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2026 IEHC 277

THE HIGH COURT JUDICIAL REVIEW [2026] IEHC 277 Record No. 2026 508 JR BETWEEN Y.D. APPLICANT AND THE INTERNATIONAL PROTECTION APPEALS TRIBUNAL, MINISTER FOR JUSTICE, HOME AFFAIRS AND MIGRATION, IRELAND AND THE ATTORNEY GENERAL RESPONDENTS RULING of Ms. Justice Siobhán Phelan, delivered on the 1st day of May, 2026 INTRODUCTION

  1. This is my ruling on an ex parte application for leave to proceed by way of judicial review. The Applicant is an Algerian national who wishes to challenge a decision of 1 the International Protection Appeals Tribunal (IPAT) refusing him consent to make a subsequent application for international protection under s. 22 of the International Protection Act 2015 (hereinafter “the 2015 Act”). BACKGROUND
  2. The Applicant first sought international protection in November, 2022, claiming fear of forced marriage by family members in Algeria. Prior to travelling to Ireland to make an application for international protection, the Applicant had lived in the UK from 2012–2022 without seeking protection there.
  3. The initial claim was refused by an International Protection Officer (IPO) in November,
  4. Core reasons for refusal set out in the report prepared under s. 39 of the 2015 Act included a finding that the Applicant’s account was vague, evasive and lacking in detail, particularly in relation to how the alleged forced marriage would be enforced, what concrete harm he feared if he refused and why the risk was imminent rather than speculative. These factors were identified as giving rise to credibility concerns which were central to the refusal.
  5. The IPO also had regard to the fact that the Applicant had failed to seek protection in the UK (2012–2022) despite having lived there for approximately ten years before travelling to Ireland. The IPO concluded that this prolonged stay without seeking protection was inconsistent with a genuine fear of forced marriage or persecution. It was considered that someone genuinely fleeing such a risk would reasonably be expected to seek asylum at the earliest opportunity.
  6. In addition, the IPO noted the Applicant’s ongoing contact with family in Algeria despite claiming fear of his family. The IPO considered that the Applicant, through his ongoing contact with family members, did not show evidence of estrangement, concealment, or protective behaviour consistent with his claim. The IPO considered this undermined the plausibility of his fear.
  7. The IPO’s initial refusal was further reasoned on the basis that it was considered there to be insufficient evidence of future risk. The IPO was not satisfied that the Applicant had demonstrated a real and forward-looking risk of persecution on return or that forced 2 marriage would be imposed against his will or that harm would rise to the threshold required for refugee status or subsidiary protection. The claim was assessed as speculative rather than well-founded.
  8. Nor did the IPO accept that the Algerian authorities were unwilling or unable to provide protection. Regard was had to the fact that the Applicant had not attempted to seek State protection and had not shown why it would be ineffective, further weakening the claim.
  9. Although the Applicant had a right to appeal against this initial refusal of his application for international protection status, he did not appeal against this decision in time. An application for an extension of time was refused. Thereafter, the Minister refused protection in May, 2025 and a deportation order issued in November,
  11. In January, 2026, the Applicant sought consent to make a subsequent application, relying on new alleged threats made by his uncle in Algeria in 2025–2026, including threats communicated to his brother, allegedly in February, 2025 and January,
  12. The threats alleged to have been made in February, 2025, had not previously been communicated to the Minister and reliance on these new threats was first raised after the service of the deportation order on the Applicant, many months after the February, 2025, alleged threats. Supporting documents included a sworn statement from his brother and a letter from an Algerian lawyer prepared immediately following alleged threats in January, 2026, comprise the new material relied upon in the s. 22 application.
  13. The sworn statement from the Applicant’s brother stated that his uncles threatened in February, 2025, to kill the Applicant if he did not return to Algeria and marry a cousin. An uncle repeated this threat in January, 2026, having heard, it is claimed, about the issuance of a deportation order against the Applicant.
