A v The International Protection Appeals Tribunal, The Minister for Justice and Equality, Ireland and The Attorney General

• Jurisdiction: Ireland
• Judge: Mr Justice Max Barrett
• Judgment Date: 19 January 2021
• Neutral Citation: [2021] IEHC 25
• Date: 19 January 2021
• Court: High Court
• Docket Number: [2019 No. 650 JR

In the Matter of Section 5 of the Illegal Immigrants (Trafficking) Act 2000 (As Amended) and in the Matter of the International Protection Act 2015

Between

(1) A

Applicant

and

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

Respondents

(2) B

Applicant

and

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

Respondents

[2021] IEHC 25

[2019 No. 650 JR;

2020 No. 119 JR]

THE HIGH COURT

JUDGMENT of Mr Justice Max Barrett delivered on 19th January 2021.

I. Mr A's Application

1 On 26/8/2019, Mr A, a Georgian national, made application under reg.4(5) of the International Protection Act 2015 (Procedures and Periods for Appeals) Regulations 2017 for an extension of the prescribed period for the bringing of an appeal to the IPAT against a recommendation made by the IPO under s.39 of the International Protection Act 2015. By the time of this application the relevant s.39 recommendation had been considered and acted on by a decision of the Minister under s.47 of the Act of 2015. On 27/8/2019, the IPAT wrote a reply letter, the key line of which was that “[T]he recommendation under s.39 has been superseded by the Minister's decision under s.47 such that an appellant no longer has a recommendation simpliciter under s.39 against which to appeal” [emphasis in original], i.e. the IPAT was not going to deal with the application because it would be pointless to do so as the Minister had made his decision under s.47 (with the result that any appeal against the recommendation would be moot/futile).

2 The within judicial review proceedings, in which certiorari and various other reliefs are sought, concern the letter of 27/8/2019 and raise three key questions, considered later below. However, a preliminary issue arises. That issue is this: an application under reg.4(5) falls to be made by an “ applicant”. But, by virtue of s.2(2) of the Act of 2015, one effect of the Minister's s.47 decision was that, by 26/8/2019, Mr A had ceased to be an “ applicant” and so was no longer eligible to make application under reg.4(5). That is a complete answer to any complaint that Mr A makes regarding his reg.4(5) application: he was ineligible to make that application and has no grounds for complaint. The court respectfully does not see how it can correctly be contended, by reference to Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection, Arts. 2 and 46, that the operation of the foregoing domestic provisions has the result that Mr A was denied a right to an effective remedy before a court/tribunal, or that the time limits or other rules considered in the within application are less than reasonable or render impossible or excessively difficult the exercise of a right to an effective remedy before a court/tribunal.

3 In passing, the court respectfully does not accept the proposition advanced for Mr A that as there is no express provision in the Act of 2015 stating that a s.39 recommendation is superseded by a s.47 decision, it follows that this supersession does not present. Three points might be made in this regard (1) there does not need to be such an express provision – the position is evident from a reading of the provisions of the Act; (2) what the applicant is asking the court to do in this regard is to ignore unambiguous statutory provisions and apply a contrary interpretation; (3) to permit the applicant to appeal a s.39 recommendation superseded by a later s.47 decision by the Minister would have the effect of allowing the reg.4(5) appeal procedure to be used to quash the Minister's refusal (and the later deportation order), rather than lawfully appeal a recommendation; this would be unlawful, ultra vires the provisions of the Act of 2015 and the Regulations of 2017 and run contrary to the legislative intent.

4 Three key questions were contended by Mr A to arise in the within proceedings:

[1] Did the IPAT err in law insofar as it failed [if it failed] to apply the actual test prescribed by reg.4(5) of the International Protection Act 2015 (Procedures and Periods for Appeals) Regulations 2017? [2] Did the IPAT err by failing correctly to apply reg.4(5)? The court's answer to each of Questions [1] and [2] is ‘no’, for the reason that the IPAT never applied reg.4(5). It refused to proceed with the application for an extension of time on the basis that at the time of the application the IPO's s.39 recommendation had been superseded by a s.47 decision by the Minister, making it pointless to proceed (as any appeal against the recommendation would then be moot/futile).

[3] Is reg.4(5) invalid? The court's answer to Question [3] is that this question does not arise for determination as reg.4(5) was not relied upon by the IPAT.

