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2026 IEHC 267

THE HIGH COURT JUDICIAL REVIEW [2026] IEHC 267 Record No. 2026 130 JR IN THE MATTER OF SECTION 5 OF THE ILLEGAL IMMIGRANTS (TRAFFICKING) ACT, 2000 BETWEEN G.T. APPLICANT AND AN INTERNATIONAL PROTECTION OFFICER AND THE MINISTER FOR JUSTICE, HOME AFFAIRS AND MIGRATION RESPONDENTS 1 AND THE INTERNATIONAL PROTECTION APPEALS TRIBUNAL NOTICE PARTY RULING of Ms. Justice Siobhán Phelan, delivered on the 30th day of April, 2026 INTRODUCTION

  1. By ex parte Order made on the 23rd of February, 2026, the Applicant was given leave to seek relief by way of judicial review having met a substantial grounds threshold to challenge both the s.39 decision dated the 23rd of October, 2025 and the s.49 decision dated the 21st of January, 2026, made by the International Protection Office (IPO). While seeking to proceed by way of judicial review, the Applicant also lodged an appeal to the International Protection Appeals Tribunal (IPAT) on a “without prejudice/precautionary basis”.
  2. In seeking leave to proceed by way of judicial review notwithstanding the existence of a remedy by way of appeal, the Applicant contended that an appeal on the papers (arising from the fact that Georgia is a designated safe country of origin) was not an effective, alternative remedy in this case because the first instance decisions of the IPO were fundamentally flawed.
  3. A stay of the said IPAT appeal was not ordered at ex parte leave stage, but the Applicant was given leave to seek a stay on notice should it become necessary and appropriate to do so.
  4. Since leave to bring these proceedings by way of judicial review was granted, the Notice Party has proceeded to schedule the Applicant’s appeal notwithstanding formal request in writing that the IPAT confirm that no further steps would be taken in respect of the appeal hearing until the judicial review proceedings were disposed of. In response, IPAT set out an understanding (citing HTK v. Minister for Justice [2016] 2 IEHC 43) that it would be unlawful to stay an appeal unless ordered by the High Court and confirmed its position that the appeal should proceed in the normal course. The appeal is now due to be heard on the 8th of May, 2026 and is scheduled to proceed virtually by way of oral hearing.
  5. On this application, the Applicant seeks an Order pursuant to Order 84 rule 20

(8)(
  1. b)of the Rules of the Superior Courts (RSC) staying the operation of the notice which was issued to the Applicant pursuant to s. 40 of the International Protection Act, 2015 (hereinafter “the 2015 Act”) by the Second Respondent on the 21st of January, 2026 and/or an Order enjoining the Notice Party from taking any further steps in respect of the Applicant’s appeal (to include hearing the appeal on the 8th of May, 2026, as it is scheduled to so
  2. do)pending the final determination of his judicial review proceedings. BACKGROUND 6. The Applicant and his wife fled Georgia, applying jointly for international protection in Ireland on the 24th of June, 2025. They were each interviewed consecutively by the same officer on the same day under s. 35 of the 2015 Act. Their claims were based on risks of persecution or serious harm arising from violence from the Applicant’s wife’s ex-husband. The basis for the claim in each case was very similar, arising from the same incidents of abuse in respect of events occurring post 2021 when they married. 7. By letter dated the 16th of January, 2026, the Applicant’s wife was notified that a recommendation that she be granted refugee status had been made by the IPO pursuant to s. 39
(3)(a) of the 2015 Act. She was informed that on foot of this recommendation the Minister was giving her a declaration under s. 47
(1)of the 2015 Act that she was a refugee. The notification received by the Applicant’s wife was confined to confirmation that a positive recommendation was being made as a s. 39 report does not issue in such instances. 8. On the 21st of January, 2026, the Applicant was advised that the IPO had recommended refusal of his application pursuant to s. 39
(3)(c) of the 2015 Act. He was furnished with his s. 39 Report and the s. 49 Examination of File. The letter also advised the Applicant of his right to appeal to the IPAT in accordance with s. 41
(1)of the 2015 3 Act. He was advised that as the s. 39 report contained a finding under s. 39
(4)of the 2015 Act, the time period for appeal was 10 working days. The letter stated: “any such appeal will be dealt with by the Tribunal without an oral hearing unless the Tribunal considers that it is in the interests of justice to hold an oral hearing.” He was also advised that following an appeal he would be notified of the outcome of the appeal and if the IPAT affirmed the IPO’s recommendation to refuse a protection declaration, he would then have a right to seek a review of the refusal of permission to remain in accordance with s. 49
(7)of the 2015 Act. He was advised that in seeking a review, he would have the opportunity to submit further relevant information and notify the Respondent of any change in circumstances, relevant to a decision on permission to remain. GROUNDS OF CHALLENGE
  1. In essence, the case made on behalf of the Applicant is that the IPO acted in an irrational or unreasoned way by treating the Applicant and his wife in a fundamentally different manner, granting status to the Applicant’s wife while refusing the Applicant. This was not understood by the Applicant because both cases were based on the same account of violence and threats of violence from the Applicant’s wife’s ex-husband.
