High Court of Ireland Decisions

THE HIGH COURT

JUDICIAL REVIEW

[2025] IEHC 154

Record No. 2025 264 JR

 

BETWEEN

G.T.

APPLICANT

AND

 

MINISTER FOR JUSTICE AND THE COMMISSIONER OF AN GARDA SIOCHÁNA

 

RESPONDENTS

AND

 

THE INTERNATIONAL PROTECTION APPEALS TRIBUNAL

 

NOTICE PARTY

 

JUDGMENT (No. 2) (Injunction) of Ms. Justice Siobhán Phelan, delivered on the 14^th day of March, 2025.

 

INTRODUCTION

 

1.                The matter comes before me on an application for an injunction pending a determination of an appeal under s. 22(8) of the International Protection Act, 2015 (as amended) (hereinafter "the 2015 Act") in the case of a Georgian national who is a failed international protection seeker and who seeks the consent of the Minister to make a subsequent application for protection.  The key question for me on this application is whether and in what circumstances the existence of a pending appeal under s. 22(8) of the 2015 Act may ground the grant of an injunction, as substantive relief, restraining deportation in proceedings where no challenge is maintained to the validity of the deportation order, the enforcement of which it is sought to restrain. 

 

BACKGROUND

 

2.                The Applicant first claimed protection in the State on the 14^th of November, 2022.  A preliminary interview was carried out under s. 13(2) of the 2015 Act on that date.  The record of this interview exhibited in grounding these proceedings is signed by an authorised officer but not by the Applicant and not by an interpreter.  Thus, while the authorised officer signs to confirm witnessing the Applicant's signature in the section confirming receipt of information leaflets including a Free Legal Aid Information Leaflet, somewhat curiously the Applicant's signature does not appear on the copy exhibited to ground the relief claimed in these proceedings.  This anomaly has not been addressed in Opposition papers subsequently filed.

 

3.                In a questionnaire completed in English on the 14^th of November, 2022, by the Applicant himself, the Applicant claimed protection due to his stated fears arising, inter alia, from his opposition political opinion, being a member/supporter of the Girchi party and threats from a named criminal in Georgia.  He also claimed to have lost his passport.

 

4.                A personal interview was conducted with the Applicant on the 29^th of November, 2022, during which he was assisted by a Georgian language interpreter.  He was asked questions about Girchi during interview and was unable to confirm when the party was established, identify more than one founding member, describe the party's symbol, identify the previous political party of the party founder he had named nor provide details of a major rally held by Girchi claiming a state of emergency during 2020.  When pressed about his lack of knowledge he said (Q. 46) "I don't have a deep understanding of their politics." The Applicant further confirmed that he did not report concerns to police because there was "no point".

 

5.                The Applicant was issued with a first instance refusal of his application by the International Protection Office (hereinafter "the IPO") by way of letter dated the 13^th of February, 2023.  This first instance refusal was accompanied by a s. 39 Report dated the 2^nd of February, 2023, in which his claim was given detailed consideration on behalf of the Minister.

 

6.                It is clear from the s.39 report that the credibility of the Applicant's claim was not accepted by the IPO, specifically his asserted involvement with the Girchi party.  This was because he showed a lack of knowledge of the political party he claimed to belong to and a lack of knowledge of a significant nationwide protest organised by this party.  Furthermore, the threats he claimed to face as a member of Girchi were not in terms of physical harm, as he described them, but rather of not being able to get work, a claim which itself was not accepted by the IPO to be credible and was found to run contrary to available COI.  Similarly, his claims to fear threats from a named criminal were found to be lacking in specificity and credibility.

 

7.                Thereafter, the Applicant appealed to the IPAT, or at least so he instructs his current solicitors, with the assistance of a person who claimed to be a "consultant".  On the face of the notice of appeal itself, however, the Applicant confirmed that he did not have a legal representative and he signed the appeal himself.  The notice of appeal dated the 21^st of February, 2023, submitted grounds of appeal which the Applicant maintains in these proceedings included claims related to the Orthodox Church and COVID vaccination policies in Georgia as distinct from the reasons previously given for fearing return to Georgia. 

 

8.                Although the Notice of Appeal is sparse in its terms it is clear from the face of the notice that the Applicant continued to rely on his membership of Girchi and he references a letter confirming membership in the notice.  I note that no reference to Covid policies appears on the face of the said notice of appeal and only passing reference to religion is made without specifically referring to the Orthodox Church at all. 

 

9.                Submissions which accompanied the Notice of Appeal have been exhibited in the Opposition papers filed in these proceedings and it appears that several additional documents were submitted as signed by the Applicant himself in support of his appeal before the IPAT.  In these submissions he continued to rely on political unrest in Georgia referring to the position of other minority groups in Georgia (of which he has not claimed to be a member) as well as issues of religious persecution, referring to anti-vaccine attitudes which were reported as strong in Georgia, influenced by the Georgian Orthodox Church and interference with his religious freedoms in Georgia.

 

10.            The application was refused by IPAT in or about March, 2023, following an accelerated appeal procedure and in the absence of an oral hearing by reason of the safe country of origin finding contained in the s. 39 report.  The IPAT decision was not available to the Applicant's new solicitors in issuing these proceedings but is now in evidence before me. 

 

11.            In its decision the IPAT addressed the fact that the Applicant was not legally represented, referring to the "very professional submissions" which accompanied his appeal.  It was noted in the decision that when acknowledging his appeal on the 24^th of February, 2023, he had been provided with a Legal Aid Board Notice.  It was further noted that on the 16^th of March, 2023, the Tribunal raised a s.44 query seeking copies of the documentation provided to IPO, and on the 20^th of March, 2023, the Applicant emailed the Tribunal with copies of same.  Having regard to all these factors, the Tribunal was satisfied that the Applicant was well capable of putting forward his own claim and that no issue regarding legal representation arose in this case.

 

12.            Turning then to the substance of his claim, the IPAT rejected the Applicant's claim to be a coordinator or  "informator" for the Girchi political party.  The IPAT found his claim to be vague and found the letter he provided in support to be an unreliable document.  The only aspect of the Applicant's claim which was accepted was his nationality [at para. 5.1 of IPAT decision].  The IPAT found that there were no areas of genuine uncertainly to which the benefit of the doubt might apply [at para. 4.4 of IPAT decision].

 

13.            The Applicant did not bring any challenge to the IPAT's decision dated the 27^th of March, 2023.  Instead, he sought a review of the decision to refuse him leave to remain under s. 49 of the 2015 Act.  By letter dated the 3^rd of April, 2023, he relied on both political and religious challenges in Georgia, submitted additional COI and name two Georgian friends whom he had met in the State and shared "similar experiences of religious persecution in Georgia."  In a further, undated, letter he addressed refoulement concerns under s. 50 of the 2015 Act.

 

14.            The Applicant was advised that his application for leave to remain had been refused and afforded the option of voluntary return to Georgia by letter dated the 11^th of May, 2023.  He was invited to respond within five days notifying an intention to voluntarily return, failing which it was confirmed that the Minister would make a deportation order.  It appears the Applicant made no response to this correspondence.

 

15.            Subsequently, the Applicant was issued with a deportation order dated the 31^st of May, 2023, on behalf of the Minister by letter of notification of the 2^nd of June, 2023.  At the time the deportation order was made it was considered that no refoulement concerns arose and repatriating the Applicant to Georgia was not considered contrary to s. 50 of the 2015 Act.  The reasoning underpinning this conclusion was provided to the Applicant.  In the letter of the 31^st of May, 2023, the Applicant was advised that following the refusal of a refugee declaration, a subsidiary protection declaration and permission to remain in the State under ss. 47 and 49(4) of the 2015 Act, the Minister had made a deportation order and he was obliged to leave the State by the 2^nd of July, 2023.  He was advised that if he did not leave the State, he was liable to be deported and he was requested to present himself at the GNIB on the 5^th of July, 2023 to make arrangements for his removal. 

 

16.            Following receipt of the Deportation Order, the Applicant appears to have consulted solicitors.  No challenge was brought to the Deportation Order but instead legal representatives made representations on the Applicant's behalf to the Minister seeking to have the Order revoked pursuant to s. 3(11) of the Immigration Act, 1999 (hereinafter "the 1999 Act") by letter dated the 28^th of June, 2023.  Of note, no reference was made in these submissions to any procedural irregularity in the process insofar as s. 18 of the 2015 Act is concerned and no reference was made to the Applicant being misled in the terms of the appeal submitted by a person claiming to be a "consultant" both points which the Applicant now seeks to agitate as a basis for a subsequent protection application being accepted and enforcement of the extant deportation order restrained.  The submission made by solicitors on the Applicant's behalf in support of his s. 3(11) application was accompanied by character references attesting to the Applicant's qualities.  The focus of the submission was on the connections the Applicant had made in the State.  No question of risk arising from a return to Georgia was identified in the said submissions.  No decision has been communicated on this application.

 

17.            Between July, 2023 and January, 2025, it appears that the Applicant periodically presented with GNIB in accordance with their directions for the purpose of facilitating his deportation from the State.  There is no record of the Applicant failing to present as required by the GNIB before me and he seems to have complied with GNIB requirements to present at their offices from time to time (see GNIB presentation letters issued to the Applicant dated 5^th of July, 2023; 7^th of September, 2023; 12^th of October 2023; 14^th of December, 2023; 18^th of April, 2024, and 1^st of October, 2024).  At no point during this period was any follow up correspondence written by or on behalf of the Applicant to advise of any concerns he had in relation to a worsening situation in Georgia or to request consent to a subsequent application under s. 22 of the 2015 Act.

 

18.            Notwithstanding his good presentation record, the Applicant was arrested and detained for the purpose of giving effect to his deportation on the 28^th of January, 2025.  Following his arrest, he instructed his current legal representatives on or about the 31^st of January, 2025. 

 

19.            The Applicant has been detained in custody since the 31^st of January, 2025, pursuant to s. 5 of the Immigration Act, 1999 (as inserted by s. 78 of the International Protection Act, 2015 Act) pending his removal from the State on foot of a deportation order made on the 31^st of May, 2023.

 

20.            On the 12^th of February, 2025 (resubmitted on the 17^th of February, 2025 due to issues with its receipt by the Minister), the Applicant made an application pursuant to s. 22 of the 2015 Act seeking consent of the Minister to be readmitted to the international protection process based on developments since his application was first determined.  This application was made on the Applicant's behalf without his new legal representatives having sight of the decision of IPAT on his previous application and without therefore knowing the basis upon which that application had been rejected.

 

21.            Detailed submissions in writing were made in relation to the basis of the application, namely that there have been significant and serious political developments in Georgia since the Applicant was refused international protection on appeal previously, which have resulted in ongoing violence and political unrest in Georgia.  Reliance was also placed on alleged procedural defects arising in the processing of the Applicant's initial claim for protection with specific reference to s. 18 of the 2015 Act.  The submissions stated:

 

"the crux of our application is twofold.  In the first instance, there have been significant and serious developments in Georgia since our client was refused international protection on appeal previously, which have resulted in ongoing violence and political unrest in Georgia.  Secondly, that our client's application for international protection in the State was administratively unfair and flawed from the outset which resulted in his not being able to present his case effectively pursuant to section 22(4) of the 2015 Act."

 

22.            It was further pointed out in these submissions that the Applicant's new solicitors did not have his complete file and did not have a copy of the IPAT decision recommending refusal of his protection application.  The Minister was requested to provide an undertaking that the Applicant would not be removed from the State pending the determination of his s. 22 application.  Express reliance was placed on Seredych v. Minister for Justice [2020] IESC 62; [2023] 3 I.R. 668 and P.N.S. v. Minister for Justice and Equality [2020] IESC 11.

 

23.            Separately, a further application pursuant to s. 3(11) of the 1999 Act seeking to have the deportation order revoked was made by email dated the 13^th of February, 2025.

