Court of Appeal dismisses Commission's appeal, holding that extreme poverty alone does not prove degradation incompatible with human dignity.

AN CHÚIRT ACHOMHAIRC THE COURT OF APPEAL

APPROVED – NO REDACTION NEEDED

Court of Appeal Record Number: 2024 259 High Court Record Number: 2023/1496JR Neutral Citation Number: [2025] IECA 156 Pilkington J. Hyland J. Collins J.

BETWEEN/

THE IRISH HUMAN RIGHTS AND EQUALITY COMMISSION

APPLICANT/RESPONDENT

- AND -

THE MINISTER FOR CHILDREN, EQUALITY, DISABILITY, INTEGRATION AND YOUTH, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS/APPELLANTS

JUDGMENT of Mr. Justice Anthony M. Collins delivered on the 30th day of July 2025

I. The High Court Proceedings

1. Publicly available figures from the International Protection Office (hereafter ‘IPO’) show that the number of persons seeking international protection in the State rose from 2,649 in 2021 to 13,651 in 2022 and remained at 13,277 in 2023. In January 2023, the Minister for Children, Equality, Disability, Integration and Youth (hereafter ‘the Minister’) announced that he was no longer in a position to offer accommodation to all new applicants for international protection who presented themselves to the IPO. On 26 January 2023, the Irish Human Rights and Equality Commission (hereafter ‘the Commission’) wrote to the Minister articulating its view that, as a consequence, Ireland was in clear breach of its legal obligations towards those persons. On the following day, the Commission issued a public statement in which it expressed its deep concern about the Minister’s announcement and called upon him to use all of the powers at his disposal to address the situation.

2. On 30 November 2023, the Commission again wrote to the Minister to express its deep concern about what it apprehended as his Department’s failure to comply with its duty to provide accommodation to applicants for international protection who presented themselves in the State for the first time. On 4 December 2023, the Minister announced that, notwithstanding intensive efforts on his behalf, due to the severe shortage of emergency accommodation the State was again not in a position to offer accommodation to all such persons. Applicants for international protection who were not offered accommodation would henceforth receive a temporary increase of €75 per week in the Daily Expense Allowance (hereafter ‘DEA’) paid to them, bringing that payment to €113.80 per week. Further correspondence ensued between the

Commission and the Minister, in which the former communicated its concerns as to the challenges facing individual applicants for international protection in securing accommodation; the inability of such persons to provide for their basic needs through the DEA, even when combined with the availability of supports from the Department of Social Protection, notably the Additional Needs Payments (hereafter ‘ANPs’); the significant delays and difficulties applicants for international protection faced in accessing State support; the reliance placed upon nongovernmental organisations (hereafter ‘NGOs’) that were not in a position to meet the basic needs of homeless applicants for international protection; a significantly increased risk to the safety of homeless applicants for international protection illustrated by a number of violent incidents, and difficult weather conditions.

3. Being dissatisfied with the Minister’s response, by letter dated 20 December 2023, the Commission confirmed that, in the exercise of its powers under s. 41 of the Irish Human Rights and Equality Commission Act 2014 (hereafter ‘the Act of 2014’), it would commence judicial review proceedings against the Minister. On the day following, the High Court (Hyland J.) granted the Commission leave to apply for eight reliefs by way of judicial review against the Minister, Ireland and the Attorney General (hereafter collectively referred to as ‘the respondents’). Those reliefs included declarations that the respondents’ failure to provide for the needs of newly arrived applicants for international protection by way of accommodation, shelter, food and/or basic hygiene facilities breached Arts. 1, 3, 4 & 7 of the Charter of Fundamental Rights of the European Union (hereafter ‘the Charter’), Arts. 3 & 8 of the European Convention of Human Rights (hereafter ‘ECHR’) and the Constitution of Ireland. For the reasons given at para. 29, below, the Commission did not pursue remedies with respect to the respondents’ compliance with the European Communities (Reception Conditions) Regulations 2018 (S.I. No. 230 of 2018, hereafter ‘the 2018 Regulations’) and/or Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013, laying down standards for the reception of applicants for international protection (recast) (OJEU L 180, p. 96, hereafter ‘Directive 2013/33’).

4. The Statement of Opposition filed on 11 April 2024 contested the Commission’s capacity to institute those proceedings by reference both to a want of sufficient interest and non-compliance with s. 41(1) of the Act of 2014. It admitted the Minister’s declaration of 4 December 2023 and the increase in the DEA paid to applicants for international protection who were not offered accommodation on presenting themselves to the IPO. The Statement of Opposition described the steps taken on the Minister’s behalf to identify those applicants for international protection who were vulnerable and to ensure that they were offered accommodation; to overcome obstacles to access payments and facilities; to address the phenomenon of individuals sleeping outdoors; and to provide temporary accommodation for those persons during periods of cold weather. The respondents pleaded that these steps complied with the 2018 Regulations and the overarching requirements of Directive 2013/33.

5. The Statement of Opposition admitted that, since 4 December 2023, Ireland was unable to offer accommodation to single male applicants for international protection. It nevertheless denied that it had failed and/or refused to provide those persons with material reception conditions sufficient to meet their basic needs. The Statement of Opposition further denied any breach of the rights asserted in the Statement of Grounds, including Art. 1 of the Charter. The respondents pleaded that they had provided different material reception conditions which, when considered in their entirety, delivered the basic needs of applicants for international protection in accordance with Regs. 4(5) and (6) of the 2018 Regulations.