  2. In recommending refusal of the Applicant’s claim, the IPO did so without reference in the Applicant’s case to the fact that he and his wife had presented a joint, family application on related facts. Furthermore, no reference at all was made to the Applicant wife’s relevant evidence in respect of these events, even though she was interviewed under s. 35 of the 2015 Act on the same day and by the same interviewer, in the assessment of the Applicant’s claim. There was, therefore, no consideration of whether his claim was corroborated by her account.
  3. It is claimed that the failure to have regard to all matters relevant to the application on the part of the IPO in the s. 39 report was in breach of s. 39
(2)(a) of the 2015 Act and 4 that the decision is unreasonable and/or inadequately reasoned in consequence of the failure to address the different outcome in the Applicant’s wife’s case and the reason for it. Although not pleaded, I was also referred during argument on behalf of the Applicant on this application to s.28 of the 2015 Act which imposes an obligation on the IPO to assess relevant elements of the application on an individual basis. 12. In addition, it is further claimed that the error is perpetuated in the s. 49 report which concluded that despite being married to a person whose application for refugee status was successful, that “no evidence of a relationship between the Applicant and [name of wife] has been submitted” and that a decision to refuse permission to remain did not constitute an interference in the right to respect for family life under Article 8
(1)of the Convention. ANALYSIS AND DECISION 13. It is submitted on behalf of the Applicant that a stay of the IPAT proceedings ought to be granted pursuant to Order 84 rule 20
(8)(
  1. b)of the RSC because a decision by the Notice Party would (
  2. i)render the Applicant's challenge to the s.39 report moot and (
  3. ii)trigger the necessity to seek a review under s.49
(7), notwithstanding a live judicial review challenge to the initial s.49 report. 14. The parties agree that the test to be applied when considering whether to grant a stay or an interlocutory injunction in the context of judicial review proceedings derives from Okunade v. Minister for Justice [2012] 3 IR 152; [2012] IESC 49, a case concerning an application for an injunction restraining deportation. The headline Okunade criteria summarized at para. 104 of the judgment are: “As to the overall test I am of the view, therefore, that in considering whether to grant a stay or an interlocutory injunction in the context of judicial review proceedings the court should apply the following considerations:(
  1. a)The court should first determine whether the applicant has established an arguable case; if not the application must be refused, but if so then; (
  2. b)The court should consider where the greatest risk of injustice would lie. But in doing so the court should:5 (
  3. i)Give all appropriate weight to the orderly implementation of measures which are prima facie valid; (
  4. ii)Give such weight as may be appropriate (if any) to any public interest in the orderly operation of the particular scheme in which the measure under challenge was made; and (iii) Give appropriate weight (if any) to any additional factors arising on the facts of the individual case which would heighten the risk to the public interest of the specific measure under challenge not being implemented pending resolution of the proceedings; but also (
  5. iv)Give all due weight to the consequences for the applicant of being required to comply with the measure under challenge in circumstances where that measure may be found to be unlawful. (
  6. c)In addition the court should, in those limited cases where it may be relevant, have regard to whether damages are available and would be an adequate remedy and also whether damages could be an adequate remedy arising from an undertaking as to damages. (
  7. d)In addition, and subject to the issues arising on the judicial review not involving detailed investigation of fact or complex questions of law, the court can place all due weight on the strength or weakness of the applicant's case.” 15. The Applicant further relies on the decision of the Court of Appeal in RS v. Chief International Protection Officer [2018] IECA 559 where the Court granted an injunction pending determination of proceedings holding: “The right to litigate is an important constitutional right …I consider that the constitutional right of RS to litigate his claims …outweighs the undoubted disruption that the granting of the stay/injunction will cause in the consideration of the balance of justice.” 