exhibited. Where a fact is disputed, this shall be stated. This shall be in the body of the submission and not in an annex. This section shall include:

Full details of all applications for protection or immigration made by each applicant, whether in the State or elsewhere, and the outcomes and dates of each.
Full details of the applicant's entire immigration history since leaving their country of origin (if applicable) and in particular identifying the total period of presence in the State and breaking that period down by reference to the precise dates on which that presence was lawful (identifying the legal basis and whether it was temporary, short-term or long-term), or unlawful as the case may be, and identifying any periods during which the applicant(s) failed to comply with the reporting requirements.
Details of the applicant(s)' current immigration status and the factual basis for that status (e.g., left the State voluntarily, deported, unlawfully present, present with permission and the basis thereof).
If the applicant's current immigration status arises from a marriage or civil partnership or alleged enduring relationship with an Irish or EU citizen, full details of the marriage, civil partnership or relationship and its duration.

Procedural history
This will state in summary form any relevant procedural history including the date of grant of permission, any periods of stay, injunctions or undertakings and any other interlocutory applications or appeals .

This section will include details of the following:

any previous events involving any of the applicant(s) on the Asylum, Immigration and Citizenship List and
any other civil or criminal proceedings, whether in the State or elsewhere involving any of the applicant(s) which may be relevant to any of the issues or their factual background.

In the case of any proceedings required to be cited in this section, particulars of the record numbers, the results, and the full citations and dates of any judgments or decisions given shall be given. Where there are any prior criminal proceedings which may be relevant as aforesaid, the particulars of the appeal shall include any record number of any appeal and shall be accompanied by a reference to the place where a transcript of the proceedings and the sentencing statements of the trial judge, or a report of the proceedings, certified as to their accuracy, may be obtained, filed or otherwise placed before the Court or, failing that, included as an appendix to the submission. This section shall contain an affirmative statement that the only other proceedings which may be relevant to any of the issues or their factual background are set out in the section, or that there are and have been no other such proceedings.

Legal arguments
Legal arguments must be grouped under headings referring to the specific questions or issues in section A of the submissions. Each paragraph shall also refer to the particular ground(s) on which leave has been granted. An outline legal argument supporting the grounds sufficient to permit the respondent to prepare its answer shall be presented. A substantive legal argument not stated in the written legal submissions shall not be permitted at the trial of the action without special leave of the court.
Any other matter that needs to be disclosed

The following will apply to this part of the submission:

This section must draw the court’s specific attention to any significant matter of fact which is prejudicial to the applicant’s case for relief. It is not sufficient to state such prejudicial matters merely as an affidavit or exhibit, and such matters must be specifically highlighted in the submission to the court under this section. The submission shall also disclose all relevant authorities of the Superior Courts, the Court of Justice of the European Union or the European Court of Human Rights and all relevant statutory provisions or secondary or European legislation, and in particular all such authorities which are prejudicial to the application being made.
In the case of adverse matters disclosed, the submission shall explain why such matters of fact or law may be contrary to the applicant's submission on the specific facts of the case (such matters shall be specified with the facts and shall not be set out in a generic manner). It shall explain the applicant's argument as to why such adverse matters should not affect the applicant and shall explain how it is proposed to distinguish or overcome any adverse authority.

The submission referred to in this paragraph shall be signed by the legal representatives responsible for determining its content. Such legal representatives have a personal professional obligation of diligence to take all appropriate steps to ensure that they are aware of all relevant authorities and statutory provisions or secondary or European legislation so as not to mislead the court.
The submission referred to in this paragraph shall be served on the other parties to the proceedings within the time period specified in the permission order if permission is granted and within seven days if permission is refused.
Where any type of ex parte application is made to the court, the following will apply:

that application must be verified by an affidavit that meets the requirements of paragraph 5(2) to disclose all relevant material;
Accordingly, the applicant's solicitor personally has a professional obligation to take all appropriate steps to ensure that he or she has the fullest possible information before drafting the application, and in particular all the documents and facts relevant to the legal issues and all the facts necessary for the court to understand the full background, in particular as regards the applicant's immigration history. This duty of inquiry is to ensure that the applicant's legal representatives can give the Court the most accurate possible version of the proceedings and so that the Judge is not thereby misled.
If the applicant's solicitor is unable to obtain full instructions, he or she, and any counsel instructed in the matter, shall have a duty of candour to ensure that the Court is fully informed of the extent of the evidence then before the Court. This is necessary so that the Court can make a measured assessment of the probative value of the evidence. The applicant's solicitor is personally required to set out in detail on affidavit why no efforts were made, or why insufficient efforts were made or failed to be made, to seek and obtain the information referred to in subparagraph (b), when precisely instructions were received and when and of what nature efforts were made.

Practitioners are reminded that the duties of diligence, inquiry and integrity are professional duties and not merely procedural requirements and therefore apply to any type of ex parte application including an application under Article 40.4 of the Constitution.
Any ex parte application shall, in addition to being based on an affidavit from each adult applicant pursuant to paragraph 5(1), be based on the following in respect of each such applicant:

Every adult applicant shall swear an affirmation to be included in the foundation affidavit or a separate affidavit (referred to as “verified affirmation”) in which every such applicant shall swear as follows:

in the case of every statement or representation made by the applicant or any other member of the applicant's family or on behalf of the applicant or any other member of the applicant's family, including any solicitor for the applicant or any member of the applicant's family, to any immigration or protection body, whether in the State or elsewhere, including but not limited to the Department or the Minister for Justice, an international protection officer (including the chief international protection officer) and the International Protection Appeals Tribunal, or any of their predecessor entities, that such statements or representations are disclosed in the founding affidavit and are published with that affidavit, or if not so disclosed, stating to the extent that it has not been so disclosed, the subject matter of the statement or representation which has not been so disclosed to the knowledge of the applicant and the steps taken to obtain and place before the court a copy of such statement or representation;
in the case of all statements or representations made by the applicant or any other member of the applicant's family or on behalf of the applicant or any other member of the applicant's family, including any solicitor for the applicant or any member of the applicant's family, to any immigration or protection body, whether in the State or elsewhere, including but not limited to the Department or the Minister for Justice and Equality, an international protection officer (including the chief international protection officer) and the International Protection Appeals Tribunal, or any of their predecessor entities, that they are true in all respects, or if they are not true, stating the extent to which any such statements or representations are false;
in the case of every statement in the Statement of Grounds (in the case of an application for leave) and every statement made by the applicant or any other member of the applicant's family or on behalf of the applicant or any member of the applicant's family, including any solicitor for the applicant or on behalf of any member of the applicant's family, in any affidavit in the proceedings or in any document exhibited to it, that they are true in all respects, or if they are not true, stating the extent to which any such statements or representations are false;
the applicant is aware that it is an offence of perjury to make a statement in the founding affidavit or (as the case may be) in the separate affidavit containing the verified statements which are false or misleading in any material respect which he or she knows to be false or misleading.
identifying the applicant's religion (or if it is established that he or she has no such religion or that the oath is contrary to that religion) and certifying that the oath was taken in the manner specified in the founding affidavit, and (if applicable) the separate affidavit in which the affirmations are verified, in a manner which identifies that religion (in particular, on the Tanakh (Hebrew Bible) where the religion is Judaism, the New Testament in the case of Christianity, or the Qur'an in the case of Islam, and similarly in respect of other religions, giving details in each case of the precise manner used).
that the content and implications of the verification certificates, each statement in the statement of grounds (in the case of an application for leave), and the particulars of all previous claims and representations made by or on behalf of the applicant or any member of his/her family, or by any solicitor on behalf of any of them, have been fully explained to the applicant by his/her solicitor, and that the applicant fully understands them; and
specifying the language(s) the applicant understands and confirming that the applicant fully understands the affidavit and the exhibits accompanying it in the language in which it is sworn; and