II. The High Court Judgment

6. The application for judicial review ultimately came on for hearing before the High Court (Barry O’Donnell J.), who delivered judgment on

1 August 2024. Ruling on what he described as the preliminary issues regarding the Act of 2014, at para. 89 of his judgment O’Donnell J. was satisfied that the Commission was entitled to bring the proceedings in the exercise of its powers under s. 41 thereof; in such proceedings it was unnecessary to identify each member of the class of persons concerned so long as that class is capable of precise definition; the Commission was not obliged to obtain the consent of the members of a class of persons the subject of such proceedings, since only the Commission and the respondents were bound by any order made therein; the Commission can obtain relief relating to a breach of a provision of a foundational human right as defined in Part 3 of the Act of 2014; a breach of an enactment may constitute evidence of such a breach; actions brought in the exercise of the power conferred by s. 41 are subject to the same requirements as any other proceedings insofar as there must be a live dispute and the case is to be proved in the ordinary way.

7. The learned trial judge then described the legal backdrop to the substantive issues in the litigation. After identifying key provisions of Directive 2013/33 and of the 2018 Regulations he examined, in particular, the judgments of the Court of Justice of the European Union (hereafter ‘Court of Justice’) in Case C-79/13 Federaal agentschap voor de opvang van asielzoekers v. Selver Saciri & Ors., EU:C:2014:103 (hereafter

‘Saciri’) and in Case C-233/18 Zubair Haqbin v. Federaal agentschap voor de opvang van asielzoekers, EU:C:2019:956 (hereafter ‘Haqbin’). At para. 110 of the judgment under appeal he concluded that, in those judgments, the Court of Justice “…drew a clear connection between the Directive’s requirements and the obligations under the Charter”.

8. O’Donnell J. also referred to the High Court judgments in S.Y. (A minor) v. Minister for Children [2023] IEHC 187 (hereafter ‘S.Y.’) and in S.A. v. Minister for Children & Ors. and R.J. v. Minister for Children & Ors. [2023] IEHC 717 (hereafter ‘S.A.’). Paragraphs 113 to 122 of the judgment under appeal considered S.Y., in which the applicant had applied for international protection on 8 February 2023. He was informed that there was no accommodation available for him, in lieu of which he was given a voucher worth €28 and the address of a private charity. Between that date and 28 February 2023, the applicant slept rough in a variety of locations. The respondent accepted that he had failed to provide the applicant with the “material reception conditions” required by the 2018 Regulations. The High Court (Meenan J.) found that, by reason of the respondent’s failure, the applicant had been forced to live and sleep rough, beg for food and was deprived of basic hygiene conditions. He had also been exposed to personal attack and danger and subjected to humiliation. Meenan J. made declarations to the effect that the respondent’s failure to provide the applicant with “material reception conditions” pursuant to the 2018 Regulations was unlawful and that that failure breached his rights under Art. 1 of the Charter. At paras. 123 and 218 of his judgment, O’Donnell J. agreed with the analysis in S.A. and saw no reason why he ought not to follow it. He held that S.Y. clearly and correctly established, in the light of the judgments of the Court of Justice, that a failure to provide for the basic needs of an applicant for international protection constituted a breach of that person’s rights under Art. 1 of the Charter.

9. At para. 220 of the judgment under appeal, the learned trial judge asked himself whether he could be satisfied on the evidence that the basic needs of a class of persons had been met. In the following paragraph, he observed that, in order to show that the respondents had not met the basic needs of applicants for international protection who had not been offerred accommodation, the Commission had set out a series of general factual propositions on the availability of housing and services and a set of general factual propositions on the adequacy of the respondents’ response, with respect to both individual measures and their combined effects. Those general propositions were corroborated by the specific evidence of individual applicants for international protection who had engaged with the system. At para. 222 of the judgment, the learned trial judge held that he was satisfied that the combined effect of that evidence was to establish the Commission’s case on “a strong prima facie basis”. He characterised the respondents’ answer to that evidence as “nuanced and relatively fair”. The respondents did not challenge the contents of the affidavits of individual applicants for international protection. They accepted that, between early December 2023 and May 2024, a large number of persons in similar circumstances had not been offered accommodation. The respondents also accepted that they were unable to provide accommodation for every person reported to them as being homeless and sleeping outdoors. Paragraph 223 of the judgment under appeal held that, insofar as the respondents contested the proposition that the basic needs of unaccommodated applicants for international protection had not been met, that was based on a general contention that the State’s response had been adequate and an inference that many of those persons had been able to access accommodation. The High Court thus concluded that the respondents had not rebutted the Commission’s case, finding at para. 225 that “there was very little, if any, dispute about the core factual contentions.” Paragraph 230 of the judgment under appeal thus found that the Commission had proved the existence of a group or a class of 2,807 applicants for international protection who, between 4 December 2023 and 10 May 2024, had not been provided with an offer of accommodation, 1,715 of whom were awaiting such an offer as of 10 May 2024.

10. Paragraph 231 of the judgment under appeal found, as a matter of fact, that it was more likely than not that the class of applicants for international protection that had not been offered accommodation relied upon the State to provide for their basic needs. Paragraphs 232 to 240 thereof proceeded to consider whether the provision the State had made for those persons was adequate to provide for their basic needs. The High Court reached the conclusion that the increased DEA was inadequate to allow an applicant for international protection not offered accommodation to access basic housing from the private sector. Since Directive 2013/33 and the 2018 Regulations envisage that the DEA meets incidental personal expenditure, the additional €75 payment was meant to enable those persons to satisfy their basic needs. The respondents did not dispute the very real difficulties applicants for international protection without accommodation faced in accessing even basic hostel accommodation. O’Donnell J. therefore concluded that the financial assistance the respondents had provided to those persons for the purpose of obtaining accommodation was inadequate.