  14. The two uncles named in the sworn statement of the Applicant’s brother submitted by the Applicant had not previously been specifically identified by the Applicant in his initial claim. In his initial claim, he had referred to a deceased uncle who had looked after his family when his father died. When his uncle died, it was the Applicant’s claim that the family had been looked after by his older brother. He maintained that pressure 3 to marry his cousin came from his family, identifying most particularly his mother and older brother but making no reference to any other uncles at that time.
  15. The legal statement purportedly issued by the Algerian lawyer was expressed to be drawn up on the basis of written and oral statements provided to him but he does not list those statements or provide copies, albeit he refers specifically to the sworn statement of the Applicant’s brother.
  16. The s. 22 application was also supported by legal submissions made by the Applicant’s Irish solicitor.
  17. In February, 2026, the IPO recommended refusal of consent, finding the new material was largely hearsay and the threats were vague and unsubstantiated. It was considered that the evidence did not significantly increase the likelihood of qualifying for international protection. In consequence, the IPO concluded that the s. 22 statutory test was not met. In its reasoned report, the IPO concluded that the new material would not support a different outcome on the protection claim because, even taken at its highest, it did not materially alter the weaknesses already identified in the original refusal, particularly on credibility and future risk.
  18. The IPO accepted that these documents were new in time but found that the brother’s statement was reported speech, not direct evidence of events experienced by the Applicant. Furthermore, the solicitor’s letter was based entirely on the brother’s account, rather than on independently established facts. The IPO treated the Algerian lawyer’s letter as hearsay, giving both documents limited probative value and concluding they did not amount to new elements capable of changing the outcome of the protection claim. The IPO explained that the new material did not significantly strengthen the Applicant’s credibility in circumstances where the Applicant’s original claim had been rejected as vague and lacking detail, inconsistent with his 10-year residence in the UK without seeking protection and undermined by his continued contact with family members despite claiming to fear them. The IPO considered that the new documents essentially repeated the same narrative already rejected and did not provide specific, detailed, or objectively verifiable information capable of overcoming the prior adverse credibility findings. As a result, the IPO concluded that the new 4 material did not meaningfully improve the Applicant’s credibility or neutralise the earlier concerns.
  19. The IPO stressed that s. 22 requires that new material make it significantly more likely that the applicant would qualify for protection but that the alleged threats were general and unspecific, there was no concrete evidence showing an imminent or unavoidable risk if the Applicant returned to Algeria and the claim still relied on assumptions about what family members might do, rather than demonstrating a real and probable future harm. In the circumstances, the IPO was not satisfied that the new material showed a higher likelihood of persecution or serious harm than had already been considered and rejected.
  20. Insofar as the Applicant claimed that his uncles had influence and that State protection in Algeria was unavailable, this was again rejected by the IPO because no attempt had been made to seek protection from Algerian authorities, the assertion of influence was vague and unsupported and the solicitor’s opinion on lack of protection was not backed by concrete examples or evidence. In the IPO’s view, the new material did not remedy the original failure to show that the Algerian state was unwilling or unable to offer protection.
  21. In short, applying the statutory test, the IPO accepted that the documents were new in date and related to new threats of forced marriage, despite the Applicant’s absence from Algeria since 2012, but concluded that they did not significantly increase the likelihood of the applicant qualifying for international protection and accordingly, they did not justify reopening a claim already rejected. On that basis, the IPO recommended refusal of consent to make a subsequent application.
  22. The Applicant appealed to the IPAT, arguing, inter alia, that the threats represented an escalation of risk related to forced marriage and honour-based harm and the s. 22 threshold test was applied too strictly by the IPO in refusing to recommend consent to a subsequent application. It was contended that insufficient weight was given to witness statements and country-of-origin context.