 

24.            By mail dated the 17^th of February, 2025, it was confirmed on behalf of the Minister that the Applicant would not be deported pending the outcome of his s. 22 application seeking the consent of the Minister for Justice to make a subsequent application for protection.

 

25.            By email dated the 18^th of February, 2025, a response was provided on behalf of the Minister to a request that the Applicant be released from custody pending the conclusion of the s. 22 process confirming:

 

 

"....as previously stated your applicant is currently being held on foot of his extant deportation order.  This order is still valid and will only be revoked if your client's application seeking consent of the Minister for Justice to make a subsequent international protection application is successful."

 

26.             By separate correspondence on the 18^th of February 2025, the IPO issued its decision recommending that the Minister refuse to give the Applicant consent to make a subsequent application for international protection.  It was found, inter alia, that the Applicant had submitted no new evidence or information supporting his claim that he is at risk of persecution or harm for being a member of the Girchi political party, and that the COI material was generic and non-specific.

 

 

27.            In its decision to recommend refusal of a recommendation, the IPO found (at para. 5.5) that:

 

"A qualitative decision has been made regarding whether this section 22 application merits a subsequent application.  The international protection office has regard to the following:

·         The fact that the applicant had poor legal representation during his initial application for international protection is not relevant to a section 22 application.  The onus is on the applicant to find suitable representation.

·         The fact that the applicant submitted an incorrect application to the international protection appeals tribunal to appeal the first instance decision is not relevant to a section 22 application. 

·         The applicant's application for international protection that he was at risk of persecution for being a member of the opposing political party called Girchi was examined and refused by an international protection officer and this decision was affirmed at appeal in March 2023 and the applicant has not submitted any new evidence or information to support his claim. 

·         The various generic country of origin information submitted with the applicant's section 22 application is non-specific and does not hold probative value.

Having carried out a preliminary examination of the application, I am satisfied for the reasons set out above that no new elements or findings have arisen or have been presented by the person making this section 22 application for the Minister's consent which make it significantly more likely that the applicant would qualify for international protection."

 

28.            On foot of this decision, also on the 18^th of February, 2025, the Applicant's new solicitors made a subject access request seeking disclosure of the file. Thereafter, an appeal was brought against the IPO decision pursuant to s. 22(8) of the 2015 Act on the 19^th of February, 2025.  This appeal remains pending before the IPAT.  No timeframe for decision has been confirmed in evidence albeit counsel on behalf of the Minister indicated that the appeal would be prioritised by IPAT, whereas counsel for the Applicant points to a typical timeframe of more than 3 months on such appeals.  

 

29.            The Applicant expressly reserved the right to put in supplemental submissions in support of this appeal in circumstances where the IPAT decision on his earlier international protection application was not available to his solicitors when the s. 22 application was made to the IPO nor by the time an appeal was lodged to the IPAT under s. 22(8).  No such supplemental submissions had been made by the 11^th of March, 2025, when this case proceeded to hearing before me. 

 

30.            Like the first instance application, the appeal lodged has been premised on the same rejected claim that the Applicant "is a member/supporter of the Girchi Party in Georgia and such new developments are acutely relevant to his risk of persecution and/or serious harm.''

 

31.            By email dated the 19^th of February, 2025, after the lodgement of an appeal to IPAT against the s. 22(5) decision to refuse to recommend consent to a subsequent application, the Applicant's solicitors were advised that the Applicant would not be released from custody and no undertaking would be given.  It was further stated:

 

"Please note that a 3(11) application and a section 22 appeal are both non suspensive to deportation"

 

32.            These proceedings were commenced on the 27^th of February, 2025, the same day the Applicant was scheduled to be deported on a special charter flight.  In granting leave to seek relief by way of judicial review late in the afternoon of the 27^th of February, 2025 on an urgent basis, Simons J. also granted an interlocutory order restraining the Applicant's deportation until the 14^th of March, 2025 or further order.  In making the said Order, Simons J. limited the term of the Order.  No note of his ruling is available to me but I am told that he did so having regard to the decision of the Supreme Court in M.D. (A Minor) v. Board of a Secondary School [2024] IESC 11.  This case addressed the jurisdiction and practice of the High Court in granting interim and interlocutory relief in Order 84 judicial review proceedings.  The ratio of the Supreme Court's decision in M.D. is directed primarily to the grant of interim relief on a time limited basis and requires the moving party to apply for interlocutory relief on notice to the Minister. 

 

33.            In consequence of the injunctive order made, the Applicant was not deported on the special charter flight, as originally intended.  I am informed that the Minister has appealed to the Court of Appeal against the grant of injunctive relief, albeit that the order made on the 27^th of February, 2025, will be spent on the 14^th of March, 2025, unless continued by further order.

 

34.            The primary relief sought in the substantive proceedings is an order restraining the Applicant's removal from the State pending the determination of his appeal against a refusal of consent by the Minister to allow him to make a subsequent application for international protection pursuant to s. 22 of the 2015 Act. 

 

35.            The proceedings are grounded on affidavits sworn by the Applicant's solicitor and by the Applicant.  In his affidavit sworn on the 27^th of February, 2025, the Applicant confirms that he speaks English and understands written English (at paragraph 2).  He reiterates in a further paragraph (paragraph 3(vi)) that "I speak English and I fully understand this Affidavit." 

 

36.            It warrants note that the Applicant does not appear to have required the assistance of an interpreter or translator in swearing his affidavit, despite otherwise claiming in these proceedings that he was wrongly not afforded interpretation or documents in a language he understood at earlier stages of the process.

 

37.            A date for the hearing of a bail application was sought before me on the 3^rd of March, 2025.  I listed it for hearing the next day.  On the 5^th of March, 2025, I refused to admit the Applicant to bail (see ex tempore judgment on the bail application with neutral citation of [2025] IEHC 133) on hearing evidence that arrangements were in place to deport him on the 19^th of March, 2025, and in circumstances where I had been able to accommodate an expedited hearing of the proceedings for the 11^th of March, 2025 (within two weeks of the institution of proceedings), in advance of an imminent new deportation date. 

 

38.            In opposing these proceedings, the Minister refers to the Government's recent policy to recommence deportations from the State.  On affidavit reference is made to public confirmation given by Ministerial Statement to the effect that chartered flights will be used to enforce the State's immigration laws following a procurement process.  It is pointed out that on the 27^th of February, 2025, the date first scheduled for the Applicant's deportation, a chartered flight to Georgia removed a number of persons who were subject to extant deportation orders from the State.  This flight was the first operation conducted under a contract signed by the State in November, 2024, for the provision of charter aircraft for these purposes. According to his press statement, the Minister intends to conduct further such operations in 2025.  

 

39.            As the Minister further outlined by statement made on the 28^th of February, 2025, and exhibited by replying affidavit, it is a central priority for his department and the current Government that the State's immigration laws are robust and enforced in the public interest.  The Minister is quoted as saying:

 

"A central priority for me and this government is that our immigration laws are robust and enforced. People are entitled to have confidence in our immigration system and there must be consequences for individuals who refuse to leave the State when they are ordered to do so. We have a rules-based system for International Protection applicants. For rules to have meaning, they must be enforced."

 

According to the recently announced policy, the Minister is committed to making the returns system more efficient so that people who are not entitled to be in the State depart whether voluntarily or otherwise and do so swiftly. 

 

40.            Although the Applicant through his solicitors now maintains that he was never advised of his rights in a language he understood when presenting his international protection application and was misled by a "consultant", he has not sworn an affidavit to this effect in these proceedings.  The Applicant has not sought to address on affidavit why he did not seek legal advice earlier nor why, having obtained the benefit of legal assistance in 2023, at any time thereafter and prior to his arrest and detention for the purpose of deportation, he did not make the application pursuant to s. 22 which was finally only presented on his behalf in February, 2025, in the face of imminent deportation and after he had been arrested. 

 

41.            In a late affidavit sworn on the 10^th of March, 2025 and admitted into evidence without objection on behalf of the Applicant on the 11^th of March, 2025 on behalf of the Minister, details relating to the Applicant's work history in the State are given.  The potential relevance of this information is twofold.  Firstly, it appears that the Applicant was not being truthful with his legal representatives when he instructed them that he was unable to work in the context of the further application made under s. 3(11) on the 13^th of February, 2025.  In fact, based on the information now before me, the Applicant was working illegally between the making of the Deportation Order and his detention for the purpose of giving effect to the order.  The second potential relevance of this new information is that it explains why the Applicant was happy to remain in the State for an eighteen-month period following the making of a deportation order against him without taking any further step to regularize his position. 

 

42.            Due to the late delivery of this last Affidavit immediately prior to the commencement of the hearing before me, the Applicant was given liberty to file a replying affidavit up to close of business on the 13^th of March, 2025, in advance of an anticipated judgment delivery date of 14^th of March, 2025.  By email received before close of business on the 13^th of March, 2025, the Applicant's solicitor advised that having taken instructions on the content of the latest affidavit filed on behalf of the Minister, they have no need to file a replying affidavit. 

 

LEGAL FRAMEWORK

 

43.            Section 3(1) of the Immigration Act, 1999 (as amended) (hereinafter "the 1999 Act") provides for the making of a deportation order while s. 3(11) provides for its revocation as follows:

 

"3(11) The Minister may by order amend or revoke an order made under this section including an order under this subsection."

 

44.            Applications made on behalf of the Applicant in July, 2023, and February, 2025, for revocation of the deportation order made against him remain under consideration and have not been decided.  No statutory provision is made for suspensive effect of a s. 3(11) application on an extant deportation order.

 

45.            Any challenge to a decision to make a deportation order or to refuse to revoke it, is governed by s. 5 of the Illegal Immigrants (Trafficking) Act, 2000 (hereinafter "the 2000 Act").  Section 5(1) provides in relevant part:

 

 

"5.—(1) A person shall not question the validity of—

(a), (b),

(c) a deportation order under section 3(1) of the Immigration Act 1999,

(d), (e), (f), (g), (h), (i), (j), (k), (l)

(m) an order under section 3(11) of the Immigration Act 1999,

(n), (o), (oa), (ob), (oc),

(od) a recommendation of an international protection officer under section 22 (5) of the International Protection Act 2015,

(oe) a decision of the International Protection Appeals Tribunal under section 22 (11)(a) of the International Protection Act 2015,

(of) a refusal by the Minister under section 22 (15) of the International Protection Act 2015,

(og), (oh), (oi), (oj), (ok), (p),

otherwise than by way of an application for judicial review under Order 84 of Rules of the Superior Courts (S.I. No. 15 of 1986) (hereafter in this section

referred to as "the Order")."

 

An issue arises in these proceedings as to whether the proceedings come within the scope of s. 5 of the 2000 Act as a collateral attack on the extant deportation order  or whether they fall outside it.  To note as an aside, a recommendation under s. 22(5) or a decision under s. 22(11)(a) and a refusal under s. 22(15) are also specified under s. 5 of the 2000 Act.  No challenge has been brought to the s. 22(5) recommendation by way of judicial review and the Applicant has instead pursued the option of an appeal to IPAT under s. 22(8), which appeal remains pending. 

 

46.            Under s. 5(2) of the 2000 Act, an application for leave to apply for judicial review under the Order in respect of any of the matters referred to in s. 5(1) must be made within the period of 28 days commencing on the date on which the person was notified of the decision, determination, recommendation, refusal or making of the order concerned, unless the High Court considers that there is good and sufficient reason for extending the period within which the application shall be made, and such leave shall not be granted unless the High Court is satisfied that there are substantial grounds for contending that the decision, determination, recommendation, refusal or order is invalid or ought to be quashed. 

 

47.            Under s. 5(6)(a) of the 2000 Act the determination by the High Court of an application for leave to apply for judicial review to which this section applies, or of an application for such judicial review, shall be final and no appeal shall lie except with the leave of the High Court which leave shall only be granted where the High Court certifies that its decision involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken.