11. Paragraphs 241 to 243 of the judgment under appeal then addressed the issue as to whether the Commission had shown that many, if not all, of the applicants for international protection who had not been offered accommodation were likely to have been homeless. The affidavit evidence of the individual applicants for international protection was that they could occasionally access overnight accommodation through a variety of sources, notably by sleeping in places of worship or by staying with acquaintances or charitable strangers. All of the deponents had experienced periods during which they had to sleep outdoors. While that evidence was given by a small sample of the class of individuals at issue, the State had not realistically challenged that evidence. The learned trial judge asked how an applicant for international protection not offered accommodation could find shelter if he had not the means to pay for it. In his view, the respondents had not given a satisfactory answer to that question, which led him to hold that most of the applicants for international protection who had not been offered accommodation had been deprived of it in any form. He rejected an invitation to draw an inference that a person who was not positively identified as homeless could be considered to have accessed accommodation. The High Court thus formed the view that many applicants for international protection who had not been offered accommodation had lived outdoors for some period of time.

12. Paragraphs 244 to 251 of the judgment under appeal examined the adequacy, having regard to Art. 1 of the Charter, of the respondents’ response to the plight of persons who were described as “street homeless”. What the judgment described as “very limited evidence” was derived from two affidavits made by Mr. David Delaney, Assistant Secretary for the International Protection and Integration Division of the Department of Children, Equality, Disability, Integration and Youth, on 27 March and 8 May 2024, respectively. That evidence was to the effect that the

International Protection Accommodation Services (hereafter ‘IPAS’) prioritised the supply of accommodation to those persons that it was advised might be sleeping outdoors. Since 4 December 2023, IPAS had offered accommodation to 213 applicants for international protection through the vulnerability assessment triage process. As of 25 March 2024, NGOs had referred 541 potential “rough sleepers” to IPAS, of whom 404 had received an offer of accommodation. The High Court concluded that an appreciable number of applicants for international protection not offered accommodation had been forced to sleep outdoors, even where they had come to the attention of IPAS through the aforementioned triage system. The High Court did not accept it was reasonable to infer that the majority of applicants for international protection not offered accommodation had found it through other means.

13. Paragraphs 252 to 254 of the judgment under appeal held that basic needs go beyond housing to include food, clothing, and personal hygiene. Although the High Court accepted that State funded day services had endeavoured to provide an adequate level of assistance, such evidence as there was showed that those services had been under considerable strain and that not all needs could be accommodated. O’Donnell J. was thus satisfied that the Commission had proved that the range of services made available to the class of applicants for international protection not offered accommodation was inadequate to provide properly for their basic needs of housing, food, clothing and hygiene. While the learned trial judge accepted that, through a combination of the various State payments and access to day services, it might be possible for an applicant to meet some basic needs, that necessarily involved an unacceptable choice between food, clothing or hygiene. In respect of hygiene facilities, it was clear from the evidence that the State funded day services had been overwhelmed or were close to that state. The learned trial judge concluded that the members of the class of applicants for international protection not offered accommodation could not, as a result, access regular hygiene services in a dignified manner. The evidence of those applicants for international protection who made affidavits, together with that of a more general nature that the Commission adduced, established to the High Court’s satisfaction that the consequence of an inability to access basic needs, particularly housing and hygiene services, was that the class of applicants for international protection not offered accommodation were left in a deeply vulnerable and frightening position that undermined their human dignity. On 11 October 2024, the High Court accordingly made an order in the following terms:

A declaration that the respondents’ failure to provide for the basic needs of newly arrived international protection applicants between

4 December 2023 and 10 May 2024, whether by way of the provision of accommodation, shelter, food and basic hygiene facilities or otherwise, is in breach of that class of persons rights pursuant to Article 1 of the Charter of Fundamental Rights of the European Union.

III. The Appeal

14. By notice filed in the Court Registry on 15 November 2024, the respondents seek an order to allow the present appeal against the judgment and order of the High Court and to dismiss the application for the reliefs sought in the Statement of Grounds. That appeal was advanced under the following five headings:

- the interpretation and/or application of s. 41 of the Act of 2014;

- the existence of a freestanding breach of Art. 1 of the Charter and/or that non-compliance with Reg. 4 of the 2018 Regulations was sufficient to prove such a breach;

- the standard and the burden of proof that the High Court applied;

- the assessment of the available evidence with respect to street homelessness and other asserted deficiencies in the provision of material reception conditions for the defined class of persons; and

- a failure to have regard to relevant considerations, namely the ANPs made available to the defined class of persons and the express objective of Directive 2013/33 to limit the secondary movement of applicants for international protection within the European Union.

15. The respondents’ complaint as to the High Court’s refusal to refer questions of EU law for a preliminary ruling to the Court of Justice under Art. 267 TFEU was properly withdrawn at the hearing of the appeal.

a) Interpretation of s. 41(1) of the Act of 2014

16. The respondents submit that, properly construed, in proceedings instituted under s. 41(1) of the Act of 2014, the individual members of the “class of persons” to which it refers must be identified individually and must give their consent thereto. Should either of those propositions be correct, the proceedings are improperly constituted and should stand dismissed. The Commission relies upon the judgment of the High Court and emphasises that the text of s. 41(1) does not support either of the two propositions advanced.

17. After citing the judgments of Murray J. in Heather Hill Management Company CLG & McGoldrick v. An Bord Pleanála & Ors. [2022] IESC

43 and in A, B and C (A Minor suing by his next friend, A) v. Minister for Foreign Affairs and Trade [2023] IESC 10, the learned trial judge observed, at para. 28 of his judgment, that “in seeking to understand the proper meaning and scope of s. 41, the plain and ordinary meaning is central, but it must be considered in its proper context within the Act of

2014.” That approach to the interpretation of the sub-section is uncontroversial.

