FOM v The Minister for Justice and Others and KE v The International Protection Appeals Tribunal and Others

• Jurisdiction: Ireland
• Court: Court of Appeal (Ireland)
• Judge: Mr. Justice Charles Meenan
• Judgment Date: 25 February 2025
• Neutral Citation: [2025] IECA 43
• Docket Number: Court of Appeal Record Number: 2024/144 Court of Appeal Record Number: 2024/145 High Court Record Number: 2023/640JR

In the Matter of Section Five of the Illegal Immigrants (Trafficking) Act 2000 (As Amended)

Between/

FOM

Applicant/Respondent

and

The Minister for Justice, Ireland and the Attorney General

Respondents/Appellants

Between/

KE

Applicant/Respondent

and

The International Protection Appeals Tribunal, The Minister for Justice, Ireland and the Attorney General

Respondents/Appellants

[2025] IECA 43

Whelan J.

Meenan J.

O'Moore J.

Court of Appeal Record Number: 2024/144

High Court Record Number: 2023/104 JR

Court of Appeal Record Number: 2024/145

High Court Record Number: 2023/640JR

THE COURT OF APPEAL

Civil

International protection – Judicial review – Mootness – Appellants appealing from decisions granting the respondents orders of certiorari – Whether the appeals were moot

Facts: The appellants, the International Protection Appeals Tribunal (the Tribunal), the Minister for Justice (the Minister), Ireland and the Attorney General, appealed to the Court of Appeal from a decision of the High Court (Phelan J) granting the first respondent: (1) an order of certiorari quashing the decision of the Minister made under s. 50A of the International Protection Act 2015; and (2) an order of certiorari quashing the return order made by the Minister under s. 51A requiring the first respondent to leave the State and return to the United Kingdom. The appellants also appealed the decision granting the second respondent the following reliefs: (1) orders of certiorari quashing the decisions of the Minister and the Tribunal made under s. 21(6) affirming the recommendation of the International Protection Office (IPO) that the second respondent’s application for international protection be deemed inadmissible; and (2) an order of certiorari quashing the decision of the Minister made under s. 21(11)(b) determining that the second respondent’s application for international protection be deemed inadmissible. The High Court also granted both respondents a declaration that the designation of the United Kingdom as a ‘safe third country’ pursuant to the International Protection Act 2015 (Safe Third Country) Order 2020 is contrary to Ireland’s obligations under EU law. The respondents lodged a notice of cross-appeal concerning, inter alia, the trial judge’s finding on the non-transposition of Council Directive 2005/85/EC, alleged breach of the principle of non-regression and alleged breach of data protection rights. The respondents submitted that the consequences of the amendments provided for in the Civil Law, Criminal Law and Superannuation (Miscellaneous Provisions) Act 2024 were that, even if the Minister was successful in the appeal and established that her decision and/or that of the Tribunal was lawful at the time they were made, those decisions were no longer of relevance as any further decisions concerning the respondents would have to be made in accordance with the said amendments; hence, there was no longer any live issue or controversy between the parties.

Held by Meenan J that the effect of those amendments was to afford additional protections to persons who may be the subject of a process that leads to the making of a “return order” than were available prior to the passing of the 2024 Act; both respondents were entitled to those additional protections. As no decisions had been taken by the IPO, the Tribunal or the Minister concerning the respondents under the new statutory provisions, he held that it must follow that there was no longer a controversy between the parties. Thus, he held that even a decision in favour of the Minister on the appeal would have no practical impact or effect, referring to the judgment of McKechnie J in Lofinmakin v Minister for Justice and Ors. [2013] 4 IR 274. By reason of the foregoing, Meenan J was satisfied that the appeals were moot.

Meenan J held that, the respondents having withdrawn their cross-appeal, both the appeals and the cross-appeal would be dismissed.

Appeals and cross-appeal dismissed.

NO REDACTION NEEDED

JUDGMENT of Mr. Justice Charles Meenan delivered on the 25 ^th day of February 2025

Introduction:-

1 . This is an appeal by the above-named appellants (The Minister) from a decision of the High Court (Phelan J.) granting FOM, the first named respondent:-

The second named respondent, KE, was granted the following reliefs:-

In addition, the High Court granted both respondents a declaration in the following terms:-

“That the designation of the United Kingdom as a ‘safe third country’ pursuant to the International Protection Act 2015 (Safe Third Country) Order 2020 S.I. 725/2020 is contrary to Ireland's obligations under EU law.”