A separate affidavit, sworn after each affidavit containing the verified certificates has been sworn, by a practising solicitor (and not by a servant or agent of such solicitor) acting on behalf of each such applicant, in which the deponent shall swear as follows:

that, to the best of the solicitor's knowledge, as he/she has been advised and as he/she believes, all papers required to be exhibited under this Practice Direction are being so exhibited, and in particular, in the case of all statements or representations made by or on behalf of the applicant or any other member of his/her family, including any solicitor on behalf of the applicant or any member of the applicant's family, to any immigration or protection body, whether in the State or elsewhere, including but not limited to the Department or the Minister for Justice, an international body of protection officers (including the chief international protection officer) and the International Protection Appeals Tribunal, or any of their predecessor entities, they are disclosed in the founding affidavit and exhibited to it, or if not so disclosed, stating to the extent that it has not been disclosed, the subject matter of the statement or representation which has not been so disclosed to the best of the deponent's knowledge and the measures made to obtain and place before the court a copy of that statement or representation;
that the content and implications of the verified certificates, each statement in the statement of grounds (in the case of an application for leave), and the particulars of all previous claims and representations made by the applicant or a member of his/her family, or on their behalf, including any solicitor on behalf of any of them, have been fully explained to the applicant by the deponent, and that the applicant fully understands the same, to the best of the deponent's knowledge, as informed to him/her and as he/she believes, specifying in particular the language(s) which the applicant understands, to the best of the deponent's knowledge, as informed to him/her and as he/she believes; and
that the deponent has certified that the applicant is aware that it is an offence of perjury to make a statement in this affidavit which is false or misleading in any material respect which he or she knows to be false or misleading.
identifying, to the best of the deponent's knowledge, belief and belief, the religion of the applicant (or, if the case may be, certifying that he or she has no such religion or that the oath is contrary to that religion) and certifying that the oath was taken in the manner specified in the founding affidavit and the affidavit in which the affirmations were made, in a manner which recognises that religion (in particular, on the Tanakh (Hebrew Bible) in the case of Judaism, the New Testament in the case of Christianity, or the Qur'an in the case of Islam, and similarly in the case of other religions, giving details in each case of the precise manner used) in the personal presence of the deponent.

If, after the swearing of the verification certificates and the attorney's affidavit, further declarations, claims or representations are sworn to or exhibited on behalf of the applicant, or further declarations, claims or representations, made by or on behalf of the applicant, are attested to in an affidavit on behalf of the respondent or respondents, the applicant shall be required to swear and file a further verification affidavit together with another attorney's affidavit in respect of any such matter, and so on from time to time in respect of any such new matter brought before the court.
Every adult applicant ordinarily resident in the State is required to attend in person on the date appointed for the hearing of the substantive application unless he/she is previously excused by the court or with the consent of the respondent(s), and may be required to declare the verified affidavits orally on his/her behalf (subject to the Oaths Act 1888). Every such applicant is required to arrange for a translation if necessary and, unless otherwise directed, the costs of the translation shall be the costs of the case.
To demonstrate compliance with this Practice Direction, parties may be required to complete and submit to the court in advance such checklists of the requirements set out in this Practice Direction as may be prepared from time to time by the Judge in charge of the List.

8. Order granting leave and service of proceedings

Where an order granting permission is made –

if the statement of grounds is amended at the permission stage, or if, because an urgent stay was sought, the statement of grounds was not previously emailed to the List Registrar, or if a registrar other than the List Registrar is sitting when permission is granted, the applicant or the applicant's solicitor shall email the statement of grounds (in its original form and, if an amendment is granted at the permission stage, in amended form) in MS Word format (not pdf) to the List Registrar and, if different, to the registrar sitting with the court making the order granting permission, by the close of business of the next court day;
unless the Court otherwise orders, the default terms of the order shall include provision for the following:
1. the applicant shall issue and serve the originating notice of motion within seven days after the order granting permission was made (in the absence of any interlocutory injunction granted on the granting of permission and the applicant's costs for permission shall not be recoverable);
2. the applicant shall serve on the respondent(s) a copy of the statement of grounds, all affidavits and exhibits before the court at the permission stage and the applicant's written legal submissions, by the close of business on the Friday of the week in which permission was granted (or such longer period as may be specified in the order), and in default of such service the applicant's costs for permission shall not be recoverable;
3. the originating notice of motion shall be returnable by the third Monday in the Term after the leave is granted; and
4. the costs of the application shall be reserved provided that the conditions of paragraphs (i) and (ii) of this subparagraph are met.