18. Section 41 of the Act of 2014 falls to be interpreted in the following legislative context. Section 9(1) establishes the Commission to perform the functions that the Act of 2014 confers upon it. By s. 9(2) thereof the Commission is to be independent in the performance of its functions. The functions in s. 10(1) include (a) to protect and promote human rights and equality and (e) to work towards the elimination of human rights abuses, discrimination and prohibited conduct. Section 10(2) confers certain additional functions on the Commission. By s. 10(2)(e) the Commission may apply for liberty to act as, and to act as, amicus curiae in proceedings before the Superior Courts that involve, or are concerned with, the human rights or equality rights of any person. Sub-section (f) confers a function to provide such practical assistance, including legal assistance, to persons in vindicating their rights as it sees fit in accordance with s. 40. Subsection (g) allows the Commission to institute, where it sees fit, proceedings under s. 41 of the Act of 2014 or under s. 19 of the Intoxicating Liquor Act 2003. By s. 10(2)(o) of the Act of 2014, the Commission may conduct inquiries under and in accordance with s. 35 thereof. Section 10(5) grants the Commission all such powers as are necessary or expedient for the performance of its functions.

19. Section 10(4) of the Act of 2014 provides that the Commission shall exercise its functions under Part 3 thereof, headed up “Enforcement and Compliance”, in a manner it considers most appropriate and proportionate in the circumstances. For the purposes of Part 3, s. 29 defines “human rights” as—

“(a) the rights, liberties and freedoms conferred on, or guaranteed to, persons by the Constitution,

(b) the rights, liberties or freedoms conferred on, or guaranteed to, persons by any agreement, treaty or convention to which the state is a party and which has been given the force of law in the state or by a provision of any such agreement, treaty or convention which has been given such force, and

(c) the rights, liberties and freedoms conferred on, or guaranteed to, persons by the convention provisions within the meaning of the European Convention on Human Rights Act 2003;”

20. Part 3 of the Act of 2014 adumbrates the actions that the Commission may take with a view to eliminating human rights abuses. They run from the provision of information to the public and the review of the operation of certain enactments (s. 30), to the adoption of codes of practice (s. 31), the service of substantive notices (ss. 33 and 34), the conduct of inquiries (s. 35), the service of compliance notices (ss. 36 to 39), the provision of legal and other assistance to persons involved in legal proceedings concerning law or practice relating to the protection of human rights that a person has instituted or wishes to institute (s. 40) and the institution of legal proceedings (s. 41).

21. It follows that, in charging the Commission with, inter alia, responsibility to promote human rights and to eliminate abuses, the Oireachtas has conferred, by what could be described as an ascending order of potency, a series of powers upon it with a view to it securing the enforcement of, and compliance with, those rights. I therefore agree with the observation at para. 49 of the judgment under appeal that the Oireachtas has provided the Commission with a range of mechanisms to ensure compliance with human rights obligations and a discretion to choose which mechanism to invoke in a given set of circumstances.

22. That statutory context informs my analysis of the text of s. 41(1) of the Act of 2014, which provides that:

“The Commission may institute proceedings in any court of competent jurisdiction for the purpose of obtaining relief of a declaratory or other nature in respect of any matter concerning the human rights of any person or class of persons.”

23. First, the plain or ordinary meaning of the words used in the subsection are sufficiently clear as to obviate any necessity to adopt a broad, or a narrow, approach to its interpretation. Contrary to what para. 37 of the judgment under appeal might imply, nothing in that provision indicates that it ought to be given a broad interpretation on the ground that vulnerable persons are often the victims of human rights breaches.

24. Second, s. 41(1) of the Act of 2014 confers a power on the Commission to institute proceedings in the discharge of its functions under that Act. Section 10(2)(g), which states that the Commission may institute such proceedings “where it sees fit”, supports that conclusion. The conferral of that power on the Commission has at least three consequences. First, the Commission is, by reference to s. 9(2), to act independently. When it initiates proceedings under s. 41(1), it does not do so on behalf of, or in concert with, any person or class of persons, nor does the Commission act in a representative capacity. The legislative intent thus appears to be to facilitate the Commission in its endeavours to promote and to enforce human rights. Second, s. 41(1) does not envisage persons or bodies other than the Commission taking part, or participating, in the proceedings so contemplated. Third, by reference to the principle of statutory interpretation that the legislature does not act in vain (see, for example, Cork Co. Co. v. Whillock [1993] 1 I.R. 231 at 238 per Egan J., nem. diss.), to give effect to the exercise of the power to institute proceedings, the Oireachtas must be taken to have vested the Commission with the requisite locus standi for that purpose. That last observation disposes of the argument that the case-law on standing, commenced by the seminal judgment in Cahill v. Sutton [1980] I.R. 269, applies to the Commission when it exercises the power that s. 41(1) confers upon it.

25. Third, the power so conferred is to institute proceedings in a court of competent jurisdiction. Where statute confers that power, it is to be exercised further to, and in compliance with, the practice and procedure that governs the proceedings so commenced, save where the legislation indicates a contrary intention, as in the case of locus standi mentioned in the previous paragraph: para. 32 of my judgment in E.C. v. Ireland & the Attorney General [2025] IECA 55 (nem. diss.) refers. Section 41(1) of the Act of 2014 therefore requires the Commission to conduct proceedings in the same manner as any litigant. For instance, as Counsel accepted in the course of the hearing of the appeal, in these proceedings the Commission was required to obtain leave of the High Court pursuant to R.S.C. Ord. 84, r. 20(1) within the time limits laid down in R.S.C. Ord. 84, r. 21(1). In determining any proceedings that the Commission may bring in the exercise of its powers under s. 41(1), a competent court must thus find facts, interpret the law and apply the latter to those facts in like manner in proceedings of a similar nature. It follows that the Commission is bound to meet the burdens and to satisfy the standards that the law requires for it to prove its case. There is nothing in s. 41(1) to show that the Oireachtas intended to inaugurate a new procedure that would interfere with, or deviate from, the application of the well-established principles, derived from the Constitution of Ireland and the common law, that underpin the conduct of civil litigation, including the Rules of the Superior Courts. Consequently, s. 41(1) neither confers a jurisdiction upon, nor invites, the

Courts to deliver advisory opinions. I therefore agree with the conclusion at para. 89 of the judgment under appeal that an action brought pursuant to s. 41(1) is subject to the same requirements as any other proceedings, including the existence of a live dispute and the presentation in public of proof necessary to support the claims being advanced.

