N v International Protection Appeals Tribunal and Another

• Jurisdiction: Ireland
• Court: Court of Appeal (Ireland)
• Judge: Mr. Justice Allen
• Judgment Date: 16 March 2025
• Neutral Citation: [2026] IECA 39
• Docket Number: Appeal Number: 2025 302

Between/

N. (South Africa)

Applicant

and

The International Protection Appeals Tribunal

and

The Minister for Justice, Home Affairs and Migration

Respondents

[2026] IECA 39

The President

Binchy J.

Allen J.

Appeal Number: 2025 302

THE COURT OF APPEAL

Interlocutory injunction – Deportation – Judicial review – Applicant seeking an interlocutory injunction restraining his deportation – Whether there was no means by which the applicant personally could secure protection from further xenophobic attack

Facts: The applicant appealed to the Court of Appeal against the judgment and order of the High Court (O’Connor J) delivered on 27 November 2025 ([2025] IEHC 691) refusing a motion brought on behalf of the applicant for an interlocutory injunction restraining the second respondent, the Minister for Justice, Home Affairs and Migration, from taking steps to deport the applicant pending the determination of his judicial review proceedings. The applicant appealed against the judgment and order of the High Court on eight grounds. The applicant’s first, second and sixth grounds were linked. The first ground was that the judge did not - as required by Okunade v Minister for Justice [2012] 3 I.R. 152 - determine where the greatest risk of injustice lay. The second ground was that the judge failed to consider, assess and determine the real risk that the applicant, if returned, would be subjected to further acts of persecution. The sixth ground - which it seemed to Allen J was at the heart of the appeal - was that the judge erred in law in not considering the evidence submitted on behalf of the applicant to the effect that, despite the designation of South Africa as a safe country, there was no means by which he personally could secure protection from further xenophobic attack.

Held by Allen J that, in circumstances in which the High Court appeared to have misunderstood the applicant’s argument and a fortiori misstated the burden of proof, it was incumbent on the Court of Appeal to decide whether the applicant had made out a real risk of significant harm if he were to be deported. In Allen J’s view, the applicant had not. Allen J held that there was no evidence in support of the applicant’s professed fears which did not extend to a direct threat to his safety from the police. In Allen J’s view, there was no evidence in support of the assertion that the applicant’s child or her mother would be exposed to danger if he were to return to the house. Allen J found that there was no evidence that the applicant had considered his options if he were to be returned to South Africa. Allen J held that, on the case presented by the applicant, it was not open to him to seek to disaggregate what the first respondent, the International Protection Appeals Tribunal, found to be a well-founded fear of persecution from the availability to him of adequate state protection. Allen J found that the applicant’s professed fear that he would be exposed to a risk of significant harm was unsupported by the evidence. Allen J held that the case had not been made that in the event that effect were to be given to the deportation order, the applicant would be prejudiced in the conduct of his judicial review application. Allen J held that the tentative argument that any rehearing of the applicant’s appeal would be impeded had not been made out.

Allen J, albeit for different reasons to those given by the judge, dismissed the appeal and affirmed the order of the High Court refusing the relief sought by the notice of motion.

Appeal dismissed.

NO FURTHER REDACTION NEEDED

JUDGMENT of Mr. Justice Allen delivered on the 16 ^th day of March, 2025

Introduction

1 . This is an appeal by the applicant against the judgment and order of the High Court (O'Connor J.) delivered on 27 ^th November, 2025 ( [2025] IEHC 691) refusing a motion brought on behalf of the applicant for an interlocutory injunction restraining the second respondent (“the Minister”) from taking steps to deport the applicant pending the determination of his judicial review proceedings.

2 . The applicant came to Ireland from South Africa on 7 ^th September, 2022 and applied for international protection. On 2 ^nd February, 2024 the International Protection Office (“IPO”) recommended that his application be refused. The IPO found that the applicant's country of origin was a safe country of origin; that the applicant had not established a well-founded fear of persecution if returned to South Africa; and that he had not shown substantial grounds for believing that he would face a real risk of suffering serious harm if returned. On 8 ^th August, 2025 his appeal to the International Protection Appeals Tribunal (“the Tribunal”) was rejected. The Tribunal accepted that the applicant had suffered persecution for a convention reason and had a well-founded fear of persecution for a convention reason if he were to be returned to South Africa, but went on to find that adequate state protection was available to the applicant in his country of origin. Significantly, the Tribunal found that the applicant had failed to access the state protections that were available to him in South Africa.