  23. On the 5th of March, 2026, the IPAT issued a written decision in which it affirmed the IPO’s refusal, holding that the Applicant’s original claim had serious credibility issues 5 and that spending 10 years in the UK without claiming protection undermined his account. The alleged new threats were considered vague, weak, and insufficient to overcome prior adverse credibility findings. Regard was also had to the fact that Algeria is a designated safe country, and no attempt was ever made in this case to seek State protection. IPAT found there was no realistic or meaningful possibility of success in a new application.
  24. Consequent upon the IPAT decision, consent to make a subsequent international protection application was refused. LEGAL FRAMEWORK
  25. 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 6 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: (
  1. a)the Tribunal shall make its decision without an oral hearing; (
  2. 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— (
  1. a)the notice of appeal, (
  2. b)all material furnished to the Tribunal by the Minister that is relevant to the recommendation concerned, (
  3. c)any observations made to the Tribunal by the Minister or the High Commissioner, and (
  4. 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— (
  1. a)affirm the recommendation of the international protection officer, or (
  2. 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 7 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)— (
  1. 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 (
  2. 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.” 23. As more fully set out in G.T. v IPAT & Anor. [2025] IEHC 154, 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. 24. As recognised in G.T. (at para. 53), 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)). Article 34 of the Procedures Directive is also relevant as it is addressed to procedural rules governing the assessment process. In material part, Article 34 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. 8 PROCEEDINGS 25. The within judicial review proceedings arise from the IPAT refusal of consent to make a subsequent application under s. 22 of the 2015 Act. Papers were filed in the Central Office on the 14th of April, 2026, outside the 28 days’ time limit fixed under s. 5
(2)of the Illegal Immigrants Trafficking Act, 2000 (as amended). The leave application came before me ex parte on the 27th of April,
  1. APPLICABLE TEST ON LEAVE APPLICATION
  2. The Applicant seeks an order quashing the decision of the IPAT made under s. 22 of the 2015 Act. This decision is subject to s. 5 of the Illegal Immigrants (Trafficking) Act, 2000 (hereinafter “the 2000 Act”) which under s. 5
(2)specifies that leave shall not be granted “unless the High Court is satisfied that there are substantial grounds for contending that the decision is invalid or ought to be quashed.”
  1. The substantial grounds test for leave which applies by virtue of s. 5 of the 2000 Act, was set out in McNamara v. An Bord Pleanála [1995] 2 ILRM 125 and approved in In Re Illegal Immigrants (Trafficking) Bill 1999 [2000] 2 IR 360 at 395, where the word “substantial” was interpreted as being equivalent to “reasonable”, “arguable”, and “weighty” and the Court held that such grounds must not be “trivial or tenuous”.
  2. To meet the test, the Applicant must identify facts upon which a reasonable or weighty claim may be made that the decision sought to be impugned is unlawful on stateable legal ground. To grant leave based on this now well-established test, I must be satisfied that the Applicant has identified facts upon which a reasonable or weighty claim may be made that the decision sought to be impugned is unlawful on stateable legal grounds. The grounds must not be “trivial or tenuous”. ANALYSIS AND DECISION
  3. Great care is taken in the IPAT decision in this case to set out the legal test applicable to a s. 22 application. In its decision, the IPAT stated at paras 1.12-1.14 that: 9 “The Tribunal must assess the new elements in the context of what has previously been submitted and found in the claim. However, the assessment is not a reassessment of the chances of success of the total claim, nor is it confined solely to the new matters, but rather it is concerned with the impact that the new matter has in the context of the claim already made. Thus, where a claim was previously rejected as not being credible, the new matters must be such as to make it significantly more likely that those findings would be overturned. The Appellant must also show that the new matters make it significantly more likely that they will now meet all the criteria for refugee status or subsidiary protection such as a nexus, a future risk, the objectively well foundedness of their application, the lack of state protection or internal protection alternatives or (in the case of designated safe country) that they can show serious grounds to consider that the country is not safe for them. [1.13] The Tribunal is not concerned with theoretical, remote or marginal increases in the chances of success in a new claim, based on the new matters. While the test may not be particularly onerous and certainly does not require the Tribunal to be satisfied that the Appellant will, as a matter of probability, succeed in obtaining status, there must be a meaningful and substantive possibility that they will now succeed in light of the new matters. [1.14] Because of the foregoing, the Tribunal is not tasked with carrying out a credibility assessment per se, nor an assessment as to whether the Appellant can show that a different conclusion on one of the elements would be reached, but instead the Tribunal must carry out a “qualitative assessment”. This does not require a conclusive decision to the requisite standard for the purposes of a substantive appeal, but rather an assessment as to whether a reasonable International Protection Officer or Tribunal Member (as the case may be) could reasonably find that the new matters would made enough of a difference to the merits of the case that, notwithstanding the previous findings, there is now a realistic possibility of success.”