26. Fourth, the words “in respect of any matter concerning” are key to understanding what the Oireachtas seeks to achieve through the enactment of s. 41(1) of the Act of 2014. The Commission may institute proceedings in its own name “in respect of any matter concerning” something that affects a person or a class of persons. The litigation that the sub-section contemplates thus engages matters that concern the human rights of the individual person or persons concerned. Section 41(1) envisages the Commission bringing proceedings in respect of those matters without it having to show that it is affected by them. It frees the Commission from the constraints the ius tertii rule imposes on parties that seek to rely on arguments not grounded upon their individual circumstances. In proceedings under s. 41(1), the Commission does not represent a class of persons in respect of a matter that concerns their human rights but rather agitates matters that concern the human rights of that class of persons. The persons the subject of that litigation are thus placed at one remove from the particular form of litigation the Oireachtas has given the Commission the power to institute.

27. It follows that since s. 41(1) of the Act of 2014 does not make such persons or classes of persons party to the proceedings that it envisages, the members of that class are neither bound by, nor can they rely upon, any judgment or order made in those proceedings. The s. 41(1) procedure is consequently not a form of class action but one - as the learned trial judge described at para. 78 of his judgment - in which the persons to which that provision refers are not parties to, but rather the subject of, the proceedings. Since those persons are not parties to the proceedings, there is no conceivable justification to require the Commission to obtain their consent to, or to allow themselves to be identified in the context of, their institution. That explains why s. 41(1) contains no words that even hint at the existence of such requirements. That the litigation the Commission initiates concerns the human rights of persons does not necessitate the involvement or engagement of those individuals in that litigation.

28. For these reasons, I dismiss the respondents’ objections that these proceedings must be instituted in a manner analogous to that envisaged by R.S.C. Ord. 15, r. 9. Nothing in the Act of 2014 indicates that proceedings under s. 41(1) are a form of representative action that must comply with the conditions and the requirements that govern such actions. In any event, the terms in which that rule is expressed leave it in no doubt that, in order to deploy the mechanism that it describes, all of the parties to the proceedings must have the same interest in one cause or matter. That evidently cannot be the case in proceedings under s. 41(1), where the Commission is the only party with the power to initiate them and to have a direct interest in their outcome. Any res judicata created as a consequence of litigation instituted pursuant to s. 41(1) operates as between the Commission and the party or parties against which it had proceeded. Under s. 40 of the Act of 2014 the Commission in any event retains the option to provide legal or other assistance to persons involved in legal proceedings concerning the law or practice of the protection of human rights that a person has instituted or seeks to institute. This interpretation of s. 41(1) precludes both of two undesirable possibilities the respondents canvassed in argument: that persons or members of a class of persons would be bound by a judgment delivered in proceedings under s. 41(1) or that such a judgment would be of a purely advisory character because it did not bind those persons.

29. Fifth, the “human rights” with respect to which the Commission may institute proceedings are defined in the terms set out at para. 19, above. These make it clear that the scope of litigation commenced further to s. 41 of the Act of 2014 is limited to allegations of breaches of human rights of a “foundational” character: see para. 88 of the High Court judgment. The parties to the appeal do not contest that finding. The Commission must thus show that the respondents breached a provision of that character, here Art. 1 of the Charter. A breach of the provisions of the 2018 Regulations or of Directive 2013/33 does not suffice for that purpose.

30. Sixth, for the Commission to exercise its powers under s. 41(1) of the Act of 2014 lawfully, proceedings must be in respect of a matter that concerns the human rights of a person or of a class of persons. Recourse to that section does not require that the Commission meet the three preconditions to conduct an inquiry (evidence of a serious violation of, or a systemic failure to comply with, human rights in respect of a person or a class of persons; a matter of grave public concern; being necessary and appropriate in the circumstances) that s. 35(1) thereof lays down. Since the Oireachtas affords the Commission a power to conduct inquiries in circumstances distinct from those in which it may commence proceedings under s. 41(1), the power that s. 35 confers has no bearing upon the exercise of that s. 41(1) creates. That conclusion is consistent with the observation that Part 3 of the Act of 2014 provides the Commission with a broad palette of options when it seeks to enforce and to ensure compliance with human rights.

31. Seventh, the respondents contend that, as a consequence of the reference in s. 41(1) of the Act of 2014 to “the human rights of any person”, the proceedings that it contemplates must engage the human rights of a particular person or class thereof. That submission appears to be correct in so far as it requires that the Commission furnish evidence of matters that concern the human rights of such persons with a view to obtaining the relief it seeks. It does not follow that those persons or classes must be named or identified and/or their consent obtained to enable the Commission to proceed under s. 41(1). In addition to the observation at para. 27, above, that the sub-section confers a power on the Commission that is unconstrained by such a requirement, that submission reads down the words “in respect of any matter concerning” that immediately precede “the human rights of any person”. As para. 26, above, observes, the provision empowers the Commission to litigate in respect of a matter that concerns the human rights of persons who thereby become the subjects of that litigation. That conclusion is reinforced by the fact that, as explained at paras. 24 and 27, above, in seeking relief in respect of matters concerning the human rights of persons by way of s. 41(1), the Commission does not and may not act as their representative.

