The absence of a sworn statement in the grounding affidavit to judicial review proceedings as to the facts relied upon in the statement of grounds will not necessarily lead to the  proceedings being dismissed for failure to comply with the Rules of the Superior Courts, whether on the grounds of delay or otherwise. The court will consider the merits of the application before deciding whether or not the applicant should be entitled to swear an affidavit which remedies the error.

Section 2 of the ECHR Act 2003 applies to a “court”, which term does not include the Refugee Appeals Tribunal. The Tribunal is, however, bound by s. 3 of the ECHR Act 2003 and is obliged to perform its functions in a manner compatible with the State's obligations under the ECHR’s provisions. To qualify as a refugee, an asylum applicant must come within a specific definition within the terms of the Refugee Act 1996. Claims for refugee status do not address constitutional or ECHR rights, and unsuccessful applicants are left in exactly the same position with regard to them as they had been before their application was determined. There is no interference with any constitutional or ECHR rights as a result of a refusal to recommend refugee status

Nonetheless, rights available to asylum applicants under the Constitution and the ECHR are applicable to the manner in which protection decision-makers like the Refugee Appeals Tribunal carry out their functions, but do not arise in terms of making an assessment on the applicant’s entitlement to refugee status.

No provision of Community law requires protection decision-makers to apply the provisions of the ECHR when taking protection decisions, save that the right to an adequate remedy contained in the Charter of Fundamental Rights applies to the procedures whereby protection decisions are taken.