 

48.            I am asked to determine the question of whether these proceedings come within the scope of s.5(1) of the 2000 Act because it is relevant to the question of an appeal against this decision, specifically whether a certificate for leave to appeal is required on the basis that the threshold requirements of s. 5(6)(a) are met or whether the parties enjoy an automatic right of appeal. 

 

49.            Section 22 of the 2015 Act provides, in relevant part, for a "subsequent application", namely an application for international protection made by a person who has made a previous application for international protection in limited circumstances as follows:

 

22.      (1) A person shall not make a subsequent application without the consent of the Minister, given under this section.

(2) ......

(3) .....

(4) An international protection officer shall recommend to the Minister that the Minister give his or her consent to the making of a subsequent application where, following a preliminary examination of an application under subsection (2), the officer is satisfied that—

(a) since the determination of the previous application concerned, new elements or findings have arisen or have been presented by the person which make it significantly more likely that the person will qualify for international protection, and the person was, through no fault of the person, incapable of presenting those elements or findings for the purposes of his or her previous application, or

(b)....

(5) An international protection officer shall recommend to the Minister that the Minister refuse to give his or her consent to the making of a subsequent application where, following a preliminary examination of an application under subsection (2), the officer is satisfied that neither paragraph (a) nor (b) of subsection (4) applies in respect of the person.

(6) Where an international protection officer makes a recommendation under subsection (5), the Minister shall, as soon as practicable, notify the person concerned and his or her legal representative (if known) of the recommendation, which notification shall include a statement—

(a) of the reasons for the recommendation, and

(b) informing the person concerned of his or her entitlement under subsection (8) to appeal to the Tribunal against the recommendation.

(7) The Minister shall notify the High Commissioner of a recommendation under subsection (5).

(8) A person to whom a notification under subsection (6) is sent may, within such period from the date of the notification as may be prescribed under section 77, appeal to the Tribunal against the recommendation concerned.

(9) Sections 41, 44, 45 and 46(8) shall apply to an appeal under subsection (8), subject to the following modifications, and any other necessary modifications:

(a) the Tribunal shall make its decision without an oral hearing;

(b) a reference in section 44 to the documents given to the applicant under section 40 shall be construed as a reference to the notification given to the applicant under subsection (6).

(10) Before reaching a decision on an appeal under subsection (8), the Tribunal shall consider the following—

(a) the notice of appeal,

(b) all material furnished to the Tribunal by the Minister that is relevant to the recommendation concerned,

(c) any observations made to the Tribunal by the Minister or the High Commissioner, and

(d) such other matters as the Tribunal considers relevant to the appeal.

(11) In relation to an appeal under subsection (8), the Tribunal may decide to—

(a) affirm the recommendation of the international protection officer, or

(b) set aside the recommendation of the international protection officer.

(12) The decision of the Tribunal on an appeal under subsection (8) and the reasons for the decision shall be communicated by the Tribunal to the person concerned and his or her legal representative (if known), the Minister and the High Commissioner.

(13) Where—

(a) an international protection officer makes a recommendation under subsection (4), or

(b) the Tribunal, under subsection (11), sets aside a recommendation under subsection (5),

the Minister shall give his or her consent to the making of a subsequent application by the person concerned.

(14) Where the Minister gives his or her consent under subsection (13) —

(a) he or she shall, as soon as practicable, notify the person concerned and his or her legal representative (if known) of that fact, and

(b) the person concerned shall be entitled, within 10 working days of the sending of the notification under paragraph (a), to make a subsequent application.

(15) .....

(16) .....

(17) .....

(18)..."

 

No express statutory provision is made for suspensive effect of an application under s. 22 pending the decision of the IPO under s. 22(5) or an appeal under s. 22(8).  As apparent from the terms of s. 5(1) of the 2000 Act and noted above, decisions on applications under s. 22 of the 2015 Act also come within the scope of that provision (by the terms of s. 5(1)(od) (oe) and (of) of the 2000 Act). 

 

50.            Provision for a subsequent application in s. 22 of the 2015 Act is in line with a power vested in the State under EU law to provide for such an application, most particularly Council Directive 2005/85/EC (hereinafter "the Procedures Directive") which provides for a "subsequent application" and specifies rules as to when such an application may be refused.  As a prelude to the specific provisions dealing with subsequent applications and of assistance in interpreting the meaning and effect of those provisions, it bears note that the Procedures Directive reaffirms the principle of non-refoulement (Recital 2) and acknowledges as a basic principle of Community law that a decision taken on an application for asylum is subject to an effective remedy before a court or tribunal (Recital 27). 

 

51.             Importantly, Article 7 of the Procedures Directive provides for a right to remain in the Member State for the sole purpose of the protection procedure, until the determining authority has decided in accordance with the proceedings are first instance as set out in Chapter III.  The right to remain pending a first instance decision is set out in Article 7(1).  The right endures "until the determining authority has made a decision in accordance with the procedures at first instance set out in Chapter III".  Under the Procedures Directive a determining authority means "any quasi-judicial or administrative body in a member state responsible for examining applications for asylum and competent to take decisions at first instance in such cases, subject to Annex I".  Article 7(2) allows Member States to make an exception to a requirement to consider a subsequent application in accordance with Articles 32 and 34.  

 

52.            Article 32 of the Procedures Directive provides for a "subsequent application" and when the right to make one may be restricted in the following terms:

 

1.   Where a person who has applied for asylum in a Member State makes further representations or a subsequent application in the same Member State, that Member State may examine these further representations or the elements of the subsequent application in the framework of the examination of the previous application or in the framework of the examination of the decision under review or appeal, insofar as the competent authorities can take into account and consider all the elements underlying the further representations or subsequent application within this framework.

2.   Moreover, Member States may apply a specific procedure as referred to in paragraph 3, where a person makes a subsequent application for asylum:

(a)        after his/her previous application has been withdrawn or abandoned by virtue of Articles 19 or 20;

(b)        after a decision has been taken on the previous application. Member States may also decide to apply this procedure only after a final decision has been taken.

3.   A subsequent application for asylum shall be subject first to a preliminary examination as to whether, after the withdrawal of the previous application or after the decision referred to in paragraph 2(b) of this Article on this application has been reached, new elements or findings relating to the examination of whether he/she qualifies as a refugee by virtue of Directive 2004/83/EC have arisen or have been presented by the applicant.

4.   If, following the preliminary examination referred to in paragraph 3 of this Article, new elements or findings arise or are presented by the applicant which significantly add to the likelihood of the applicant qualifying as a refugee by virtue of Directive 2004/83/EC, the application shall be further examined in conformity with Chapter II.

5.   Member States may, in accordance with national legislation, further examine a subsequent application where there are other reasons why a procedure has to be re-opened.

6.   Member States may decide to further examine the application only if the applicant concerned was, through no fault of his/her own, incapable of asserting the situations set forth in paragraphs 3, 4 and 5 of this Article in the previous procedure, in particular by exercising his/her right to an effective remedy pursuant to Article 39.

7.   ...."

 

53.            Accordingly, Article 32 of the Procedures Directive allows Member States to refuse to examine a subsequent application where upon a preliminary examination it appears that no new elements or findings relating to qualification for refugee status have been presented which significantly add to the likelihood of the applicant qualifying as a refugee (Article 32(4)) or where the applicant, was not previously incapable of asserting the "new" elements set forth (Article 32(6)). 

 

54.            Article 34 is addressed to procedural rules governing the assessment process and in material part permits Member States to lay down rules in relation to a preliminary examination so long as those rules do not render impossible the access of applicants for asylum to a new procedure or result in the effective annulment or severe curtailment of such access.

 

55.            Importantly, Article 39 of the Procedures Directive is addressed to appeals procedures and the right to an effective remedy.  Under Article 39(1)(c), Member States are obliged to ensure that applicants for asylum have the right to an effective remedy before a court or tribunal against a decision not to further examine a subsequent application pursuant to Articles 32 and 34.  The s. 22(8) provision for an appeal to IPAT together is the remedy provided in Irish law in respect of such a decision. 

 

56.            Under Article 39(3)(a) of the Procedures Directive, there is no requirement on the State to allow an applicant presenting a subsequent application to remain pending the exhaustion of any remedy in respect of a refusal of the application and whether permission to remain is granted is expressly a matter for individual member states.  Article 39(3)(b) requires the possibility of a legal remedy or protective measures where the remedy provided does not have the effect of allowing applicants to remain in the Member State concerned pending the outcome of the appeal in respect of a subsequent application. 

 

 

57.            Whereas the Procedures Directive provides for a right to remain pending a first instance decision from a determining authority, in Ireland the IPO, pursuant to Article 7(1) but not for the purpose of exhausting a remedy in respect of a refusal consent to a subsequent application provided protective measures are available, it is to be noted that s. 22 of the 2015 Act is silent in this regard.  No specific provision is made for a right to remain pending a decision of either the IPO or the IPAT on appeal.  While no provision is made in the 2015 Act for protective measures or a legal remedy as required in accordance with Article 39(3)(b), this requirement is said to be met within the domestic legal system by the possibility of an application to the courts for injunctive relief such as that in the within proceedings.

 

58.            Finally, it bears note that under s. 72 of the 2015 Act and the Internation Protection Act 2015 (Safe Countries of Origin) Order 2018 (No. 121 of 2018), the Minister has designated certain countries safe countries of origin.  Georgia is one of these countries.  Under the Procedures Directive, it is permissible to operate a safe country of origin procedure if, in accordance with Article 30, the requirements of Annex II are met in the designation process.  Under Annex II, a country is considered as a safe country of origin where, on the basis of the legal situation, the application of the law within a democratic system and the general political circumstances, it can be shown that there is generally and consistently no persecution as defined in Article 9 of Directive 2004/83/EC (hereinafter "the Qualifications Directive"), no torture or inhuman or degrading treatment or punishment and no threat by reason of indiscriminate violence in situations of international or internal armed conflict.  In making this assessment, account is required to be taken, inter alia, of the extent to which protection is provided against persecution or mistreatment by:

 

 

(a)        the relevant laws and regulations of the country and the manner in which they are applied;

(b)        observance of the rights and freedoms laid down in the European Convention for the Protection of Human Rights and Fundamental Freedoms and/or the International Covenant for Civil and Political Rights and/or the Convention against Torture, in particular the rights from which derogation cannot be made under Article 15(2) of the said European Convention;

(c)        respect of the non-refoulement principle according to the Geneva Convention; (d)            provision for a system of effective remedies against violations of these rights and freedoms.

 

 

59.            In line with the Procedures Directive, s. 72 of the 2015 Act allows the Minister to designate a country as a safe country of origin where the prescribed conditions set in Annex II are met.  ln making an assessment under s. 72 in deciding whether to designate, the Minister must take account of, among other things, the extent to which protection is provided against persecution or mistreatment by: the relevant laws and regulations of the country and the manner in which they are applied; observance of the rights and freedoms laid down in, among other things, the European Convention on Human Rights; respect for the non-refoulement principle in accordance with the Geneva Convention; and provision for a system of effective remedies against violations of those rights and freedoms.

 

60.            By reason of designation of Georgia as a safe country of origin by the State, the Applicant's country of origin is deemed to be safe for the purpose of a consideration of his international protection claim unless he submits serious grounds for considering the country not to be safe in his circumstances and in terms of his eligibility for international protection in accordance with s. 33 of the 2015 Act.  Designation of a country as a safe country of origin is subject to regular review in accordance with s. 72(5) of the 2015 Act.

 

61.            It bears note that the recognition of the safe country of origin concept provided for in the Procedures Directive is maintained in slightly modified terms in the Recast Procedures Directive (to which Ireland has not bound itself pursuant to Protocol No 21 on the position of the United Kingdom and Ireland in respect of the Area of Freedom, Security and Justice, annexed to the Treaty on European Union (TEU) and the TFEU).  In 2015, the European Commission proposed a regulation establishing an EU common list of safe countries of origin, but no such regulation has been adopted and there is no EU wide common list of safe countries of origin.  There is therefore no obligation on the State to operate a safe country of origin procedure but such a procedure is permissible under EU law provided certain safeguards, as provided for under the Procedures Directive and transposed by the terms of s. 72 of the 2015 Act, apply. 