32. Eighth, in the same vein, the respondents submit that use of the word “relief” in s.41(1) of the Act of 2014 means that the remedy the Commission seeks to obtain must in some way inure for the direct benefit of the persons whose human rights are concerned by the matters the Commission litigates. A “relief” is a term of art that denotes a remedy that a plaintiff or an applicant seeks to obtain by way of legal proceedings. It is often, but not always, equated to a “benefit” (see Murdoch & Hunt’s Encyclopaedia of Irish law (October 2024 issue) which defines “relief” as

“[t]he remedy which a plaintiff seeks or obtains in an action”). Since the sub-section unequivocally confers a power on it to institute proceedings, the word “relief” is directed to what the Commission, not the persons at a remove from that litigation, may obtain by way of a remedy from a court. That conclusion is fortified by reading the word “relief” in the context of the words “for the purpose of obtaining relief”, which is a clear reference to the Commission’s reasons for instituting legal proceedings.

33. Ninth, the words “any person or class of person” include any persons or group thereof (see Interpretation Act 2005, s. 18(a)). When initiating proceedings pursuant to s. 41 of the Act of 2014, the Commission may do so with regard to matters that concern the human rights of a single individual, a group or a number of persons, or a class of persons. Once it has made that choice, the Commission takes on the burden of adducing evidence of the matters that concern the human rights of that person, persons or class of persons in order to obtain the relief it seeks.

34. Tenth, the concept of a “class of person” to which s. 41(1) of the Act of 2014 refers necessarily requires the presence of a common element or ingredient, sometimes described as a common interest, that is capable of distinguishing the members of that class from all other persons for the purposes of that litigation: Prudential Assurance Co. Ltd. v. Newman Industries Ltd. [1981] Ch. 229 at 252 per Vinelott J., referenced at para. 1-11 of the Law Reform Commission’s Consultation Paper on Multi-party Litigation (Class Actions) (LRC CP 25-2003). Read in the context of litigation commenced by reference to s. 41(1), which speaks of matters concerning the human rights of a class of persons, the common element shared by the members of the class the Commission defines may not necessarily be limited to the matter that concerns their human rights.

Paragraph 12 of the judgment under appeal describes the class of persons defined in respect of a matter that concerns their human rights as those applicants for international protection who presented to the IPO between

4 December 2023 and 10 May 2024 and who did not receive an offer of accommodation notwithstanding any entitlement to do so by virtue of the 2018 Regulations. The proofs the Commission adduced to obtain the relief that it seeks in these proceedings must be directed to relevant matters that concern the human rights of that class of persons.

35. I therefore concur with the thrust of para. 75 of the High Court judgment: “[s]ection 41 provides for a novel and unusual form of action in which the Commission - an independent body with express functions to promote and seek to bring about compliance with human rights obligations in the state - has an express statutory entitlement to commence proceedings as applicant or plaintiff in which the relief sought relates to the rights of third parties.” These proceedings were instituted for the purpose of obtaining relief of a declaratory or other nature in respect of a matter concerning the human rights, as defined in s. 29 of the Act of 2014, of the class of persons that the Commission defined. They accordingly come within the intendment of s. 41(1) of the Act of 2014 and were properly before the High Court. This conclusion is, in substance, identical to that which para. 89 of the judgment under appeal arrived at.

b) Justiciability of Article 1 of the Charter

36. The respondents submit that the High Court could not have made the operative part of the order under appeal since Art. 1 of the Charter contains no identifiable right by reference to which a court could declare that a breach of that provision had occurred. The Commission joins issue with that submission. It appears from para. 8, above, that the trial judge impliedly accepted the justiciability of Art. 1 of the Charter, not least by his decision to follow the High Court judgments in S.Y. and S.A.

37. Title I of the Charter, entitled “Dignity”, consists of 5 articles, respectively headed up “Human Dignity”, “Right to Life”, “Right to the Integrity of the Person”, “Prohibition of Torture and Inhuman or Degrading Treatment or Punishment” and “Prohibition of Slavery and Forced Labour”. By Art. 1 thereof “Human dignity is inviolable. It must be respected and protected.”

38. Paragraph 70 of the judgment in Case C-377/98 Netherlands v. Council, EU:C:2001:523, states that:

“It is for the Court of Justice, in its review of the compatibility of acts of the institutions with the general principles of Community law, to ensure that the fundamental right to human dignity and integrity is observed.”

39. At para. 197 of his Opinion in that case, EU:C:2001:329, Jacobs AG observed:

“There can be no doubt in my view that the rights invoked by the Netherlands are indeed fundamental rights, respect for which must be ensured in the Community legal order. The right to human dignity is perhaps the most fundamental right of all, and is now expressed in Article 1 of the Charter of Fundamental Rights of the European Union, which states that human dignity is inviolable and must be respected and protected.”

40. Although these statements were uttered after the Charter’s solemn proclamation on 7 December 2000, it was not until the entry into force of the Treaty of Lisbon on 1 December 2009, almost nine years later, that Art. 6(1) TEU recognised that the Charter had the same legal value as the Treaties. It thus appears that, for at least a quarter of a century, the Court of Justice has recognised “the fundamental right to human dignity and integrity” as a general principle of what is now EU law. The original impact of that recognition appears to have been limited to the judicial review of the acts of the Community Institutions and, perhaps, the Member States when they implemented EU law. It is clear from almost all of the case-law of the Court of Justice cited in the course of these proceedings that this continues to be the case and that the provisions of Directive 2013/33, and by extension the 2018 Regulations, are to be read and applied in the light of that fundamental right.