5 Mr A's application also fails by virtue of its being an impermissible collateral attack whereby his true objective is to re-set the clock so that he can retrospectively invoke a statutory appeal process which he failed to invoke within the requisite time period or prior to the Minister's s.47 decision. That is not permitted; see XX v. Minister for Justice and Equality [2019] IESC 59, paras. 23–31.

6 Some play was made by Mr A of the fact that (a) because of his move from his apartment in late-June 2019, he did not receive notification of the IPO's recommendation and (b) despite first presenting at the IPO on 31/ 5/2018, he did not apply for legal aid until 18/7/2019, was approved for legal aid on 21/8/2019 and had his first meeting with his current solicitor on 26/8/2019. There are a number of notable features to his evidence in this regard: (1) the more than one-year delay between Mr A's initial presentation at the IPO and his application for legal aid was Mr A's delay alone and occurred after he was advised of his eligibility to seek legal aid; (2) Mr A offers no reason as to how his understanding as to legal aid changed in summer 2019, leading to his making application for same on 18/7/2019; (3) there is a want of clarity on Mr A's part as to when he moved from the address that he had identified to the IPO; his second affidavit suggests it was in “ late June”, whatever exactly that means; (4) no reasonable explanation has been offered by Mr A as to how, despite living at the address which he identified to the IPO as late as “ late June”, he did not receive the recommendation sent/re-sent by the IPO; (5) no explanation has been provided as to how it was that Mr A, after moving from the address he provided to the IPO and returning to check his mail, happened on one attempted delivery notification but not the others. There is also a contemporaneous memorandum on the IPO's files that Mr A was contacted by phone on 8/ 5/2019 to confirm his address (which he did), the recommendation being re-issued to that address on the same day; Mr A maintains that this call was never made.

7 It is clear from the Supreme Court's decision in Re Illegal Immigrants (Trafficking) Bill 1999 [2000] 2 I.R. 360, at p. 395 that an asylum applicant is not a “ passive participant”. For Mr A to provide an address and fail adequately and/or routinely to monitor his post on a consistent basis flies in the face of s.16 of the Act of 2015 and the spirit of that enactment.

II. Ms B's Application

8 Not a lot of time was spent on Ms B's application as her case presents broadly the same issues as that of Mr A. She arrived in Ireland on 2/8/2017, presented at the IPO on 29/6/2018, and despite having been expressly advised as to her ability to seek free legal aid did not do so until late-2019. On 6/12/2019, Ms B made application under reg.4(5) of the Regulations of 2017 for an extension of the prescribed period for the bringing of an appeal to the IPAT of a recommendation made by the IPO under s.39 of the Act of 2015. By the time of this application the IPO's recommendation under s.39 had been considered and acted on by a decision of the Minister under s.47 of the Act of 2015. The key message in the IPAT's reply letter of 11/12/2019 was that “ the recommendation under s.39 has been superseded by the Minister's decision under s.47 such that…[the] applicant no longer has a recommendation simpliciter under s.39 against which to appeal” [emphasis in original], i.e. it was not going to deal with Ms B's application because it would be pointless to do so as the Minister had made his decision under s.47. As can be seen, Ms B's case raises much the same key issues as are at play in Mr A's case and must fail, mutatis mutandis, for the reasons identified at paras.2–7 above.

III. Conclusion

9 The court respectfully declines to grant any of the reliefs sought by either applicant in their notices of motion. The court, in the Appendix hereto, considers in still more detail the facts and issues presenting in the within applications. That Appendix and this and the preceding paragraphs together comprise the court's judgment in these proceedings.

10 Given all the foregoing it is not necessary for the court to consider such European Convention on Human Rights issues as were contended to present.

APPENDIX

1. MR A'S CASE

1. In this Part 1 of this Appendix, the court considers the case of a Georgian gentleman who is styled as ‘A’/'Mr A’ herein to preserve his anonymity. References in this Part 1 to the applicant are to Mr A.

A. Reliefs Sought

2. By notice of motion dated 15/10/2019, the applicant seeks the following reliefs:

• “1. An Order of Certiorari quashing the decision of the first named respondent dated the 27th August 2019 (the ‘Impugned Decision’) made pursuant to Regulation 4(5) of the International Protection Act 2015 (Procedures and Periods for Appeals) Regulations 2017 (S.I. No. 116 of 2017) and communicated to the Applicant on that date.

• 2. An...