  4. No issue is taken on behalf of the Applicant with this assessment of the applicable legal test and counsel agrees that it is correctly stated. It is further accepted on behalf of the 10 Applicant that the IPAT correctly identified the applicable legal test when it stated in the curial part of its decision: “[3.2] The Tribunal must therefore carry out a qualitative analysis to ascertain if the new elements make it significantly more likely that he will succeed in his claim. This is not a determination on the claim per se, so much as an analysis of whether there is a significant and realistic possibility that, in light of new factors, he could be granted International Protection.”
  5. At the heart of the legal grounds advanced is the claim that having identified the correct test, the IPAT erred in its application of this test to such a significant degree as to deprive it of jurisdiction. In essence, it is argued that the new materials should have been assessed without regard to the conclusions already reached on his initial application. It is contended that the IPAT erred in assessing new material in the context of the previously discredited claim, treating the new evidence as insufficient unless it was assessed as being capable of meaningfully altering the credibility and risk analysis previously done.
  6. Even though there is a substantial body of caselaw addressed to the proper interpretation and application of s. 22 of the 2015 Act, the written submissions filed in support of this leave application did not identify any supporting legal authority for the proposition urged, despite the existence of a well-established jurisprudence in relation to the proper application of s.
  8. Relevant caselaw in this area includes B.L. v International Protection Appeals Tribunal & Ors [2021] IEHC 86 (referred to in the IPAT decision), F.P. v International Protection Appeals Tribunal [2022] IEHC 535 and G.T. v International Protection Appeals Tribunal (cited above).
  9. In B.L., the Court confirmed that s. 22 involves a preliminary, qualitative assessment, not a re-hearing of the protection claim. The question is whether the new elements make it “significantly more likely” that protection would be granted, not whether the applicant will succeed on the merits. The Court stressed that the IPAT must engage with genuinely 11 new and material evidence and that failure to do so may render a s. 22 decision irrational or unlawful.
  10. In F.P., the Court held that new material which does not materially affect prior credibility findings may lawfully be rejected under s.
  11. The Court found that applicants cannot rely on s. 22 to re-litigate previously rejected narratives without genuinely transformative evidence.
  12. In G.T., the Court was dealing with a situation where a s. 22 application was made in respect of a claim which 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. It was noted, at para. 138 of the judgment, that key to the ultimate success of the application under s. 22 would be whether the new material advanced addressed the credibility issue already identified, given the centrality of adverse credibility findings in the first refusal.
  13. It is clear from this caselaw that credibility deficits from prior claims remain highly relevant when assessing “significant likelihood” for the purpose of s.
  14. The caselaw demonstrates that s. 22 is a gatekeeping provision, not a second asylum hearing. The test is forward-looking and qualitative, not a merits decision (B.L.). New evidence must materially alter the protection analysis including as to credibility. Prior adverse credibility findings therefore remain highly relevant.