16. Since Okunade and RS, the interconnected issues of the Court’s jurisdiction to grant a stay pending judicial review and the undesirability of the underlying statutory 6 processes going into ‘limbo’ have been further considered in MD v. Board of Management of a Secondary School [2024] IESC 11 and Wen Wei v Minister for Justice and the Commissioner of An Gard Siochana [2024] IESC 58. These decisions are relied on by the Respondents to underscore the presumptive validity of statutory decisions, even when subjected to challenge and the undesirable consequences of imposing an unjustified stay in response to the making of an application for judicial review. I am also specifically referred on behalf of the Respondents to the recognition in Okunade that (at para. 92): “the entitlement of those who are given statutory or other power and authority so as to conduct specific types of legally binding decision making or action taking is an important part of the structure of a legal order based on the rule of law.” 17. Central to the Respondents’ resistance to this application is the fact that since leave was granted in this case, two relevant and important decisions of the Supreme Court have been delivered in AB v. Chief International Protection Office & Ors. [2026] IESC 23 and Amariei v. Chief Appeals Officer & Ors. [2026] IESC 22. These judgments offer detailed guidance on when an applicant for international protection may seek judicial review of a decision of the IPO when a statutory appeal to the IPAT is also available. These decisions are relied upon on behalf of the Respondents to argue against the grant of a stay in this case, principally on the basis that the Applicant’s grounds of legal challenge have been undermined by the decisions but also having regard to balance of justice considerations which lean away from the grant of a stay when due regard is had to the overall immigration law scheme, specifically the availability of a full statutory appeal. 18. The Applicant points out that when the leave application was moved in this case, reliance was not placed on the proposition which finds expression in Stefan v. Minister for Justice [2001] 4 I.R. 203, [2001] IESC 92 but has been disavowed in AB that an applicant is entitled to two fair decisions (from the IPO and on appeal) but instead contended that there had been a fundamental denial of justice in the manner in which the IPO assessed the Applicant’s claim without any regard to the evidence of the 7 Applicant’s wife and the different outcome in her application. It is contended that leave was granted because substantial grounds for arguing that there had been a fundamental denial of justice had been demonstrated giving rise to an entitlement to a new decision from the IPO despite the availability of a non-exhausted remedy by way of statutory appeal. The Applicant maintained, therefore, that he came within the rare and exceptional category of cases in which the decisions in AB and Amariei allowed the prospect of proceeding by way of judicial review notwithstanding the existence of an appeal and the merits of the Applicant’s case are not affected by the new Supreme Court jurisprudence. 19. In response to the Applicant’s contention that the first limb of the Okunade case is met because the substantial grounds threshold as prescribed under s. 5 of the Illegal Immigrants (Trafficking) Act, 2000 was established to the Court’s satisfaction at the time when leave was granted, the Respondents place significant reliance on what is referred to as a “recent reformulation of the law” in AB and Amariei, relating to when leave may be given to challenge a decision of a first-instance decision-maker whilst an alternative remedy, which the Respondents maintain is eminently suitable to redress the matter complained of, is available. It is suggested that based on this recent reformulation it would be open to the Respondents to seek to set aside the order granting leave, in accordance with para. 105(
  8. ix)of the judgment in Amariei (Donnelly J.). It is not accepted on behalf of the Respondents, in view of this reformulation, that the Court should exercise discretionary powers to grant relief by way of judicial review in this case due to the existence of an adequate, alternative remedy. 20. The Respondents also contend that there is no risk of injustice in the event of the refusal of an interlocutory injunction to the Applicant across the range of possible outcomes. The Respondents posit that should it prove the case that the Applicant succeeds in his appeal, then no further litigation will be necessary as the Applicant will have secured his desired outcome. The Respondents further maintain that should the Applicant fail in his appeal for similar reasons to those which were operative at the IPO stage, then his application for judicial review could commence at that stage, remedies properly exhausted. On the other hand, if he fails following the IPAT hearing and the hearing does not effectively safeguard his rights within the process by reason of an identified error amenable to judicial review, he will still have a right of access to the Courts at the conclusion of his appeal. However, should IPAT refuse his application on legally unimpeachable grounds, the Respondents contend that this is the very purpose of that 8 body and the Respondents maintain that no ‘injustice’ arises from this eventuality either. 21. As for the challenge to the s. 49 decision, it is pointed out on behalf of the Respondents that it usually starts from the premise that the person is a failed asylum seeker whose application for international protection has been rejected. It is also routinely the case that the facts or findings made in the s. 49 report are heavily premised on the facts as found and the findings contained in the s. 39 decision. Given that the IPAT could, and often does, make different findings of fact on appeal, it is contended that the exigency of justice favours both the s. 39 and the s. 49 process proceeding to their conclusion, before contemplating judicial review. 22. While the Respondent accepts that the Applicant enjoys a constitutional right to litigate his grievance(