• (1) An order of certiorari quashing the decision of the Minister made under s. 50A of the International Protection Act 2015 (the “Act of 2015”).

• (2) An order of certiorari quashing the return order made by the Minister under s. 51A of the 2015 Act dated 26 January 2023 requiring the first named applicant to leave the State and return to the United Kingdom.

• (1) An order of certiorari quashing the decision of the Minister dated 27 April 2023 made under s. 21(6) of the Act of 2015 affirming the recommendation of the International Protection Office (IPO) confirming the applicant's application for international protection be deemed inadmissible.

• (2) An order of certiorari quashing the decision of the International Protection Appeals Tribunal dated 27 April 2023 made under s. 21(6) of the Act of 2015 affirming the recommendation of the IPO that the applicant's application for international protection be deemed inadmissible.

• (3) An order of certiorari quashing the decision of the Minister made under s. 21(11)(b) of the Act of 2015 dated 10 May 2023 determining that the applicant's application for international protection be deemed inadmissible.

2 . In December 2020, contemporaneous with the withdrawal of the United Kingdom from the European Union, the Minister signed the International Protection (Safe Third Country) Order 2020 (S.I. No. 725 of 2020) (“The Safe Third Country Order”) into law, pursuant to s. 72A of the Act of 2015. The effect of this Order was to designate the United Kingdom of Great Britain and Northern Ireland as a safe country for the purposes of the Act of 2015. The concept of a “safe third country” refers to a country transited by an applicant for international protection which is considered safe for the provision of international protection.

3 . These proceedings concern the lawfulness of the designation of the UK as a “safe third country” in light of the then British government's “Rwanda policy”. This policy was the response of the government of the UK to the significant increase in the number of people crossing the English Channel in small boats to seek asylum in the UK. Under this policy, following agreement with the government of Rwanda, those arriving in the UK without permission, with some exceptions, would be relocated to Rwanda where their asylum claims would be determined. Those granted refugee status would remain in Rwanda and be ineligible to return to the UK.

4 . The Rwanda policy was the subject of judicial review proceedings in the UK. Ultimately, the Supreme Court of the United Kingdom upheld an earlier Court of Appeal (UK) decision that the Rwanda policy was unlawful. It is not necessary to set out in any detail the decision of the UK Supreme Court (see AAA & Ors v Secretary of State for the Home Department [2023] 1 WLR 4433; [2023] UKSC 42) but, relevant to these respondents, the court held that there were substantial grounds for believing that the removal of those seeking asylum in the UK to Rwanda would expose them to a real risk of ill treatment by reason of refoulement.

5 . In light of the Rwanda policy, the respondents challenged the lawfulness of the decisions made under the Act of 2015 to (i) refuse to admit them to the protection process in this jurisdiction and (ii) to return them to the UK for further processing of their claims for protection in reliance of the UK being designated a safe third country.

6 . Following the judgment of the High Court there were two significant events. Firstly, following a change of government in the UK, it was announced that the Rwanda policy would no longer be pursued. Secondly, and more significantly, the Civil Law, Criminal Law and Superannuation (Miscellaneous Provisions) Act 2024 (the Act of 2024) was enacted. This Act provided for, inter alia, the repeal of S.I 724 of 2020 which designated the UK as a safe third country and made a number of significant amendments to the Act of 2015. Counsel for the appellants accepted that these amendments, reflected or mirrored the judgment of the High Court but emphasised that this did not amount to an acceptance of the judgment. Further, no further order has been made designating the UK as a safe third country. Following these statutory amendments, the question of mootness clearly arises. In considering this question it is necessary to set out the relevant provisions of Irish legislation, the effects of the amendments set out in the Act of 2024 and the relevant provisions of EU law.

Irish statutory provisions:-

7 . I will set out the relevant provisions of the Act of 2015 prior to the amendments provided for in the Act of 2024.

Section 21 is titled “Inadmissible Application” and provides:-

“(1) A person may not make an application for international protection where the application is, under subsection (2), inadmissible.

(2) An application for international protection is inadmissible where one or more than one of the following circumstances applies in relation to the person who is the subject of the application

(a) —-

(b) —-

(c) the person arrived in the State from a safe third country that is, in accordance with subsection (17), a safe country for the person.

(3) Where an international protection officer is of the opinion that an application for...