  15. In this case, the IPAT expressly refrained from deciding that the new claims advanced in support of the s. 22 application were not credible but, referring to the basis for the previous adverse credibility findings and noting that the evidence relied on of new threats occurred after a very prolonged absence from Algeria and after his uncle heard of the service of a deportation order, observed (at para. 3.3): “….it would require such a level of credulity on the part of a new deciding officer or Tribunal Member, as the case may be, that the Tribunal consider that 12 there is no more than theoretical possibility of this being accepted as establishing his credibility in the face of the other significant adverse credibility indicators.”
  16. The IPAT considered each of the two new documents in turn observing that the first was a statement from his brother. It described the statement as: “very vague and does not go much beyond restating the Appellant’s claim. The suggestion that the Appellant’s uncle is a man of influence is particularly vague and non-specific.”
  17. Regarding the fact that a lawyer in Algeria has reviewed the statement and expressed himself to be satisfied that it is consistent and credible, IPAT found this not to be: “meaningful evidence for the purposes of an international protection claim anymore than if the Appellant’s Legal Representatives were to submit that he was credible, it might be persuasive but it is not evidence”. It was added at paras. 3.4-3.5: “The lawyer’s claim that local protection is not available is also vague in that he doesn’t provide specifics as to why it is not available, and if anything is contrary to the COI and the fact that Algeria is now designated a safe country. Further, there was no attempt to seek state protection after these claimed threats and it is curious that this was not done and instead a lawyer sets out the claim. The Tribunal is not satisfied that there is a realistic possibility of these documents persuading anyone. Put another way, that he has some new documentary evidence in relation to a discredited claim does not significantly alter the dial in terms of credibility and if the documents and new claims cannot meaningfully outweigh the other 13 significant adverse credibility indicators in his claim, there is no reality to him succeeding in a subsequent application on these grounds.”
  18. In view of the careful reasoning of the IPAT in this case, the legal basis for the Applicant’s challenge is not easily understood. It must be recalled that the initial refusal was multi-factorial and supported by a range of distinct findings, not least the availability of State protection and the fact that the Applicant had spent 10 years in the UK without claiming protection there. The new documents were considered individually. There is no authority for the proposition that the IPAT is obliged to conduct a s. 22 analysis on the basis that statements contained in new documents are accepted at face value and without regard to their probative value in the context of their contents and the findings already made. Instead, it is clear from the caselaw that the IPAT is entitled to consider the relative probative value of any new documents, as it did in its reasoned decision in this case, in deciding whether the documents contained information which had the potential to give rise to a successful claim for international protection in the context of the consideration already given to a previous protection claim on similar grounds and the basis for rejecting it.
  19. It is clear from the decision of the IPAT that it engaged with the new material to carry out a qualitative assessment to determine if the new elements advanced made it significantly more likely that the Applicant would succeed in his claim for international protection. I am satisfied that the approach of the IPAT in this case is consistent with the case-law guiding the proper application of s.
  20. Specifically, I see no basis for concluding that the IPAT erred in law in its treatment of new but weak corroborative material and its reliance on prior credibility findings made regarding a claim of a fear of forced marriage and threats in connection with same.
  21. I am not satisfied that the Applicant has demonstrated substantial grounds for contending that the conclusion that the new material did not shift the claim beyond a theoretical possibility of success may be unsustainable based on an error in the application of what it is accepted is a correctly stated legal test. In my view, the contention that the IPAT deprived itself of jurisdiction through an erroneous application of the legal test set in s. 22 of the 2015 Act does not have any reasonable prospect of 14 success and does not get past the level of a tenuous argument advanced without support in identified legal principle or authority. CONCLUSION
  22. For the reasons set out above, I refuse this application for leave to challenge the refusal to consent to a s. 22 subsequent application in this case as the Applicant has not persuaded me that he meets the threshold for the grant of leave set out in s. 5
(2)of the 2000 Act. I am not satisfied that the Applicant has identified facts upon which a reasonable or weighty claim may be made that the decision sought to be impugned is unlawful on stateable legal grounds. 15

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