  9. s)before the Courts, it is contended that this is not coterminous with a right to halt any and all events outside the courtroom which have the potential to affect that litigation, particularly so where those events are specifically provided for by the legislature as remedies to the matters complained of and where their invocation will be known in advance to the party seeking judicial review. I am reminded by counsel for the Respondents that the whole purpose and scheme of the 2015 Act is to progress international protection applications in an orderly and timely manner. 23. With reference to the decision of the Court of Appeal in RS v. Chief International Protection Officer [2018] IECA 322 (and the related determination of the Supreme Court in the same case [RS v Chief International Protection Officer [2019] IESCDET 156]), upon which the Applicant relies, the Respondents contend that they precede AB and rely significantly on the rationale of the Stefan case, now caveated by the Supreme Court in its recent reformulation as “apt to mislead” insofar as it is cited as authority for the proposition that a fair appeal does not cure an unfair hearing, a proposition with which the Supreme Court in AB does not agree. 24. It is further submitted that RS falls to be distinguished because it involved a lead or ‘test’ case on a purely jurisdictional point, where a stay had necessarily been granted in the lead case such that the Court of Appeal found that, “all such litigants should remain similarly situated”. The Respondents contend that I should have regard to the fact that the present case does not display similar elements as relevant distinguishing features which justify a different decision in the circumstances of this case. 9 25. In AB, the Supreme Court reviewed the jurisprudence since the seminal decision in Stefan (which concerned the availability of a non-statutory, purely administrative remedy by way of appeal to the Appeals Authority), particularly in view of the established role of the Tribunal under the 2015 Act in carrying out full and ex nunc reviews of the decision of the IPO. This role includes obligations to examine precise and up to date information, operating as a court of first instance. The Supreme Court observed in this context (at para. 70) that the appellant’s concern that illegal decision making cannot be excused at first instance is a valid one but nonetheless stated that at the level of his individual claim, his remedy must be before the Tribunal. The Court added that this: “is inherent in the importance of considering the scheme for assessing international protection applications as a whole”. 26. While the principles recited at para. 72 of the judgment of the Supreme Court in AB reflect principles already discernible in the case law and in large part are not new, it seems to me that the treatment of the case-law and the terms in which new guidance is formulated make clear that occasions when judicial review will be permitted where an appeal to a first instance court or tribunal like the IPAT is available, will be exceptions. The Supreme Court has identified the types of issues which would qualify as exceptions in a new and more restrictive way. Such exceptions, in line with the dicta in AB, generally only arise in cases where the appeal will not permit the person aggrieved to adequately ventilate the basis for their complaint against the initial decision (see para. 72(v)(a)). Where there is an alternative remedy, the applicant for judicial review must satisfy the court at leave stage that they meet the applicable leave threshold (in this case substantial grounds) to establish that they come within one of the exceptions to the general rule that the alternative remedy must be exhausted prior to judicial review. 27. Applying the Okunade criteria to this case, I conclude with regard to the first limb of the test that while the Applicant was required to establish more than an arguable case at leave stage as this was an application determined on a substantial grounds threshold, there has been a shift in the law by reason of the reformulation of the test in AB and 10 Amariei and clarification of the earlier decision in Stefan since then, which means that the fact that leave was granted is not dispositive. While the then existing jurisprudence relating to the requirement to exhaust adequate alternative remedies was addressed in moving the leave application and the Court was satisfied to grant leave notwithstanding the availability of a remedy by way of an appeal on the papers before the IPAT having regard to the nature of the flaw identified in the two impugned decisions, the strength of the challenge in these proceedings must now be assessed through the prism of the recent clarifications by the Supreme Court in AB and Amariei and other developments. 