 

 

SAFE COUNTRY OF ORIGIN DESIGNATION (GEORGIA)

 

62.            Like Ireland, most EU Member State operate safe country of origin lists and a majority of EU Member States also designate Georgia as a safe country of origin.  As apparent from material exhibited on behalf of the Minister, the designation of a country of origin as safe is not necessarily all-encompassing.  In many cases EU countries define exceptions for specific geographical areas or profiles of asylum seekers within a country of origin.  Exceptions for certain geographical areas are found for Georgia in relation to Abkhazia and South Ossetia (Czechia, Denmark and Estonia).  Exceptions may also be made for certain profiles of asylum seekers and in the case of Georgia, LGBTQ+ applicants are exempted from safe country of origin designation by the Netherlands.

 

63.            In accordance with a permitted safe country of origin designation, where a person making an application for international protection is from a country designated as a safe country of origin, there is a rebuttable presumption that they are not in need of protection.  Under EU law, the designation of a third country as a safe country of origin cannot establish an absolute guarantee of safety for nationals of that country.  By its very nature, the assessment underlying the designation can only consider the general civil, legal and political circumstances in that country and whether actors of persecution, torture or inhuman or degrading treatment or punishment are subject to sanction in practice when found liable in that country.

 

64.            Accordingly, the designation of a state as a safe country of origin does not mean that a claim is inadmissible or that a person forfeits the right to make an application.  It does, however, place an onus on the Applicant to demonstrate why, and by way of exception, they need protection.  While the burden of proof in a protection claim is somewhat higher for applicants from safe countries of origin, it remains the case that where sufficient grounds are established for considering that the country is not safe in his/her circumstances, international protection is granted.  ln considering all evidence/documentation and representations made, decision makers are guided by the principle set down in the UNHCR's Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status, that while the burden of proof in principle rests on the applicant, the duty to ascertain and evaluate all the relevant facts is shared between the applicant and the examiner.

 

65.            Ireland has designated 15 countries as safe countries, including Georgia.  Once designated, the Minister is obliged to review the safe country designation on a regular basis (s. 72(5) of the 2015 Act).  In this regard, as Ms. Elaine Houlihan has averred at paragraph 13 of her Affidavit sworn on the 5^th of March, 2025, it has been confirmed that the Minister carried out the most recent review of the designation of Georgia as a safe country on the 26^th of February, 2025.  Ms. Houlihan exhibits the memorandum prepared in the context of that review in which it was recommended that the designation of Georgia be continued.  In arriving at this recommendation, a range of sources of information was considered with express reference to s. 72(4) of the 2015 Act having regard to the requirements of s. 72(3)(a)(b)(c) and (d). 

 

66.            In the said memorandum, the Minister's approval was sought to retain the Republic of Georgia on the list of countries designated as a safe country of origin for the purposes of the 2015 Act in circumstances where the last previous formal review of Georgia was conducted in February, 2024.  According to the Memorandum, the situation in Georgia had been reassessed.  It was noted that while there are reports of individual breaches of fundamental rights (including by the police), they are not indicative of general or consistent conditions and it is further observed that Georgia remains a country with an active civil society.  

 

67.            In the Memorandum, the designation of Georgia as a safe country of origin in other European Countries Safe country of origin lists was considered and it was noted that Georgia frequently features on safe country lists, with the European Asylum Agency reporting that it appeared on 73% of national lists in 2022. It was noted that the Department of Foreign Affairs had indicated that there has been considerable evidence of democratic backsliding in Georgia in the 2023-2025 period, including high levels of political polarisation, the passing of legislation limiting civil society space and the rights of the LGBTQI+ community, reports of election irregularities, a shift towards authoritarian rule, and disengagement from the EU integration pathway raising serious questions about the direction of travel for Georgia, as a parliamentary democracy.  It is noted, however, that there has been no impact to date on the basic human rights of the LGBTQ+ community around safety, and no reports of the deprivation of life; torture, cruel or degrading treatment or punishment; slavery and forced labour.

 

68.            It was noted that reports find women and members of the LGBTQI+ community as particularly vulnerable groups.  Accordingly, it was noted that ongoing attention to the status of LGBTQI+ rights will be important.  These negative considerations notwithstanding, it was recommended that Georgia would remain as one of the countries designated as a safe country of origin for the purposes of the 2015 Act. 

 

69.            The recommendation was based, inter alia, on the fact that the Georgian Constitution provides fundamental guarantees and that further protections have been expanded upon in law and having regard to COI.  Reliance was placed on the EUAA Annual Report 2024, the State of the World's Human Rights (Amnesty International, April 2024) and Nations in Transit 2024 Country Report, Freedom House (published February, 2025) as well as a range of other material including the European Commission 'Communication from the Commission to the European parliament, the European Council and the Council: Commission Opinion on Georgia's application for membership of the European Union' 17.06.22, the Report of the UN General Assembly's Independent Expert on the Promotion of a Democratic and Equitable International Order on his visit to Georgia (6 September, 2023), the Council of Europe 'Consolidated report on the conflict in Georgia (October 2023 - March 2024)', 15.04.24; the US Department of State '2023 Country Reports on Human Rights Practices: Georgia', 22.04.24; the Council of Europe Commissioner for Human Rights 'Georgia: Protect freedom of assembly and expression, ensure accountability for human rights violations and end stigmatization of NGOs and LGBTI people', 24.01.2025, the EEAS 'EU Annual Report on Human Rights and Democracy In The World 2023 Country Updates', 29.05.24, Amnesty International 'State of the World's Human Rights: April 2024', 23.04.2024 and the European Commission 'Commission Staff Working Document; Georgia 2024 Report; Accompanying the document: Communication from the commission to the European Parliament, The Council, The European Economic and Social Committee and the Committee of Regions', 30.10.2024.  The Nations in Transit 2024 Country Report, Freedom House was particularly up to date as it was published in February, 2025 immediately before the review was conducted.

 

DISCUSSION AND DECISION

 

70.            In opposing these proceedings and seeking an expedited hearing, it is confirmed on his behalf that the Minister has a continuing and settled intention to deport the Applicant from the State.  The Minister stands over his entitlement to enforce the extant and unchallenged Deportation Order and maintains that injunctive relief should not be granted on the facts and circumstances of this case.

Collateral Attack on Deportation Order

 

71.            As a preliminary issue, the Minister contends that the principal reliefs sought in these proceedings amount to a collateral attack on the validity and enforcement of the unchallenged Deportation Order dated the 31^st of May, 2023.  It is further maintained that, in consequence, any claim for such purported relief is subject to s. 5 of the 2000 Act.  Accordingly, the Minister maintains that the Applicant is out of time to bring such a challenge.  Separately, it is contended that any appeal against a decision to refuse relief in these proceedings must be subject to a requirement to obtain a certificate in accordance with s. 5(6) of the 2000 Act. 

 

72.            I have been referred to a series of cases including Nawaz v. Minister for Justice & Ors. [2012] IESC 58, [2013] 1 IR 142, K.N. v. Minister for Justice [2013] IEHC 566, X.X. v. Minister for Justice [2019] IESC 59, [2020] 3 I.R. 532, P.N.S. (Cameroon) v. Minister for Justice (both first instance and on appeal) [2018] IEHC 504 and [2020] IESC 11 and A.W.K. (Pakistan) v. Minister for Justice & Ors. [2020] IESC 10.  A comprehensive and helpful review of relevant authorities was carried out by McKechnie J. in P.N.S. (Cameroon) v. Minister for Justice which I gratefully adopt.

 

73.            Having reviewed a range of authorities, McKechnie J. in P.N.S. (Cameroon) v. Minister for Justice identified some general principles (at para. 66) as follows:

 

"The following therefore is my view of what the situation is in the context of this aspect of the appeal:-

 

(i)                 It is common case that subject to the following, a "collateral attack", properly so classified, should be regarded as the equivalent of a direct attack on the subject measure for, inter alia, procedural purposes.

(ii)              In deciding upon the question, the Court looks at the gist and essence of the proceedings and in particular at the substance of the reliefs claimed. The phraseology used in the pleadings is not determinative: neither is a submission that there is no "per se" challenge to the captured measure: substance prevails over form.

(iii)            It is an oversimplification to pitch the test only as being whether the purpose or motivation, object or effect of the proceedings is to mount a challenge to the measure in question. Purpose and motive alone may be sufficient: but on many occasions will not be: object together with effect will almost always be sufficient.

(iv)             If an applicant can assert a right, either legally or constitutionally based, which is independently sourced, from that which underpins the validity of a deportation order, whether within the asylum process or otherwise, such a right should be given effect to even if there is consequential effect for the enforcement of the order: either conditioned in terms of time, steps or measures: such may arise in a variety of circumstances.

(v)               Hogan J. gave examples of what he described as post hoc events which may have this effect: such as the naturalisation of the subject person as an Irish citizen, the bona fide exercise of free movement rights following a valid marriage to an EU citizen, and the application of some form of judicial protection such as that resulting from Zambrano etc. There may well be other like examples of supervening events which fall into this category.

(vi)             In Mekudi Yau v. Minister for Justice, Equality and Law Reform and the Governor of Cloverhill Prison [2005] IEHC 360 (Unreported, High Court, O'Neill J, 14th October, 2005) O'Neill J. said "there are many instances where an order which was made validly can cease to have force and effect, for example a deportation order which is excessively delayed or which is used for an ulterior purpose": one may add to this, where bad faith can be established.

(vii)           In addition, there could be cases where ancillary steps may have to be taken to enforce the deportation order. The arrest and incarceration of an intended deportee immediately comes to mind. Where necessary, the legal requirements for such a step(s) must be adhered to. If not, the arrest may be unlawful and even if a declaration to that effect would have consequences for the actual deportation of the individual concerned, such a challenge would not be captured by section 5.

(viii)         In my view, it would be entirely contrary to law, if any of the examples given, were denied effect simply because s. 5 of the 2000 Act was not complied with. The right which these examples give rise to, could be asserted and must be recognised, if in itself, it is not captured by s. 5 of the 2000 Act. In those circumstances, the right must be fully vindicated."

 

74.            Although the Court in P.N.S. (Cameroon) v. Minister for Justice was concerned with an almost identical question to that which arises here, McKechnie J. determined that it was not necessary to express a concluded view on the issue because he had decided that the right to remain under s. 22 only extended to the time taken for the IPO decision with the result that no right to remain was conferred by the existence of an appeal to IPAT which, on the argument presented in that case, was dispositive of the issues in the proceedings. 

 

75.            Authorities such as Nawaz tend to favour the Minister's interpretation of the scope of s. 5.  In that case a central question was whether a challenge to the constitutionality of s. 3(1) of the 1999 Act should be regarded as a direct attack on the Minister's ability to make a deportation order.  Clarke J., as he then was, held that the correct approach was one of substance and not form holding that a constitutional challenge to the statutory provisions under which an "adverse order" may be made, being one of the specified measures, should of itself be regarded as a pre-emptive attack on the validity of such a possible order, which in that case was a deportation order; with the result that such proceedings were therefore captured by s. 5 of the 2000 Act.  

 

76.            It is certainly possible to construe the within proceedings as a similar attack on the validity of the deportation order, a specified measure under s. 5(1) of the 2000 Act and such an approach is consistent with a view that an injunction to restrain enforcement of a public law remedy is a collateral challenge to its validity for which there is much support, but I am not satisfied that a proper application of the principles identified by McKechnie J. in P.N.S. (Cameroon) supports this conclusion. 

