Facts: Mr. A, from Georgia, and Ms. B, from Brazil, both separately applied for international protection in Ireland. It was recommended that their applications be refused under section 39(3)(b) of the International Protection Act 2015 and reports were issued to the Minister under section 40 of the 2015 Act recommending the refusal of their applications. Neither appellant brought an appeal against the recommendations. After a number of months, the Minister accepted the recommendations that the applications be refused and, pursuant to section 47(5)(b) of the 2015 Act, the Minister refused to grant them international protection and later made orders for their deportation.
The appellants applied to extend the time for appeal of the section 39 recommendations to the International Protection Appeals Tribunal (IPAT). The IPAT refused to examine the applications for extension. The applicants then brought judicial review proceedings challenging this refusal. In the High Court, the IPAT decision was upheld and it was found that the two appellants were no longer deemed “applicants”, which is required for an application for an extension of time under regulation 4(5), International Protection Act 2015 (Procedures and Periods for Appeals) Regulations 2017. The appellants were granted permission to appeal directly to the Supreme Court.
Reasoning: MacMenamin J, delivering the judgment of the court, first examined the definition of an “applicant” in the legislation. It was recalled that under the Refugee Act 1996 and following the Supreme Court’s ruling in MARA ([2014] IESC 71), the definition of “applicant” was previously broadly defined. The 2015 Act sought to limit the definition to prevent persons from being applicants indefinitely. Section 2(2)(a)(ii) of the 2015 Act provides that a person shall cease to be an applicant on the date on which, under section 47(5), the
Minister refuses “both to give a refugee declaration and to give a subsidiary protection declaration to the person”. MacMenamin J. was not persuaded s.2(2) or s.47(5) of the 2015 Act were in breach of EU law.
MacMenamin J examined the preliminary issues of the case. First, he affirmed the contention of the respondents that the section 39(3) recommendation was superseded by the Minister’s refusal under section 47(5)(b). MacMenamin J secondly found there was no lacuna in the Act for this type of appeal, finding that section 77 identifies the relevant section for the appeal and the relevant time frame. Thirdly, MacMenamin J dismissed the contention of the respondents that the appellants were seeking to engage in a “collateral attack” on an earlier step in the proceedings that should have been challenged within the time prescribed.
MacMenamin J recalled that the decision letters issued by the IPAT to the appellants did not fully set out the reasons for non-acceptance of the appeal applications and s. 2(2) was not mentioned. Moreover, neither s. 2(2) nor s. 47(5)(b) contain any words regarding the timeframe in which the Minister may issue a decision. In addition, the appeal processes for applications under s. 21, which concerns inadmissible applications, and s. 22, which concerns subsequent applications made by a person, do not refer to an “applicant” and have provisions that allow for an extension of time. Furthermore, under the previous legislation, the appellants would have been able to apply for an extension of time.
Decision: It was held that although the provisions were not in themselves unconstitutional, the IPAT, in applying section 2(2) and section 47(5)(b) of the 2015 Act in conjunction with each other, applied them in a way that operated against the applicants and that was unlawful and incorrect. This created a bar that the appellants could not reach and had the effect of infringing their right to fair procedures.
Charleton J., although concurring with the ruling of MacMenamin J., found that the 2015 Act could not be found to be unconstitutional for different reasons. He held that where there is no clear restriction by the legislature on the Minister’s discretion to suspend an order made under section 47 (including to refuse both international protection and/or subsidiary protection), it is also within the Minister’s power to suspend a section 47 order allowing the appellants to seek an extension of time to appeal. Nonetheless, Charleton J. stated that the Minister was not required to overturn the order if the IPAT does not find that there are exceptional circumstances to extend the time to lodge an appeal.