28. Having carefully considered the recent decisions of the Supreme Court, I am satisfied that there is no doubt that the Applicant’s case is weaker because of the decisions in AB and Amariei. On an application of the principles clarified, restated and tightened in AB, a judge at leave stage should refuse leave if the alternative remedy of an appeal can vindicate an applicant’s position, it being only in rare cases that an applicant will be able to demonstrate that the exigencies of justice require the remedy of judicial review. Where the issue is one concerning a breach of fair procedures, what is to be assessed is the functioning/ability of the entire system to provide a process which guarantees an applicant the right to have their claim determined in accordance with natural and constitutional justice. The Supreme Court makes clear that it is only when the breach is such that there is a default of fundamental requirements, or some kind of fundamental denial of justice or a fundamental flaw in the decision-making process, that the appeal does not provide an adequate remedy. The Supreme Court elaborated that (at para. 92): “a complete denial of rights will amount to a fundamental denial of justice such that rule of law considerations will require, exceptional to the general rule, that judicial review will be available despite the existence of a statutory appeal.” 29. The Supreme Court added (at para. 93): 11 “…ignoring the requirement to have a personal interview carried out with the applicant or refusing to engage with or hear from the applicant as to any evidence or submissions at all would be a fundamental denial of justice. In that context, there would have been no provision at all of a functioning first instance system of international protection in accordance with law.” 30. In view of the clear exposition in judgments delivered in AB and Amariei as to what might constitute a fundamental denial of justice warranting a remedy in judicial review, it seems to me that a judge at leave stage is now required to take a more exacting approach when asked to grant leave to challenge an IPO decision requiring a breakdown in process of such a magnitude as a refusal to hear any evidence or consider any submissions. It could not be said in this case that there was such a refusal or failure to consider the Applicant’s application of this order of magnitude. Afterall, the Applicant’s own evidence was considered by the IPO and the refusal to recommend the grant of international protection was reasoned by reference to this evidence, the issue being the failure to have regard to and reason by reference to the evidence of his wife and her claim. 31. In addition to the reformulation or clarification of the law afforded by the decisions in AB and Amariei, there has also been a factual development which, although not emphasized in argument, in my view, bears on the strength of the Applicant’s case. When the leave application was moved, the Applicant, being from a designated safe country of origin, faced the prospect of an appeal on the papers. An appeal on the papers would have restricted the IPAT’s ability to consider the evidence of the Applicant’s wife in a manner which cured the alleged defect at first instance, particularly where no s. 39 report exists in respect of her claim in view of the positive decision made. 32. In the way in which events have unfolded, however, it is not now proposed that the appeal in this case would proceed on the papers only. Instead, a hybrid, remote videolink hearing has been scheduled for the 8th of May, 2026. This presumably means that the Applicant will have the opportunity to call his wife as a witness and to give corroborative evidence. She can be available to the IPAT in respect of any questions or inconsistencies which may arise in respect of her evidence and that of her husband’s. 12 Since an oral hearing is now proposed and in view of the reformulation of the legal test applicable legal test in AB and Amariei, I cannot now conclude that the first limb of the test in Okunade is met as I am no longer satisfied that the Applicant has an arguable case, still less a case which meets the substantial grounds threshold. In case I am wrong in this and recognizing that the threshold or arguability is not a high one, I consider that I should also address the second limb of the test. 33. In terms of the second limb and my consideration of where the greatest risk of injustice lies, I am obliged to have regard to the orderly implementation of measures which are prima facie valid and the public interest in the orderly operation of the immigration scheme in which the decisions under challenge were made. I must also have regard to the consequences for the Applicant of being required to proceed with his appeal in circumstances where this may have the effect of rendering his proceedings moot, thereby depriving him of a remedy in respect of the impugned decisions. 