 

77.            Applying the P.N.S. (Cameroon) principles, it seems to me that it can equally be said that the Applicant is asserting a right which is independently sourced from that which underpins the validity of a deportation order, namely a right to have a qualifying subsequent application considered and to access an effective remedy in respect of a refusal to agree to consider it, even if there is consequential effect for the enforcement of the deportation order in certain circumstances.  The making of a subsequent application could similarly be considered a further example of a post hoc or supervening event which may have a consequential effect for the enforcement of the deportation order.

 

78.            Notwithstanding that some of the authority considered by McKechnie J. support the interpretation favoured by the Minister, the precise question has not yet been determined.  For my own part, I consider there to be a striking inconsistency in the Minister's argument which I find difficult to reconcile with their overall approach to this case.  On the one hand, the Minister contends that these proceedings constitute a collateral attack on a deportation order and therefore fall within the scope of s. 5 of the 2000 Act.  On the other hand, the Minister maintains that the availability of proceedings of this kind allow the State to discharge its obligation to provide for a legal remedy or protective measures where the remedy provided in respect of the refusal to accept a subsequent protection application for consideration does not require that the applicant be permitted to remain pending its outcome in accordance with Article 39(3)(b) of the Procedures Directive. 

 

79.            It seems to me that the Minister cannot coherently make both arguments.  In my view the order sought in these proceedings cannot be properly treated as a collateral attack on a deportation order when, at the same time, the Applicant has a separate entitlement to the possibility of accessing a legal remedy or protective measure in the form of a measure enabling suspension of enforcement of a removal or deportation order in accordance with international obligations and where the outcome of an appeal on a subsequent application is pending.

 

80.            As was observed by Humphreys J. in P.N.S. (Cameroon) v. Minister for Justice [2018] IEHC 504 (at para. 34) at the High Court stage of proceedings before it proceeded to the Supreme Court, a key dimension to the issues arising in these proceedings is the fact that the right to an effective remedy under Article 39(1)(c) of the Procedures Directive is required in respect of a decision not to examine further a re-application. Therefore, to construe the Irish legislation in a manner that is most consistent with the letter and spirit of the Directive means that the IPO recommendation should be viewed as a "decision" for the purposes of Article 39(1)(c). 

 

81.            Notwithstanding that Humphreys J. found that s. 5 of the 2000 Act applied and the Supreme Court on appeal did not find it necessary to decide the point directly in the circumstances of that case, it seems to me that to the extent that the IPO recommendation is a decision albeit limited to whether to permit a subsequent application, then it is separate to and distinct from the decision to make a deportation order captured by the terms of s. 5(1) of the 2000 Act.  Furthermore, while the appeal to IPAT under s. 22(8) is the prescribed remedy, in the absence of any prescribed suspensive effect pending the determination of a s. 22 appeal to IPAT, the measures required under Article 39(3), namely the measures pursued in these proceedings in the form of injunctive relief, may only be obtained by the institution of proceedings before the Courts.

 

82.            If the possibility of applying for an injunction restraining deportation when a subsequent application is under consideration on appeal is a requirement of EU law, as the Minister appeared to acknowledge during the hearing before me and appears clear from Article 39(3)(b) of the Procedures Directive, then access to this remedy should not properly be curtailed on the basis that the deportation order previously made was not challenged in time and remains extant in the manner which occurs under s. 5 of the 2000 Act.  I note in this regard, however, that Humphreys J. suggests that while an applicant who seeks declaratory or injunctive reliefs to the effect that a deportation order is unenforceable is subject to s. 5 of the 2000 Act and apart from anything else has to bring the challenge within the time limits thereby provided, he continued that time limits run from when the grounds of unenforceability arise but then, assuming in favour of the applicant that he was wrong about that, went on to consider the application on its merits.  Of course, this begs the question as to when it might be said the grounds of unenforceability arose in a case, such as this one, where an applicant relies on what it is contended is a worsening country of origin position on a sliding basis.

 

83.            Given that the subsequent application may be made at any time after the refusal of a first application and the making of a deportation order but is based on new information occurring after the making of the deportation order, it seems to me that restricting the remedy to time-limits prescribed under s. 5(2) of the 2000 Act on the basis that the proceedings are in essence a collateral challenge to a deportation order made almost two years ago would not constitute an effective remedy compliant with the requirements of Article 39 of the Procedures Directive.  Granted the possibility of applying for an extension of time on the basis that the grounds of challenge run not from the making of the deportation order but from the refusal to give an undertaking in the context of a s. 22 application exists, it seems to me that a decision under s. 22(5) and a refusal under s. 22(11) of the 2015 Act are both separately specified for the purposes of s. 5(1) of the 2000 Act (ss. 5(1)(od), (oe) & (of)) is most consistent with the s. 22 process being treated as a distinct and separate process under the scheme of the 2015 Act.

 

84.            I acknowledge that the possibility of applying for an extension of time goes some way towards addressing the problem which arises when these proceedings are conceptualised as a collateral attack on the deportation order and therefore captured by s. 5 of the 2000 Act, it is not a full answer as it nonetheless requires the demonstration of an entitlement to an extension of time to bring the proceedings.  Of course, when a subsequent application is presented on the basis of something "new", the requirement to demonstrate good and sufficient reason for relief may not, in fact, be an overly burdensome one.  However, the fact that an extension of time is necessary at all in respect of a remedy which the State is required to provide for where a refusal of a subsequent application is under appeal and an order is required to comply with the State's international obligations confirms me in my view that these proceedings should not be classified as a collateral attack on the deportation order for the purpose of s. 5(1).

 

85.            As I determine below (in line with previous decisions of the Supreme Court) that no provision has been made in Irish law for an appeal to IPAT to have automatic suspensive effect, and none can be read in as a requirement of EU law (unlike the position with regard to the initial application to the IPO as deciding authority), it follows that a means of seeking protective relief must exist to restrain refoulement contrary to international obligations where a subsequent application is under consideration.  I do not construe the underlying right as an automatic suspension of a deportation order pending a determination of the s. 22(8) appeal, as contended on behalf of the Applicant, but rather as a right the possibility of applying and having an application considered and suspensive effect granted as a protective measure where sufficient grounds are demonstrated.  This it seems to me is a discrete right within the meaning of principle (iv) as stated ed by McKechnie J. in P.N.S. (Cameroon) v. Minister for Justice.  This being the case, principle (viii) equally applies and "it would be entirely contrary to law" to deny effect to that right "simply because s. 5 of the 2000 Act was not complied with. The right which these examples give rise to, could be asserted and must be recognised, if in itself, it is not captured by s. 5 of the 2000 Act. In those circumstances, the right must be fully vindicated."

 

86.            It is, therefore, my view that the within proceedings should not properly be categorised as a collateral attack on the deportation order made in May, 2023, but are instead an application for protective measures pending the outcome of a subsequent international protection application as envisaged under Article 39(3)(b) of the Procedures Directive.  This it seems to me is the outcome most in line with an application of the principles identified by McKechnie J. on appeal in P.N.S. (Cameroon) v. Minister for Justice, albeit he did not find it necessary to expressly decide the point on that appeal.  Restricting the right to access a mandatory remedy on the basis that it constitutes a collateral attack on an extant deportation order jars with Article 39(3)(b) of the Procedures Directive because, absent a more streamlined process, it would be almost impossible to initiate proceedings in accordance with time limits prescribed under s. 5(2).  To access the remedy, it would be routinely necessary to seek an extension of time granted for good and sufficient reason if time were treated as running from the notification of the making of the deportation order. 

 

87.            It seems to me as a matter of basic logic that if s. 5(2) of the 2000 Act has no application to an application for injunctive relief while a subsequent application is under consideration on appeal, it should follow that s. 5(6) also has no application.  If I am correct in this view, then the Applicant has an unfettered right of appeal against my decision on this application as proceedings for injunctive relief are not specified under s. 5(1) of the 2000 Act.  Accordingly, there is no necessity for a certificate granting leave to appeal on a point of law meeting the prescribed criteria under s. 5(6).

 

Suspensive Effect of s. 22(8) Appeal

 

88.                   It is important to situate s. 22 of the 2015 Act in its proper statutory context.  Section 22 only comes into play in the case of an applicant who has already had a claim for protection rejected in accordance with prescribed procedures but wishes to advance new grounds for making a fresh application because of relevant material not previously addressed which might potentially result in the grant of protection.   The term 'subsequent application' accordingly refers to a further application for international protection made after a final decision has been taken on a previous application.  The Applicant is not by virtue of applying for consent to make a subsequent application, an applicant for international protection.  He ceased. to be an 'applicant' for international protection on the 11^th of May 2023 (when he was informed in writing that:

 

"You have now ceased to be an applicant under the 2015 Act and, as such, the permission you were given to remain in the State while your application was being examined has expired "

 

Therefore, he cannot assert any right to remain in the State for the purpose of his appeal relying on a definition of an 'applicant' under s.2 or s.15 or s.16 of the 2015 Act.

 

 

89.            As explained in the case-law, the rationale underpinning the conditions permitted to be applied in respect of a subsequent application under the Procedures Directive (as retained in the Recast Directive 2013/32) is that where an applicant makes a subsequent application without presenting new evidence or arguments, it would be disproportionate to oblige Member States to carry out a new full examination procedure in accordance with the res judicata principle.  The rules are therefore designed to prevent a disproportionate administrative burden being imposed on national competent authorities by forcing them to reassess a situation which they have already examined.  At the same time, when adopting the provisions relating to subsequent applications, the EU legislature also intended to ensure a sufficiently high degree of protection for asylum seekers (Recital 18 of the Procedures Directive), as well as compliance with the principle of non-refoulement, which establishes that nobody can be sent back to persecution (Recitals 2 of Procedures Directive and 3 of the subsequent Recast Directive).

 

90.            Advocate General Emiliou observed in his opinion in C-216/22 A. A. v. Bundesrepublik Deutschland (albeit with reference to similar rules contained in the Recast Directive) that these provisions are aimed at allowing a State to prevent a situation where unsuccessful asylum seekers, whose previous application for international protection have already been rejected by a final decision and whose factual and legal position is virtually unchanged, keep 'trying their luck' before the competent authorities of the Member States.  He remarked that such a situation is desirable neither from the perspective of the Member States, due to the administrative burden that carrying out a full examination of every single subsequent application represents (especially when an application is abusive, for example because the applicant 'splits' on purpose the reasons for his or her application through multiple applications which he or she submits gradually), nor for the persons concerned, since it causes them to remain in 'legal limbo' and to live with the perpetual uncertainty of whether their situation will ever be resolved. 

 

91.            So, while EU law provides that Member States may reject subsequent applications as inadmissible, they may only do so under strict conditions.  A subsequent application can only be rejected as inadmissible in accordance with EU law if it is lodged after a final decision has been taken on a previous application where 'no new elements' relating to the examination of whether the applicant qualifies as a beneficiary of international protection have arisen or have been presented by the applicant or where the so called new elements could have been presented on the first application.

 

92.            Section 22 provides for a process which is clearly intended to be in-line with and transpose the requirements of the Procedures Directive.  In the absence of it being shown that the s. 22 application is repeated or abusive and while not expressly provided for in s. 22, it has been found that a repeat or subsequent applicant has an entitlement to remain pending a first instance decision (the decision of the IPO) on a first re-application for international protection by virtue of Article 7(1) of the Procedures Directive.  A decision at first instance for those purposes includes a re-application (because a re-application under Article 32 arises under Chapter III, referenced in Article 7(1)) but a re-application may be dealt with by way of a preliminary examination which derogates from the normal guarantees (as clear from Article 7(2) of the Procedures Directive).  As the Procedures Directive provides for a right to remain pending a first instance decision from a determining authority such as the International Protection Office ("the IPO"), suspensive effect has been read in to s. 22 where an application made under that section is awaiting a decision on a preliminary examination by the IPO.