It should also be noted that where an objection to a decision under the Dublin system is included in relief in respect of which leave is granted, the court has directed, by universal order, that the filing of any such application operates as a stay of the decision intended to be objected to, until the final determination of the proceedings on that application, including substantive proceedings if leave is granted and any appeal thereagainst, unless the court subsequently directs otherwise.
Practitioners should note that any document formally served in any proceedings against a respondent in respect of whom the Chief State Solicitor has authority to act (for example, Ireland and the Attorney General, a Minister of the Government, the Commissioner of the Garda Síochána and members of the Garda Síochána, a governor of a prison or place of detention, the International Protection Appeals Tribunal, or an international protection officer (including the chief international protection officer)) should be served on the Chief State Solicitor and not directly on that respondent. In all cases, service must be made strictly in accordance with the rules of court, and in no circumstances will it be sufficient service in court to give papers to solicitors employed in the Office of the Chief State Solicitor or be deemed to be good service, and in any case where such transfer occurs, formal service will be made thereafter in accordance with the rules.
The applicant shall file the affidavit required by Order 84, rule 22(6) of the Rules of the Superior Courts establishing service on each respondent (and, as the case may be, on the Attorney General or the Irish Human Rights and Equality Commission where service is ordered, the applicant shall serve notice of the application for leave under Order 84 rule 24 or where notice is required to be served on him under Order 60A) four clear days before the first return date for the notice of motion after leave is granted, unless the court otherwise directs. Such affidavit shall also expressly state whether or not the conditions as to service in the order granting leave have been complied with.

9. Interim, interlocutory or procedural applications

Where a party proposes to make an interim, interlocutory or procedural application on the Asylum, Immigration and Citizenship List (including but not limited to an application to amend pleadings, for extension of time, for interlocutory injunction or injunctive relief, for leave to appeal or for costs), the following shall apply:

the party making such an application is not required to seek such relief in the Statement of Grounds (which should be limited to the relief to be sought at the substantive hearing) or, in the case of applications by respondents, in the Statement of Opposition.
It will not be necessary to serve a formal notice of motion when making such an application; except in relation to discovery where a notice of motion is required, or where the court in a particular case orders a motion to be given.
Save as otherwise provided in this Practice Direction or as directed by the court, it shall not be necessary to deliver written submissions in relation to interim, interlocutory or procedural applications, other than applications for leave to seek judicial review and applications for leave to appeal, but any party to any other matter may apply to the court for directions in that regard.
Such an application need not be based on a separate affidavit where the factual matters relied on have already been verified in the Founding Affidavit or otherwise, or where the application relies on a legal submission rather than a factual dispute.
Except in relation to any matter specifically dealt with in another provision of this Practice Direction, an interlocutory application on the Monday List shall be made by giving notice by correspondence to the other party(ies) equivalent to that which would be required in the case of a formal notice of motion.

Given that the execution of deportation orders, transfer orders, transfer of person orders, exclusion orders and similar instruments is a matter for the Garda Commissioner, where the court grants a stay or injunction restraining the execution of any such instrument, it shall be the sole responsibility of the applicant to notify the Garda Commissioner of any such stay or injunction in such manner as the court may direct (for example by telephone), and such notice must be given directly to the Garda Commissioner and copied for information to the Chief State Solicitor.
The requirement in paragraph (2) does not exempt the applicant from the obligation to serve formal service of proceedings, including the formal order when it is executed, on the Chief State Solicitor.