41. The fundamental right to human dignity and integrity is now recognised through the medium of Art. 1 of the Charter, Art. 47 of which provides that “[e]veryone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal …”. The Union’s common values, as enunciated in Art. 2 TEU, include respect for human dignity. Respect for those common values requires that national legal systems provide effective protection for the “fundamental rights recognised by the Charter”, including Art. 1. Confirmation of this may be found at para. 30 of the recent judgment of the Court of Justice in Joined Cases C‑185/24 and C‑189/24, R.L. & Q.S. v. Bundesrepublik Deutschland – Tudmur, EU:C:2024:1036:

“It must be borne in mind that EU law is based on the fundamental premiss that each Member State shares with all the other Member States, and recognises that they share with it, a set of common values on which the European Union is founded, as stated in Article

2 TEU. That premiss implies and justifies the existence of mutual trust between the Member States that those values will be recognised, and therefore that the EU law that implements them will be respected, and that their national legal systems are capable of providing equivalent and effective protection of the fundamental rights recognised by the Charter, including Articles 1 and 4 of the Charter, which enshrine one of the fundamental values of the

European Union and its Member States, namely human dignity, which includes, inter alia, the prohibition of inhuman or degrading treatment (see, to that effect, judgments of 19 March 2019, Jawo, C‑163/17, EU:C:2019:218, para. 80, and of 29 February 2024, Staatssecretaris van justitie en veiligheid (Mutual trust in the event of transfer), C‑392/22, EU:C:2024:195, para. 43 and the case-law cited).”

42. The Court of Justice’s approach is consistent with the text of Art. 1 of the Charter. Whilst the provision describes human dignity as “inviolable”, and not as a “right”, such as in Art. 2(1) (life) or in Art. 3(1) (respect for physical and mental integrity), that description is immediately followed by the sentence: “It must be respected and protected.” The text of Art. 1 of the Charter thus imposes clear duties upon the legal persons to whom it is addressed not to violate human dignity (which could be considered a ‘negative’ duty) and to respect and to protect it (which is in the nature of a ‘positive’ duty). To whom is that duty owed? To all human beings, it appears. That in turn logically recognises a right in all human beings to have their dignity respected and protected and not violated. Article 47 of the Charter, which speaks of a right to an effective remedy for persons whose rights and freedoms are violated, must be read so as to encompass the right described in the previous sentence. By its Art. 51(1), the Charter is addressed “… to the Member States only when they are implementing Union law. They shall therefore respect the rights,… in accordance with their respective powers…”. The 2018 Regulations were made in the exercise of the powers that s. 3 of the European Communities Act 1972 confers on the minister responsible for giving effect to Directive 2013/33. It is common case in these proceedings that the 2018 Regulations transposed Directive 2013/33 into the law of Ireland. Since the respondents were administering the regime under the 2018 Regulations, it follows that, in the discharge of those functions, Art. 1 of the Charter obliges them to respect, to protect and not to violate, the human dignity of persons.

43. The respondents object that what Art. 1 of the Charter requires in and of itself is not identifiable in the same way as certain of the other rights in that document or those that the ECHR recognises. The ECHR contains no direct equivalent to Art. 1 of the Charter, Art. 3 thereof (“no one shall be subjected to torture or to inhuman or degrading treatment or punishment”) being closest to it, although that article corresponds to Art.

4 of the Charter (see Case C-163/17 Abubucarr Jawo v. Bundesrepublik Deutschland, EU:C:2019:218, (hereafter ‘Jawo’), para. 91). The Court of Justice does not yet appear to have declared that Art. 1 creates a freestanding right capable of being relied upon before a court. It has nevertheless described its content in terms that are clearly capable of facilitating the judicial scrutiny and application of the right as so described. In para. 46 of Haqbin, the Grand Chamber of the Court of Justice held that:

“With regard specifically to the requirement to ensure a dignified standard of living, it is apparent from recital 35 of Directive 2013/33 that the Directive seeks to ensure full respect for human dignity and to promote the application, inter alia, of Article 1 of the Charter of Fundamental Rights and has to be implemented accordingly. In that regard, respect for human dignity within the meaning of that article requires the person concerned not finding himself or herself in a situation of extreme material poverty that does not allow that person to meet his or her most basic needs such as a place to live, food, clothing and personal hygiene, and that undermines his or her physical or mental health or puts that person in a state of degradation incompatible with human dignity (see, to that effect, judgment of 19 March 2019, Jawo, C‑163/17, EU:C:2019:218, paragraph 92 and the case-law cited).

44. That passage represents well-established case-law. It lays down a legal test that a court of competent jurisdiction can apply to a given set of facts in order to identify an actionable breach of Art. 1 of the Charter. That test is derived from, but not identical to, that which the Court of Justice relies upon to establish the existence of a breach of Art. 4 of the Charter (in that context see, inter alia, judgments in Joined Cases C-297/17, C- 318/17, C-319/17 & C-438/17, Ibrahim & Others, EU:C:2019:219, para.