 

93.            Recalling that suspensive effect has been read into the statutory scheme for the purpose of a preliminary examination by the IPO because it is necessary to give effect to the requirements of EU law, the question which arises on this application as to whether an appeal under s. 22(8) of the 2015 Act also has suspensive effect, even though no such suspensive effect has been prescribed, depends in large part on the requirements of EU law.  The answer must also be informed and guided by the decision of the Supreme Court in P.N.S. and the subsequent decision in Seredych.  

 

94.            As for the requirements of EU law, no requirement for automatic suspensive effect pending the determination of an appeal against a refusal to consent to admit a subsequent application for consideration can be identified in the express terms of the Procedures Directive.  Specifically, Article 39 of the Procedures Directive in particular, does not require an appeal against summary rejection of a re-application to have suspensive effect.  That this is so was confirmed by the CJEU in Case C-239/14 Tall v. Centre public d'action sociale de Huy. 

 

95.            In Tall, the CJEU considered whether Article 39 of the Procedures Directive, read in the light of Article 47 of the Charter of the Fundamental Rights of the European Union (hereinafter "the Charter"), should be interpreted as precluding national legislation which does not confer suspensory effect upon an appeal brought against a decision not to further examine a subsequent application for asylum.  The Court found (at para. 49) that Member States may provide that an appeal against a decision refusing to take a subsequent application for asylum into consideration is devoid of suspensory effect. 

 

96.            It was further noted in Tall that the remedy provided for under Article 39 must be provided in a manner consistent with Article 47 of the Charter and the principle of effective judicial protection. It was stated that Article 19(2) of the Charter provides that no one may be removed to a State where there is a serious risk he or she would be subjected to inhuman or degrading treatment.  The CJEU observed (at para. 54) that it is apparent from the case-law of the European Court of Human Rights that when a State decides to return a foreign national to a country where there are substantial grounds for believing that he will be exposed to a real risk of ill-treatment contrary to Article 3 ECHR, the right to an effective remedy provided for in Article 13 ECHR requires that a remedy enabling suspension of enforcement of the measure authorising removal should be available to that foreign national.  Nonetheless, the CJEU was satisfied (at para. 59) that the lack of a suspensory remedy against a decision not to further examine a subsequent application for asylum for the purposes of Article 32 of the Procedures Directive does not constitute a breach of a right to effective judicial protection as provided for in Article 39 of the Procedures Directive, where the Court measures enabling suspension of enforcement of the measure authorising removal were otherwise available to a foreign national who could demonstrate that there were substantial grounds for believing that he will be exposed to a real risk of ill-treatment contrary to Article 3 ECHR.

 

97.            The precise question was considered by the Supreme Court in P.N.S. (Cameroon) v. Minister for Justice and Equality where it was held that while an applicant for consent to make a subsequent application under s. 22 is entitled to remain in the State pending the determination at first instance by an IPO of his application, there is no entitlement to remain in the State pending the outcome of an appeal to IPAT.  In P.N.S, the Supreme Court referred to the key elements of the Procedures Directive, including that it recognises a distinction between a first instance process and an appellate process and that (at para. 71):

 

"The right to remain as provided for is anchored in and is a requirement only of the first instance process ...The right to make more than one application is recognised: a subsequent application to re-enter the process is permitted: whilst some procedural derogation from the basic assessment is provided for, nonetheless such an application is otherwise within the first instance process ...At appellate level Member State must provide appropriate procedures so as to ensure that an aggrieved party has a right to an effective remedy. This is provided for in Article 39 contained in Chapter V un er the heading "Appeals Procedure".

 

98.            The Supreme Court made it clear (at para. 75) that once a determining authority has made a decision at first instance, there is no right to remain in a Member State for the purpose of an appeal under the Procedures Directive. Moreover, McKechnie J. reinforced his view in respect of Mr. K.J.M's application to re-enter the asylum process, which was treated as a first-time application for the purpose of Article 7 of the Directive (at para. 85) as follows:

 

 

"Accordingly, his right to remain, under that Article of the Directive, as given effect to in domestic law, lasts until a decision is made by the designated body in accordance with the specified procedure. A "determining authority" means the body ''responsible for examining applications for asylum and competent to take decisions at first instance in such cases, subject to Annex I". In national law it seems clear to me that the IPO is that authority."

 

99.             Unambiguously, McKechnie J. concluded that (at para. 91):

 

"The result therefore is that the appellant no longer has a right to remain in this jurisdiction, either under the Directive or the 2015 Act after the IPO has made its decision."

 

100.                      The rationale for the distinction between the first instance decision and the decision on appeal identified in P.N.S. (Cameroon) clearly hinges on Article 7(1) of the Procedures Directive read together with Article 39.  Article 7 provides for a right to remain pending a first instance decision from a determining authority such as the IPO but that right ceases to have effect after the IPO recommendation has been made.  In accordance with the decision in P.N.S. (Cameroon), the right to remain does not continue to apply where a person seeking consent to make a subsequent application for international protection appeals the IPO recommendation to the IPAT.  Article 39(3)(a) expressly leaves the question of leave to remain pending the outcome of an appeal to the Member States, provided the possibility of protective measures is available.

 

101.                      On the basis of the foregoing, it is contended on behalf of the Minister that the Applicant's right to remain in the State arising from his application under s. 22 of the 2015 Act ceased on the 18^th of February, 2025, when the IPO issued its recommendation that the Minister should refuse to give consent to the Applicant to make a further application for international protection under s. 22 of the 2015 Act.  The Applicant does not accept this because they maintain that the Procedures Directive guarantees an "effective remedy".  The Applicant queries the benefit of the remedy of an appeal to IPAT where the subsequent applicant, ultimately successful on appeal, has already been deported by the time IPAT delivers its decision.

 

102.                      A question prompted by these decisions read together is what benefit an appeal under s. 22(8) of the 2015 Act has for a successful applicant who has been removed from the State on foot of an extant deportation order before the decision on appeal and how this is reconcilable with the right to an effective remedy.  On my reading of Article 7 of the Procedures Directive, where the conditions of admissibility of a subsequent application are satisfied, applicants should be permitted to remain while their application is considered.  This appears to be a substantive right, yet it is clear that there is no right to stay in the State while an appeal on a subsequent application is determined having regard to the terms of Articles 7 and 39 of the Procedures Directive.  There is therefore an apparent tension between an entitlement to stay in the State while an accepted subsequent application for protection is determined and the fact that because there is no right to remain pending appeal, the applicant may already be gone from the State.

 

103.                      In addressing this tension both parties refer to the decision in Seredych where the Supreme Court found that there is no express right to enter the State for the purposes of making an application for protection, save where the person is at the frontiers (at para. 67), in refusing relief in respect of a refusal to revoke the deportation order or to grant a travel visa to facilitate return to the State for the purpose of the subsequent protection application.  It is submitted on behalf of the Applicant, in reliance on Seredych, that where the protection seeker has been removed on foot of an extant deportation order before an appeal against a refusal to consent to the subsequent application has been determined, then the entitlement is emptied of any meaning because the successful appellant is not facilitated in returning to the State so that the application can be facilitated.

 

104.                      It is suggested on behalf of the Applicant that the decision in P.N.S. (Cameroon), while not wrong per se, would now be decided differently in the light of the decision in Seredych.  It is contended that it could not have been the statutory intention that one could be successful on appeal under s. 22(8) of the 2015 Act but unable to pursue the application because already removed from the State.  Accordingly, on the Applicant's case, suspensive effect should be implied or alternatively, to make the IPAT remedy effective, an order of the Court restraining deportation should be granted.  For his part, however, the Minister considers that having a right to have the application considered upon presentation at the frontiers of the State is not meaningless but is, in substance, the right preserved under the Directive and the full extent of the right transposed into Irish law. 

 

105.                      In responding to the Applicant's arguments, the Minister points out that in Seredych, Baker J. did not find any ambiguity with the conclusion reached by McKechnie J. in P.N.S that s. 22 of the 2015 does not provide for a right to remain in the State while an appeal is being determined before the IPAT.  Instead, Baker J. held in clear terms (at paras. 67-68):

 

"While the Procedures. Directive does identify in article 39(3), that an applicant has a right to remain to process an application, there is no express right to enter the State for the purposes of making an application, save where the person is at its frontiers. This court has held in P.NS. (Cameroon) v. Minister for Justice and Equality [2020] IESC 11 that the right to remain is limited and does not extend to a right to remain pending an appeal to IPAT.

If a person does not have a right to remain pending the outcome of an appeal, still less could such a person have a right to return to the State to do so."

The Minister expressly relies on Seredych and applying the foregoing to the present case, contends that the Applicant's right to remain in the State arising from his application under s. 22 of the 2015 Act ceased on the 18^th of February 2025 when the IPO issued its recommendation that the Minister should refuse to give consent to the Applicant to make a further application for international protection under s. 22.

 

106.                      The argument made that the appeal to IPAT cannot be considered an effective remedy absent automatic suspensive effect is addressed in Seredych and I do not accept that there is any basis for considering that P.N.S. (Cameroon) would now be decided differently having regard to the findings in Seredych.  It is expressly set out in Seredych that while the Procedures Directive provides for an effective remedy, it does not require that the subsequent applicant be permitted to remain pending the outcome of an appeal.  The Supreme Court unambiguously found that the right to a remedy contained in s. 22 and protected under EU law is the opportunity to bring a subsequent application for protection, the right to seek review of a decision refusing consent and for consideration of the right to remain pending a decision (at para. 78) with the possibility of applying for protective measures in circumstances of a demonstrated serious risk of a breach of fundamental rights. 

 

107.                      The Supreme Court in Seredych was satisfied that these rights are protected in the domestic legal order.  It was confirmed in Seredych, although not arising directly in that case, that an injunction pending an appeal to IPAT against a decision under s. 22(8) of the 2015 Act, may lie to restrain removal based on cogent evidence of risk (at para. 69).  In submissions on behalf of the Minister, the mirror requirement in the Procedures Directive appears at Article 39(3) where the State is required to introduce rules in discharge of international law obligations providing for the possibility of legal remedy or protective measures.  It is clear, therefore, that any right to remain pending the outcome of an appeal derives not from the fact that a subsequent application remains under consideration on appeal to the IPAT but rather on the basis of obligations binding on the State where the new circumstances identified are of such an order as would ground the grant of protective measures.

 

108.                      It seems to me to be now firmly established in Irish law by the decisions of the Supreme Court in P.N.S. (Cameroon) and Seredych that insofar as an injunction may be granted pending determination of an appeal against a refusal to grant consent to a subsequent international protection application, the power to grant such an injunction does not derive from any suspensive effect of an appeal under s. 22(8) of the 2015 Act.  This is because none has been provided for under the 2015 Act and none is required by the Procedures Directive.  Indeed, it is noteworthy that there is no plea in the Statement of Grounds to the effect that Irish law inadequately transposes the requirements of EU law or is otherwise in breach of those requirements. 

 

109.                      As clearly found in Seredych (at para. 90), the effect of s. 22 of the 2015 Act is to compel the Minister to follow the decision of IPAT and consent to the making by the applicant of an application for international protection.  Where that step is taken in accordance with his statutory duty, the Minister's role has been completed.  Procuring the Minister's consent in accordance with a decision of IPAT is the extent of the obligation on the State under the Procedures Directive.  I am bound to follow the well settled law in P.N.S and Seredych, which aligns with the position of the CJEU in Tall and which leaves no ambiguity as to whether the Applicant has a right to remain in the State pending the outcome of his appeal.

 

110.                      I have concluded in the light of the decisions of the Supreme Court in P.N.S. (Cameroon) and Seredych that the argument advanced in reliance on cases such as Luby v. McMahon [2003] 4 I.R. 133 fails because this is not a case in which it can properly be maintained that in the absence of suspensive effect, provision for a remedy by way of appeal to IPAT is devoid of purpose or effect.  Securing consent to a subsequent application meeting the conditions for eligibility on appeal to IPAT, not an entitlement to remain pending the final assessment of that application, has been found to be the desired purpose or effect of these provisions. 