3 . On 8 ^th September, 2025 the applicant filed an application for leave to apply to the High Court by way of judicial review for an order of certiorari quashing the decision of the Tribunal and leave was granted by Bradley J. on 20 ^th October, 2025. In the meantime, on 15 ^th October, 2025 the Minister had made a deportation order and by notice of motion issued on 12 ^th November, 2025 the applicant applied for an interlocutory injunction restraining the Minister from taking steps to deport him pending the determination of the judicial review proceedings.

4 . In short, the applicant's case was – and is – that if deported he would be exposed to a risk of violence, or worse.

Delay in filing opposition papers

5 . Having obtained leave on 20 ^th October, 2025, the applicant filed his substantive motion on 28 ^th October, 2025, which was initially returnable to 12 ^th November, 2025 and thereafter adjourned from time to time. It was spelled out in the affidavit filed in answer to the interlocutory application – if it was not perfectly clear beforehand – that the judicial review application would be opposed. By the time the appeal came on for hearing on 26 ^th January, 2026 the opposition papers had yet to be filed.

6 . At the hearing of the appeal there was a slightly sharp exchange between counsel as to the late filing of the opposition papers. Counsel for the applicant protested that they were long overdue – which they were. Counsel for the Minister countered that the applicant had acquiesced in the adjournment of the substantive application from time to time and had only on the previous Wednesday complained to the asylum list judge that they had not been filed. He made the point that the Minister had – quite exceptionally, he said, and only in the particular circumstances of this particular case – given an undertaking not to deport the applicant pending the hearing of the appeal. Upon complaint being made of the delay, the asylum list judge directed that the opposition papers be filed by 30 ^th January, 2026 and the matter was put into the list to fix dates on 20 ^th February, 2026.

7 . It seems to me that the rights and wrongs of the delay in the filing of the opposition papers does not go to the merits of the appeal. If the opposition papers should have been filed sooner than they were, it is difficult to understand why the applicant did not protest at the delay sooner than he did. In any event, the interlocutory application was dealt with in the High Court on the basis that it would be opposed and the appeal can be dealt with on the same basis.

The High Court application

8 . The motion before the High Court was grounded on a short affidavit of the applicant filed on 12 ^th November, 2025 in which he referred to the verifying affidavit which had been filed on his behalf with his statement grounds on 8 ^th September, 2025. The verifying affidavit was similarly short but the applicant exhibited two large bundles of exhibits, the first containing his application for international protection, the IPO report, his notice of appeal and written submissions to the Tribunal, a medico legal report and photographs, and the decision of the Tribunal; and the second the country of origin information that was before the Tribunal.

9 . The judgment under appeal shows that the book of papers filed in the High Court ran to 359 pages. If the index was anything like the index to the book of pleadings filed on the appeal, it was well short of what it should have been.

10 . The written submissions filed on behalf of the applicant in the High Court in support of the interlocutory motion – described as supplemental written submissions – ran to six pages, the great majority of which were devoted to what it must be said was a very clear exposition of the applicable principles. Those submissions did not address the evidence. The factual basis for the application was said to be that the Tribunal had found that the applicant had been the victim of two xenophobic attacks; that the applicant continued to maintain a claim of risk from his persecutors in South Africa; and that the applicant maintained that he could not seek state protection from the police in South Africa.

11 . In the substantive judicial review proceedings, the applicant seeks an order of certiorari quashing the decision of the Tribunal. Yet, on his application for an interlocutory injunction restraining his deportation, he seeks to rely on so much of the decision of the Tribunal as found that he had a well-founded fear of persecution, while disaggregating so much of it as found that there was adequate state protection available to him in South Africa: a country which has been designated by the Minister as a safe country pursuant...