10. Amendment of pleadings or orders

Any pleading amended, in accordance with Order 28, rule 9, Rules of the Superior Courts, shall be marked with the date of the order by which it is amended, and the day on which such amendment is made, as follows:

“Amended on the …… day of …… by order of His Excellency Justice …… dated the …… day of ….…”
Where it is proposed to apply for leave to amend a statement of grounds or statement of opposition, the applicant or (as the case may be) the respondent must prepare and furnish to the court and the other party or parties a draft of the statement containing, duly marked, the proposed amendments, before any such application is made. Similarly, where a party wishes to seek an amendment to a direction from the court under the rule of mistakes or otherwise, a copy of the draft order as amended must be furnished in writing in advance.

11. Sub-lists within the Asylum List

The Asylum List is broken down into the following sub-lists:

a holding list, for cases that cannot be heard immediately because they are awaiting the outcome of a main case,
Settlement List, for cases that are under active settlement,
the List to Set Dates,
the List of Instructions, which is called every Monday.
the Early Warning List.

Where a particular live event is not listed in any of these lists and is not actively within a particular judge's session, parties must immediately bring the case to the attention of the Judge in charge of the List so that it can be returned to the appropriate list.

12. The Retention List

When a case is transferred to the Retention List to await the outcome of other proceedings (the “main case”):

the legal representatives of both parties are obliged to notify the court as soon as possible after any judgment is given in the main case, and
where the case is settled, or where the case is settled except as to costs, or for any other good and sufficient reason, a party may at any time mention the case on notice with a view to removing the case from the Retention List.

Where a final judgment is given in the main case against the respondent(s), the following arrangements shall apply unless the court orders otherwise:

the matter shall be permanently listed for the first Monday of a Term which is six weeks after the delivery of the judgment; and prior to such listing the respondent(s) shall issue proposals to any applicants in relevant cases on the Retention List or shall file and serve opposition papers in any cases in which it is intended to defend the proceedings notwithstanding such judgment;
if the number of relevant cases intended to be defended exceeds 20, only opposition papers for the first 20 such proceedings by record number need be delivered in the six-week period referred to in paragraph (a) of this subparagraph, the respondent(s) shall have an additional week to deliver oppositions in the subsequent 10 cases by the highest record number, and so on; and
dates will then be assigned or the case(s) will be moved to the Dates to Be Set List.

Where a final judgment is given in the main case in favour of the respondent(s), the following arrangements shall apply unless the court orders otherwise:

the matter will be permanently listed for the first Monday in term, that is, eight weeks after the judgment and prior to such listing the respondent(s) will have one week to request the applicant(s) to indicate whether each case is still being pursued in light of the judgment;
the applicant(s) will have one week to provide a substantive response and make proposals in this regard; and in the case of any matter being pursued;
the respondent(s) shall have six weeks to file and serve opposition papers in any cases being prosecuted notwithstanding such judgment; if the number of relevant cases proposed to be pursued exceeds 20, opposition papers for only the first 20 such cases by record number need be delivered by the end of the said eight-week period, and the respondent(s) shall have an additional week to deliver opposition papers in the remaining 10 cases by record number, and so on; and
dates will then be assigned or the case(s) will be moved to the Dates to Be Set List.

If a party fails to take the steps required by this paragraph, the other party shall, within two weeks, irrevocably mention the matter to the Judge in charge of the List for appropriate directions and may apply for the costs of doing so.
No matter may be placed on the Retention List unless the List Registrar or Judge, as the case may be, is informed of the details of the main case pending, so that those details can be recorded on behalf of the Chief Registrar.

13. The List to Set Dates

Applications for a case to be transferred to the List to Fix Dates must be made to the Judge in charge of the List.
If a party considers that the case will require hearing time in excess of that specified in this Guide, the party must so inform the Judge in Charge of the List at the time the case is placed on the List for Fixing Dates.
Practitioners are asked to note that, given the possibility of custody or other urgent cases joining the list without notice, assigned hearing dates are subject to change should a date for a custody or urgent case be required.

14. Written legal submissions in general

In the context of written legal submissions, the terms of section 5.19 of the Irish Bar Code of Conduct are recalled:

“In a civil case, counsel must inform the court, at the appropriate time in the proceedings, of any relevant decision on a point of law and, in particular, of any binding authority or applicable legislation of which they are aware and which they believe to be relevant whether for or against their position.”