 

111.                      Whilst s. 22 may be considered by some to lack teeth in terms of preserving an entitlement to remain in the State pending the outcome of an appeal, it is clear that a balance has been struck as a matter of deliberate policy by the European and Irish legislature whereby fundamental rights are safeguarded through strict conditioning of the circumstances in which an application may be refused and a requirement to make available legal remedies and protective measures but preventing resort to a subsequent application by those whose factual and legal position is virtually unchanged but who keep 'trying their luck'.

 

112.                      The obligation to grant injunctive relief in appropriate cases derives, as a matter of EU law (which is not dissimilar to the position under domestic constitutional law), therefore not from any suspensive effect of an appeal under s. 22(8) of the 2015 Act but from the function of the Court in providing an effective remedy where there is cogent evidence of risk of a breach of fundamental rights (in breach of the prohibition on non-refoulement or of rights protected under Article 4 of the Charter and/or Article 3 of the ECHR or some other identified international obligation binding on the State and capable of being given effect to before the Courts) arising from a forced removal to another jurisdiction before a final decision is made on a subsequent application by way of acknowledgment that the new material relied upon in the subsequent application may have the effect of entitling an applicant to re-admission to the protection process because of a genuine and serious protection need.

 

113.                      Thus, the right to protective measures under Article 39(3)(b) does not arise to render the appeal to the IPAT effective (because of the special circumstances of a subsequent application) but rather to guard against a breach of fundamental rights which the State is obliged to safeguard as a matter of international law (or indeed constitutional law) and which are established to be in real jeopardy on the evidence presented on the application. 

 

114.                      The lack of suspensive effect of a s. 22 appeal is similar to the well-established lack of suspensive effect of a s. 3(11) application and it is conceded, as it must be, that there is no obligation on the Minister to consider an application for revocation under s. 3(11) if there is no issue of refoulement.  It has long been the law that the lack of automatic suspensive effect in the context of an application under s. 3(11) does not render a remedy ineffective and the effectiveness of a remedy must be seen in the full context of the remedies available to the Applicant under the national scheme (see further A.D.S. (Ghana) v. Minister for Justice [2012] IEHC 73).

 

115.                      I might observe in this context that as a remedy is always available before our domestic courts in a case where there are substantial grounds for believing that there is a real risk of a breach of fundamental rights arising from a forced removal to another jurisdiction, the extent to which the existence of a pending appeal to IPAT on a subsequent protection application puts the Applicant in a more favourable position than any other failed asylum seeker who may be able to demonstrate a high level of risk of serious harm may be questionable, accepting that an evaluation of whether rights have been breached and what remedy is appropriate may entail consideration of whether the statutory process has been allowed to operate correctly.

      Entitlement to Injunctive Relief pending Determination of s. 22(8) Appeal

 

116.                      The Order made on the 27^th of February, 2025, restraining enforcement of the Deportation Order until the 14^th of March, 2025, recites that the application was made ex parte on foot of papers filed that day.  It appears, however, that Counsel for the Respondent was in Court and was heard in respect of the application having been alerted by letter earlier that day to the fact that an application was intended to be made. 

 

117.                      The Order as drawn is stated on its face to be for an interlocutory order limited in time to the 14^th of March, 2025, (a period of some two weeks).  The Applicant was directed by the terms of the order to serve the Minister through the Chief State Solicitors with a Notice of Motion returnable to the 14^th of March, 2025, together with the papers relied upon in moving the application.  Not surprisingly given that the proceedings were issued that day only, there was no affidavit evidence on behalf of the Minister before the Court.

 

118.                      It follows that the likely intention of the judge in granting the order in the terms reflected in the order as drawn was to afford the Minister an opportunity to be heard, if this was sought, in relation to whether the order should be continued on the 14^th of March, 2025, in circumstances where Opposition papers were also directed for that date and having particular regard to the concerns expressed in M.D. that where interim relief is granted in judicial review proceedings, that relief should be time limited. 

 

119.                      M.D. also reiterated that the onus lies with the moving party to apply for interlocutory relief on notice to the respondent thereby affording an opportunity to the respondent to be heard in respect of the entitlement for injunctive relief to be continued.  It seems to me therefore that the entitlement to interlocutory injunctive would necessarily fall to be considered afresh on application on behalf of the respondent requesting reconsideration in the light of legal submissions addressed to the better information by then before the court through the full participation of both parties given the urgent manner in which proceedings commenced and the initial order was granted. 

 

120.                      In circumstances where the proceedings came before me for full hearing and where the relief sought is an injunction by way of substantive relief which will be determined by the return date on the motion (14^th of March, 2025) coinciding with the end of the term of the temporary injunctive relief already granted, it is not necessary to dwell further on the term of the order granted on the 27^th of February, 2025 nor on the fact that the order is under appeal.  The test for substantive relief will not be the same as that for interim or interlocutory relief.  To obtain substantive relief an applicant has to demonstrate an entitlement to that relief, not simply that grant of such relief is arguable or convenient or preserves the status quo.  A substantive entitlement based on what is just must be demonstrated (B.S. (India) v. Minister for Justice [2019] IEHC 367, at para. 16).

 

121.                      In view of my findings above, the crux of this case now turns not so much on the existence of a pending appeal under s.22(8) of the 2015 Act but on whether real issues of refoulement or breach of Article 3 of the ECHR or Article 4 of the Charter have been demonstrated in the light of the new material relied upon to make a subsequent application for protection.  It is not in contention that the Minister must always be mindful of refoulement considerations when new material is presented suggesting a change in circumstances since the question was previously considered and it is well established that injunctive relief lies where substantiated grounds of a real risk of a serious breach of fundamental rights are demonstrated.

 

122.                      The Applicant claims that he is entitled to an injunction on the basis that he has presented cogent evidence of a risk of harm if he is returned to Georgia prior to the determination of his appeal to the IPAT in accordance with the test identified in Seredych (at para. 69).  He relies exclusively on the claims advanced on his application under s. 22 of the 2015 Act and the COI submitted in support of that application.  His entitlement to the injunctive relief claimed is disputed on behalf of the Minister having regard to the facts in evidence. 

 

123.                      In assessing the extent and nature of risk to the Applicant demonstrated on the evidence as I must do, it is of concern that while the Applicant has sworn an affidavit in these proceedings (on the 26^th of February, 2025), he has not deposed directly to the new factors he relies upon in advancing a claim for subsequent relief nor explained the circumstances in which he did not seek legal representation in respect of his previous protection application but engaged the services of an unnamed consultant who somehow misled him other than by confirming that statements and representations made on his behalf by his solicitor are correct.  Nor has he addressed the question of risk which he contends warrants the grant of injunctive relief pending the termination of his appeal to IPAT under s. 22(8) under the 2015 Act. 

 

124.                      While there are certain impediments to procuring affidavit evidence from the Applicant when he is custody, the fact remains that his solicitor has been in a position to consult with him and an affidavit has been placed before the court but this affidavit does not address any of the factual matters relied upon in this application other than by indirectly confirming statements made elsewhere on his behalf.  This is not satisfactory particularly in the light of the Applicant's history which suggests that he is not a reliable narrator.  For example, he told his legal representatives that he was not able to access the labour market because he had no permission and representations were made on his behalf in reliance on these instructions which it now transpires were false.  In my view the failure of the Applicant to verify basic facts in relation to the nature of the risk to which he says he is exposed and to explain his fears in support of this application is undermining of this application because his first-hand evidence is absent in circumstances where the onus is on him to persuade me that he is a person at real risk of significant harm.

 

125.                      The question for me remains whether the Applicant has met the applicable standard of proof in relation to a sufficiently serious risk in seeking injunctive relief notwithstanding some obvious evidential gaps on this application on the basis of the evidence that has been presented.  As it was not necessary to consider the application of the test in Seredych, no further guidance is provided in that decision as to the degree of cogency or the nature of the risk which must be established to ground the grant of relief.  In this regard, I was referred by counsel for the Minister to the decision in C-562/13 Centre public d'action sociale d'Ottignies-Louvain-la Neuve v. Abdida for a statement of the test to be met. 

 

126.                      In its decision in Abdida (paras. 50-53) the CJEU relied on the Article 3 jurisprudence of the ECHR finding that when a State decides to return a foreign national to a country where there are substantial grounds for believing he will be exposed to a real risk of ill-treatment contrary to Article 3, the right to an effective remedy provided for in Article 13 ECHR requires that a remedy enabling suspension of enforcement of the measure authorising removal should be available be available.  The CJEU construe the right to an effective remedy under Articles 19(2) and 47 of the Charter in similar terms.  This standard finds echoes in our own constitutional jurisprudence as to the powers of the Court to safeguard against breach of constitutional rights to be protected against serious harm and is the standard I propose to apply.

 

127.                      The Minister relies on the fact that the Applicant's application for international protection in the State was unsuccessful at each stage of that process noting that his claims before the IPO and the IPAT were each rejected on the basis that his asserted reasons for seeking international protection arising from his claimed membership of the Girchi opposition political party and his family's conflict with a criminal gang lacked credibility.  In particular, the IPAT rejected the claim that the Applicant was a member of the Girchi political party at all.  The only material fact accepted by the IPAT was as to the Applicant's nationality.  The Minister points to the fact that the IPAT's decision was not challenged by the Applicant.  Critically, the s.22 application is premised on exactly the same elements of the Applicant's claim - his assertion to be politically affiliated as a member or supporter of an opposition party in Georgia - which said elements were rejected by both the IPO and the IPAT on the basis that they lacked all due credibility.

 

128.                      The Minister contends that the Applicant failed to discharge the burden on him to satisfy the s. 22(4)(a) test.  It is pointed out that in order for the Applicant to obtain the consent of the Minister to make a subsequent application for international protection under s. 22(4)(a) 2015 Act, the Applicant was required to satisfy the IPO that since the determination of his previous application, new elements or findings have arisen or have been presented by him which make it significantly more likely that he will qualify for international protection, and he was, through no fault of his own, incapable of presenting those elements or findings for the purposes of his previous application. 

 

129.                      The Minister also relies on the fact that the IPO has carried out a preliminary examination at first instance of the Applicant's s.22 application and concluded by decision dated the 18^th of February, 2025, that the Minister should refuse to give consent to the Applicant to make a subsequent application for international protection. The Minister further relies on the designation of Georgia as a safe country of origin under s. 72 of the 2015 Act and the fact that there has been a very recent review of this designation during which process up to date COI was considered and it was decided to maintain the safe country of origin designation. 

 

 

130.                      In B.S. (India) v. Minister for Justice [2019] IEHC 367, Humphreys J. found that a relevant consideration in deciding whether to grant injunctive relief in a case where an application in reliance on EU treaty rights remained under consideration was not the mere fact of the application but the likelihood of success of the application.  Humphreys J. accepted that a case made might be so exceptionally strong and so likely to succeed that removal from the State could give rise to a disproportionate interference with rights.  On the same basis, it seems to me that the relative apparent merit of the s. 22(8) appeal may be a relevant consideration where the new material supports a conclusion a real risk has been demonstrated having regard to the claim made.  On the other hand, where little new of substance is advanced on the subsequent application to the claim for protection advanced, the fact that a previous application for international protection has been exhaustively considered and refused is also relevant.

 

131.                      Although the Applicant's entitlement to relief is not entirely dependent on his being able to persuade me that grounds exist to support an entitlement to international protection, the strength or otherwise of that application remains a significant factor as the basis for claiming injunctive relief and the basis for the subsequent application for international protection as advanced before me are not only linked but are essentially the same.  This means that in this case basis upon which the claim for protection was advanced in the first instance and the basis upon which it was rejected are important considerations because the very same protection need is relied upon to ground the application for injunctive relief before me.  To my mind the starting point of any assessment of risk then in this case must be that both the IPO and the IPAT concluded that the Applicant had not demonstrated a protection need and to consider whether this position has changed by the new material relied upon in the subsequent application. 