34. The fact that a finding of mootness would only follow from the IPAT reaching a decision in a manner which cures the identified defects has been persuasively pressed. Indeed, as the Applicant acknowledges, if the hearing goes ahead on the 8th of May, 2026, the Applicant may well succeed. While this would render the proceedings moot with implications for the sustainability of these proceedings, it cannot really be said that the Applicant would be prejudiced if either the defects have been remedied or his appeal has been successful. The position may be otherwise should the appeal be unsuccessful and the IPAT fail to properly and fairly address the basis for treating the Applicant and his wife differently in the light of the evidence before it. In such a scenario, however, the Applicant would not be left without a remedy and any such future decision could be amenable to challenge by way of judicial review where a remaining unfairness in the process is demonstrated. 35. I have considered carefully the fact that in RS the failure to attach sufficient weight to prejudice arising from a mootness finding which had the effect of depriving an applicant of the opportunity to litigate an issue, caused the Court of Appeal to set aside the refusal by the High Court to grant a stay. It seems to me that different considerations arise in this case such that the reasoning in RS does not compel a similar outcome on this application. RS was a case which raised a systemic jurisdictional issue also arising in many other cases. This systemic jurisdictional issue stood to be governed by the outcome of a test case which was proceeding to hearing with the 13 benefit of a stay in that case. If the Applicant’s proceedings were rendered moot through the refusal of a stay, then the applicant could not benefit from a successful outcome in the test case. In contrast, these proceedings do not raise a systemic jurisdictional issue and do stand to be affected by the outcome of any other case. 36. This case will be determined by reference to its own individual facts. Even if the appeal to the IPAT fails, the grounds for any refusal may be different from or clearer than those arising on the face of the impugned decision of the IPO, thereby curing the defect complained of in these proceedings following full consideration of the Applicant’s wife’s evidence. If the defects are not cured or other issues arise such that decision on appeal is unsustainable on grounds of a want of fairness in the consideration process, a remedy by way of judicial review could still lie at such future time. Accordingly, the Applicant retains the possibility of proceeding by way of judicial review if a fundamental defect in the process remains such that the decision is tainted for want of fair procedures, thereby retaining the right to litigate as safeguarded under the Constitution. 37. It seems to me that the factual position which now presents is materially different to that presenting at leave stage since it is confirmed that the Applicant will have access to a full hearing before the IPAT with the possibility to call corroborative evidence from his wife. This can occur in circumstances where they are both available to deal with any consistency issues which may arise as between their two accounts and the extent to which treating each case differently may be rationally justified in the reasoning for the IPAT’s decision. In consequence, the prejudice arising from a failure of proper consideration by the IPO may be redressed through the appeal process in a manner which could not have occurred on a paper only appeal. In the light of this factual development combined with the clarification in the law arising from the decisions in AB and Amariei, I am not satisfied that a proper balancing of the interests of justice requires the grant of a stay or injunctive relief in this case. 38. In my view, the concern that an appeal would not permit the Applicant to adequately ventilate the basis for his complaint against the initial decision which precipitated the application for leave and informed the grant of leave in this case, is largely addressed by the fact that the appeal is not confined to an appeal on the papers as had been apprehended when the leave application was moved. Furthermore, insofar as the s.49 decision is concerned, the Applicant may seek a review of the said decision informed 14 by the outcome of the appeal before IPAT, such further evidence as may be adduced and submissions directed to why the decision of the IPO at first instance is wrong. CONCLUSION 39. For the reasons given, I have concluded that the Applicant has not established an entitlement for an order staying or enjoining the Notice Party from taking any further steps in respect of the Applicant’s appeal. Accordingly, I must refuse this interlocutory application. I will hear the parties in respect of any matters arising. 15

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