The following shall apply to the preparation of written submissions unless otherwise directed:

The applicant shall, within two weeks of the proceedings being transferred to the List for Fixing Dates, send his/her legal submissions to the respondent(s) and send them by email in Word document format (not pdf) to [email protected] to the Court.
Within two weeks of the applicant's legal submissions being served on the respondent(s), the respondent(s) shall serve the applicant and send the respondent(s)'s legal submissions by email in Word document format (not pdf) to [email protected] for the Court's consideration.

It shall be presumed that no order for costs made in proceedings shall include the costs of a submission delivered in breach of any deadline fixed by a Practice Direction or by order of the court, unless the court expressly so directs when allowing costs.
The sections will be in the applicant's written legal submissions and will follow the format set out above for submissions on permission.
Except as otherwise specifically directed, the respondent shall not be required to deliver submissions until it has received the applicant's submissions. The respondent's written legal submissions shall contain the following sections:

Additional/Alternative List of Legal Questions/Issues
a list of additional or alternative legal questions or issues to those presented by the applicant that the respondent considers necessary.
Additional/Alternative Statement of Relevant Facts
An additional or alternative statement of facts shall be set out in chronological order setting out the necessary amendments to the applicant's statement of facts. This shall be in the body of the submission and not in an annex.
Additional/Alternative Statement of Procedural History
An additional or alternative statement of procedural history shall be set out in chronological order setting out the necessary amendments to the applicant's statement of procedural history.
Legal arguments
The respondent's legal arguments will be in response to the headings and sequence of the applicant's arguments and will follow them, as far as possible.

All legal submissions will be signed by the barrister who arranged those submissions.
References to written legal submissions in relation to case law and statute law must be hyperlinked to a publicly accessible version where possible e.g. www.irishstatutebook.ie , www.courts.ie, www.bailii.org
The subject line of each email to [email protected] must follow the following format: case title, record number (in the form year (space) number (space) AB (or other appropriate code)), date and nature of hearing (if already set), party on whose behalf the submissions are being lodged and nature of document being lodged; for example “Smith v. IPAT 2018 1001 AB - For substantive hearing 1 December 2018 - applicant’s written legal submissions”.

15. Filing of papers for substantive hearings

Each paper filed before the Judge in charge of the List shall be accompanied by a covering letter setting out the reason for which the papers are being filed ( e.g. , for the purpose of a substantive hearing pending on a named date).
The applicant's solicitor shall lodge in the Central Office for the Registrar a List:

a full set of pleadings;
a hard copy of each party's written legal submissions, individually stapled, separate from the pleadings book and not bound within it; and
bound book of agreed authorities

no later than 12 noon on the Thursday of the week preceding the week in which the case is listed for substantive hearing. This requirement does not apply to interim, interlocutory or procedural applications on the Monday list.

Before lodging pleadings or authority books with the Court, each party must deliver to the other party in advance a complete numbered copy of any pleadings or authority book which it intends to lodge or give to the court.
Books and papers for use by the Court should be presented and arranged as follows:

All pleadings and/or exhibit books should be bound and fully numbered;
Each book should identify on its cover the party depositing it;
Each book should have a contents page and, where possible, should have a document number corresponding to the document number in the index. Each exhibit should be identified on the contents page by reference to the exhibit number, the page number on which it is found and a description of the item (e.g., “Exhibit AB1, Order of removal dated (date)” rather than “Exhibit AB1”;
No single volume of paper shall exceed 150 pages; for papers exceeding this length, multiple volumes should be used;
The parties shall deliver copies of the legal authorities/case law referred to in the written legal submissions in bound books (not exceeding 150 pages in a single volume), tabulated by reference to a table of contents in the form of an agreed book of authorities.

Parties should note that, in accordance with section 65(3) of the Courts and Court Officers Act, 1926, the court may retain any papers delivered to the court and they will normally be disposed of confidentially after the conclusion of proceedings. Therefore, original documents should not normally be produced to the court as any documents submitted cannot be returned.