 

132.                      It is recalled that in this case the Applicant claimed to have only limited involvement in politics or indeed knowledge about politics.  At its height on the claim made the Applicant's period of participation spanned in or about four months.  This claim was previously rejected at all stages of the protection process principally because the basis advanced for the claim was found to be lacking in credibility with the result that it was not accepted that the Applicant had established a Convention nexus or a protection need on grounds of political opinion.  Unless these concerns have are addressed by the new material advanced in support of the s. 22 applicant and this appeal, his application for protective measures before me suffers from these same frailties because the claim for protection rests on the same asserted political involvement which involvement has thus far been rejected.

 

133.                      The "new" material relied upon by the Applicant is contained in and enclosed with the submissions furnished by the Applicants legal advisors on the 12^th of February, 2025, for the purpose of the s.22 application. It consists of COI material and reports which the Minister contends does not substantiate or in any way add any new element to the subjective claims made by the Applicant in the previous application and which were rejected as being vague and lacking credibility.  Furthermore, the Minister points out that much of the COI relied upon is not "new" and dates to early 2024 begging the question as to why the s. 22 application was made so late, it being suggested that the Applicant is engaging in brinkmanship, drip-feeding information in an endeavour to frustrate his removal from the State rather than in the pursuit of a genuine protection claim. 

 

134.                      In response to reliance on the earlier IPAT decision on behalf of the Minister, the Applicant maintains that were it not for procedural irregularities (lack of legal representation or translation services) undermining his first protection application, he could have presented a stronger case.  However, it is noted that he had the benefit of an interpreter during interview and had every opportunity to elaborate upon his claim during interview, expressing himself satisfied with the process at the end of the interview. 

 

135.                      Furthermore, in terms of the substance of the contention made that the Applicant might have made a better case with the benefit of legal advice, it is recalled that the Applicant was advised about the availability of legal representation for the purposes of the IPAT appeal (even if not before this), but did not elect to retain legal advice for whatever reason.  Even when he did retain legal advice from June, 2023, following the service of a deportation order upon him, he did not then contend that there was any infirmity in the process leading to the refusal of his application for international protection but chose to wait until the eve of enforcement of the Deportation Order and after he was taken into custody to make this complaint. 

 

136.                      The Applicant makes no attempt to address the questions arising from the claims made through his solicitor in the s. 22 application on affidavit in these proceedings in relation to what he knew or did not know and why he did not secure legal representation.   Indeed, it is unclear what it is suggested might have been done differently such that a different outcome might have been achieved, had he been legally represented.  The Applicant has not sought to establish his bona fides by giving direct evidence to substantiate a concern in relation to the previous decision-making process which he contends should have a bearing on whether consent is given to a subsequent application on his behalf at this late stage or should be relied upon to substantiate a basis for granting injunctive relief on this application.  All of these factors combine to weaken his claim that had he been properly legally represented, he could have advanced a stronger claim leading to different findings before IPAT.  Frankly, this seems to be a rather unlikely proposition in all the circumstances and is not one to which I can attach much substance.

 

137.                      Given the basis for rejection of his claim for protection by the IPO and IPAT which has not been impugned and which is advanced in a clearly reasoned fashion and while accepting that this is ultimately a matter for IPAT, it seems to me likely to be key to the ultimate success of his application under s. 22 that the new material advanced addresses the credibility issue regarding his membership of the Girchi party.  This appears to follow logically from the fact that credibility in relation to this aspect of his claim is what led to the refusal of his application in first instance and his political activity remains the basis for his claim protection need relied upon now in seeking injunctive relief. 

 

138.                      On the basis that I am correct that credibility is key primary factor for the Applicant in establishing a protection need, it is notable that the additional material relied upon now to support his subsequent application and to ground these proceedings is generic material that does not touch on the question of the Applicant's own political involvement and does not address this credibility issue previously identified. In circumstances where it is undoubtedly the case that credibility in relation to the basis advanced for the claim remains a primary hurdle which the Applicant must overcome if he is to have a prospect of success on any protection application advanced on the basis of his political involvement with the Girchi party, the absence of any additional evidence directed to the credibility of the Applicant's claim cannot be overlooked by me in the assessment of risk to him personally presented on this application.

 

139.                      While the Applicant relies on extensive COI material that reports on the current political situation in Georgia, I agree with the Minister that he has not offered any new elements with respect to the Applicant's subjective claim or any evidence that persuades me that it is significantly more likely that a second application for international protection might succeed on his behalf.  It bears repetition that the Applicant's political involvement was not established on his application for protection.  Nothing in the new material has any bearing on whether he was in fact politically involved or is of a nature which might change the decision already made that he was not.  In the circumstances, it is difficult to see why more up to date information in relation to political opposition in Georgia could affect the prospects of success of his protection application.  Afterall, his application was not rejected on the basis that political opposition is not suppressed in Georgia but rather on the basis that his participation in political opposition was not accepted at all. 

 

140.                      In considering the strength of the Applicant's application for protective measures in ease of his s. 22(8) appeal I cannot lose sight of the fact that for the purpose of that appeal Georgia is to be considered safe in accordance with s. 33 of the 2015 Act unless the applicant for protection submits "serious grounds" for considering the country not to be safe in his particular circumstances and in terms of his eligibility for international protection.  Accordingly, absent the submission of serious grounds referrable to the Applicant's particular circumstances, there is no basis in law for the IPAT to ever arrive at a different decision on a subsequent application warranting a consideration by IPAT of the availability of State Protection.

 

141.                      The fact that credibility is a fundamental issue going to the very root of his claim and that the Applicant must demonstrate serious grounds for contending that Georgia is not a safe country for him by reason of the particular circumstances of his case, does not detract completely from the fact that the Applicant relies on COI which he maintains supports his contention that there is a worsening human rights situation in Georgia with the result that a subsequent application for protection on his behalf is significantly more likely to be successful, if the content of that material is otherwise capable of supporting his claim and provide a basis for concluding that he is personally at real risk. 

 

142.                      Accordingly, even though the genuineness of the Applicant's subsequent application, made at the last minute and in the face of imminent deportation, has manifest weaknesses for the reasons stated above and is undoubtedly undermined by the fact that it was only made following the Applicant's arrest and detention for the purpose of giving effect to a deportation order long notified to him, and despite being unsupported by direct evidence from the Applicant as to material elements of his claim such that for a combination of reasons I have significant reservations as to the Applicant's bona fides on this application, I will nonetheless consider whether cogent evidence of risk sufficient to ground injunctive relief is otherwise demonstrated by the COI material advanced. 

 

143.                      The burden on the Applicant to demonstrate cogent evidence of risk sufficient to justify the making of an order restraining his deportation pending the conclusion of the s. 22 process is not insubstantial.  The evidence required to support the grant of relief must be capable of giving rise to serious grounds for believing that Georgia, a designated safe country of origin, is not safe for him. 

 

144.                      In this regard the Applicant's solicitor has submitted some more recent COI suggesting problems of police violence against protesters dating to November, 2024, and an OHCHR Report dating to December, 2024, reporting a pattern of repression and human rights violations in Georgia as the Government seeks to suppress spontaneous, popular protests in the country.  The continuing designation of Georgia as a safe country of origin under s. 72 of the 2015 Act, subject to regular review, is also relevant to the task of this Court in assessing whether there is sufficient evidence of risk to ground the exercise of a power to grant injunctive relief.  

 

145.                      The designation of Georgia as a safe country is relevant not least because in deciding to make such a designation order, the Minister must be satisfied that, on the basis of the legal situation, the application of the law within a democratic system and the general political circumstances, it can be shown that there is generally and consistently no persecution, no torture or inhuman or degrading treatment or punishment and no threat by reason of indiscriminate violence in situations of international or internal armed conflict in that country.  The Minister's decision to designate Georgia as a safe country of origin is not challenged in these proceedings. 

 

146.                      Not only did the Minister make an order designating Georgia a safe country of origin in 2018 but, more pertinently in view of a claimed change in circumstances, it is further apparent from the evidence adduced on behalf of the Minister that the designation of Georgia as a safe country has been reviewed, most recently on the 26^th of February, 2025, the day before the scheduled departure of the charter flight upon which the Applicant was scheduled for deportation.  As outlined above, following this most recent review of the designation of Georgia as a safe country, the Minister recommended that it remain on the safe country list.  A copy of the memorandum prepared for the review of the designation of Georgia as a safe country of origin for the purposes of the 2015 Act and the copious COI material referenced in it (four lever arch folders) are in evidence before me. 

 

147.                      As can be seen from the memorandum and the extensive material supporting it, the Minister has given detailed and measured consideration to the most relevant and up to date COI material in his deliberations and in the analysis undertaken.  For instance, and as more fully set out above, it is noted in the Memorandum that Georgian society is faced with significant challenges, particularly for minority and vulnerable groups but that in general, it observes the rights and freedoms laid down in the relevant human rights instruments to which it is a party (Review conclusion under (a)).

 

148.                      Where the Minister has manifestly given close and recent scrutiny to the designation of Georgia as a safe country of origin and where the material generated in this process is available in evidence before me, then it is appropriate that the fact of the designation and the material arrived at in maintaining the designation should inform my assessment of whether cogent evidence of risk of serious harm if returned to Georgia has been demonstrated having regard to the circumstances of the Applicant's particular case.  I therefore weigh the material adduced in evidence on behalf of the Minister together with the material the Applicant has adduced.  Together this amounts to a considerable body of material.

 

149.                      It is fair to say that the material before me suggests that certain groups in Georgian society experience particular difficulties such that Georgia is not by reason of its safe country of origin designation to be treated as safe for all people.  Indeed, from all of the material adduced it is clear that the human rights situation in Georgia is less than perfect.  Of course, identified human rights issues affecting some members of society is not sufficient to ground an injunction in the Applicant's case.  The test for injunctive relief is not met where the Applicant demonstrates any human rights issue in Georgia.  The apprehended breach of rights must reach a level of severity and must affect the Applicant personally.  Accordingly, he must demonstrate a real and substantial risk that he personally will be exposed a serious breach of his rights.

 

150.                      It seems to me from a consideration of all of the material before me that while the reports relied upon on by both sides substantiate issues relating to the human rights position in Georgia generally which are of course concerning, they do little to advance the core issue for me on this application which remains whether the concerns documented are such that they would trigger an entitlement as a matter of law to injunctive relief because of the risk of a breach of the Applicant's fundamental rights were he returned to Georgia due to his particular circumstances.  This is because none of the material supports the Applicant's personal claim to have been politically involved at all and therefore identifies him as a person who might have a particular risk.

 

151.                      In light of the basis for refusing the Applicant's protection application on his previous application, the nature and content of the information relating to more recent suppression of political opposition in Georgia and the basis now maintained for seeking to make a subsequent application, I cannot conclude that the Applicant has provided a sufficient basis for injunctive relief because there are serious grounds for considering Georgia to be unsafe for him because of particular features of his case.  Given that it was not accepted that he was politically involved at all, recent evidence in relation to the suppression of political opposition in Georgia cannot be treated as impacting upon his level of risk on political grounds where he has produced no additional evidence of his personal political involvement. 

 

152.                      Noting that he no longer appears to maintain a claim of risk arising from criminal elements in Georgian society and no new material is advanced in relation to this element of his initial claim, in my view he has not demonstrated that he is at real or substantial risk of a serious interference with fundamental rights which the State is obligated to protect were he returned .Georgia  As he does not meet the evidential threshold which applies to adequately ground the relief he seeks, his application for injunctive relief must fail.

 

CONCLUSION

 

153.                      As set out above, it is my view that the Applicant has not provided sufficiently cogent evidence of risk of harm to him personally were he to be deported to Georgia.  For the reasons set out, I refuse the relief sought.  I will hear the parties in respect of the form of order and any consequential matters at 2 p.m. on the 14^th of March, 2025.