16. Time limits on oral submissions at hearings

Unless the Court orders otherwise, the following time limits shall apply to hearings:

at any hearing on any interlocutory or procedural application, including leave to appeal or on costs: 10 minutes per party (the applicant may reserve part of his/her time, to be specified at the outset, for a response);
at any substantive hearing: 30 minutes per party (the applicant may reserve part of his/her time, to be specified at the beginning, for a response).

17. General obligations of practitioners

Practitioners are reminded of the following:

a solicitor has an obligation to be and remain in effective contact with his or her client, and in the event that he or she ceases to be in contact with him or her, a solicitor must apply to the Court to be struck off the record promptly;
it is the duty of practitioners to personally check whether or not any amendments have been made to any statute cited and to ensure that these are brought to the Court's attention;
where practitioners become aware of an error in a judgment or order (whether a judgment is granted or disallowed) which would fall within the rule of mistakes, they are obliged to bring the matter before the Court forthwith; this should be done -

where uncontroversial corrections to an order are sought, by email to the registrar and copied to the other side,
where uncontroversial corrections to a judgment are sought, by email to the judge's judicial assistant with copying to the other side
and
in any other case by bringing the matter before the Court in open court as soon as possible;

If practitioners (whether barristers or solicitors) wish to be added to the email circulation list for general notices maintained by the List Registrar, it is their responsibility to inform the Registrar of their up-to-date email address.

18. Referral of papers where potential illegality has been revealed

Where a judge dealing with proceedings to which this Practice Direction applies, or with any other High Court proceedings, is of the opinion that the papers give grounds for suspecting that any marriage entered into by a non-Irish national is a marriage of convenience, that is to say, that it may have been entered into primarily for immigration purposes, or that any immigration offence has been committed, or that any deponent or witness in proceedings to which this Practice Direction applies has lodged material or given evidence which is deliberately false or misleading, the judge may, without prejudice to any other power to do so, direct the other party, or the Chief Registrar, to refer the papers in the proceedings and any judgment of the court to An Garda Síochána.

19. Permission to appeal

Applications for leave to appeal pursuant to section 5(6) of the Illegal Immigrants (Trafficking) Act, 2000, (as amended by section 34 of the Employment Permits (Amendment) Act, 2014) shall be made on the Monday list on notice to the respondent within 28 days of the oral notification of the decision to which it relates and shall be supported by written legal submissions setting out the precise text of the proposed point(s) of law of exceptional public importance arising and explaining how the application meets the criteria for the grant of leave to appeal. Such submissions shall be served on the respondent at least seven days before the date on which it is proposed to seek such leave to appeal, and the respondent may respond to such submissions within that seven-day period.

20. Non-compliance with this Practice Direction

In cases of failure to comply with this Practice Direction, the court may make such order as it thinks fit including any order as to costs against a defaulting party, and/or an order as to costs against a defaulting solicitor under Order 99, rule 6, and/or an order disallowing costs as between a solicitor and his/her client under Order 99, rule 7, and/or an order disallowing costs of an otherwise successful party as against the other party.

21. Commencement

This Practice Guide will come into effect on January 1, 2019.
Subject to subparagraph (3), this Practice Direction applies to proceedings whether commenced before or after the date referred to in subparagraph (1).
Where leave was granted in any proceedings prior to January 1, 2019, the applicant(s) shall deliver the affidavits referred to in paragraph 7(8) on or before Friday, January 18, 2019.

22. Previous Practice Directions

Practice Direction No. AC68 of 22 September 2016, except for paragraphs 3(d), 4 and 6 thereof, shall, subject to this Practice Direction, continue to apply.
Practice Direction No. AC78 of May 11, 2018 is revoked upon the coming into force of this Practice Direction.

Peter Kelly
President of the High Court
Dated this 17th day of December 2018.

View the full text Word version of this practice guide (dated 17 December 2018) here: HC81 Asylum, immigration and citizenship list See explanatory note accompanying this practice guide - Explanatory Note

High Court

High Court

Asylum, immigration and citizenship list

HC81

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