90 and Case C-517/17, Addis v. Bundesrepublik Deutschland, EU:C:2020:579, para. 51). Paragraph 93 of the Court of Justice’s judgment in Jawo, which relied upon the European Court of Human Rights’ (hereafter “ECtHR’) interpretation of Art. 3 ECHR in the latter’s judgment of 21 January 2011 in M.S.S. v. Belgium & Greece, CE:ECHR:2011:0121JUD003069609, (hereafter “M.S.S.”), emphasises the deliberate and conscious nature of that finding. The Court of Justice has accordingly imported into the test of an actionable breach of Art. 1 of the Charter elements of the test that the ECtHR applies to establish an infringement of Art. 3 ECHR. This is no surprise for two reasons. First, Art. 52.3 of the Charter provides that, insofar as it contains rights that correspond to those the ECHR guarantees, those rights should have the same meaning and scope. Second, the ECtHR’s case-law on Art. 3 ECHR recognises a three-tier hierarchy of proscribed treatment of which degrading treatment or punishment constitutes the third (see, inter alia, judgments of 18 January 1978 Ireland v. United Kingdom CE:ECHR:1978:0118JUD000531071, paras. 167 and 174, and of 28 July 1999 Selmouni v. France CE:ECHR:1999:0728JUD002580394, paras. 99 to 101).

45. By laying down an identifiable and stringent test for the identification of a breach of Art. 1 of the Charter in Haqbin, the Court of Justice makes a clear distinction between a breach of that provision and a failure by a Member State to fulfil its obligations under Directive 2013/33. The nature of the test to establish a breach of Art.1 of the Charter shows that the Court of Justice is conscious of the gravity of a finding that a Member State offends the fundamental value of human dignity, which ranks among the Union’s values and constitutes an inviolable fundamental human right. A party that seeks to prove a breach of Art. 1 of the Charter thus takes on the burden of demonstrating the presence of the elements of the test as a matter of fact. A failure to provide the minimum reception conditions that Directive 2013/33 mandates in and of itself does not suffice to discharge that burden. Perhaps of greater importance in the context of this litigation is that it follows from the test laid down in Haqbin that a finding that a person is in a situation of extreme material poverty by reason of which he or she cannot meet his or her most basic needs does not automatically give rise to the inference that a person’s health is thereby undermined or that s/he is in a state of degradation incompatible with human dignity. Both of these elements must be proved to establish the presence of a breach of Art.

1 of the Charter.

46. A review of the case-law of the Court of Justice upon which the Commission relied demonstrates that, whilst Directive 2013/33 seeks to promote the application of Art. 1 of the Charter and is to be interpreted in the light thereof, neither it nor its predecessor, Council Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the reception of asylum seekers (OJEC L 31, p.18, ‘Directive 2003/9’), were adopted in order to implement Art. 1 of the Charter. That conclusion is consistent with the fact that whilst the Charter provisions have equal value to Treaty articles, they do not have identical legal effects. Unlike a Treaty provision, an article of the Charter cannot furnish a legal basis for Union legislation.

47. The first of these, Case C-179/11 Cimade & GISTI v. Ministre de l’intérieur, de l’Outre-mer, des Collectivitiés territoriales et de l’immigration, EU:C:2012:594 (hereafter ‘Cimade & GISTI’), a reference from the Conseil d’État, France, concerned the treatment afforded to persons who had sought international protection in France but whom the French authorities asked other Member States to take charge of or to take back. Having decided that Directive 2003/9 applied to persons in those circumstances, the Court of Justice held, at para. 56 of its judgment, that:

“… further to the general scheme and purpose of Directive 2003/9 and the observance of fundamental rights, in particular the requirements of Article 1 of the Charter, under which human dignity must be respected and protected, the asylum seeker may not, as stated in paragraphs 41 to 44 above, be deprived – even for a temporary period of time after the making of the application for asylum and before being actually transferred to the responsible Member State – of the protection of the minimum standards laid down by that Directive.”

48. This passage makes it clear that the correct application of Directive 2003/9 and the observance of fundamental rights, including those recognised in Art.1 of the Charter, require competent national authorities not to deprive applicants for international protection of the benefit of the minimum reception standards prescribed therein. Nowhere does it say that a failure to provide these standards itself equates to a breach of Art. 1 of the Charter. It is only upon an examination of the context and the consequences of such a breach and, notably, its concrete impact upon the circumstances in which applicants for international protection find themselves, that it can be determined whether, in addition to and aside from any failure to comply with the provisions of Directive 2003/9, those persons are also deprived of the rights that Art. 1 of the Charter recognises and protects.

49. In Saciri, the Court of Justice was asked if Art. 13 (5) of Directive 2003/9 is to be interpreted to mean that, when a Member State opts to grant material reception conditions in the form of a financial allowance, it must, inter alia, ensure that an allowance is such as to enable asylum seekers to obtain accommodation. Having recited the passage in Cimade & GISTI reproduced at para. 47, above, and by reference to the seventh recital and Arts. 2 (j) and 13 (2) of Directive 2003/9, at para. 42 of its judgment the Court of Justice concluded that:

“… where a Member State has opted to provide the material reception conditions in the form of financial allowances, those allowances must be sufficient to ensure a dignified standard of living and adequate for the health of applicants and capable of ensuring their subsistence by enabling them to obtain housing, if necessary, on the private rental market.”

Saciri thus confined itself to a description of what Directive 2003/9 required of Member States when they implemented its provisions. It neither states nor implies that a breach of that obligation automatically results in a breach of Art. 1 of the Charter.

50. Unlike its judgments in Cimade & GISTI and Saciri, that which the Court of Justice delivered in Haqbin posits the standard for the existence of a breach of Art. 1 of the Charter. The reference from the Higher Labour Court, Brussels, Belgium in Haqbin asked questions on the interpretation of Directive 2013/33, not its predecessor. Whilst all judgments of the Court of Justice are of equal standing, it sat as a Grand Chamber in Haqbin, which it had not done in Cimade & GISTI or in Saciri. The reference was made in the context of the conduct of a single individual, an applicant for international protection who had engaged in activities at a reception centre that caused him to be excluded from the benefit of material support, as a result of which he had ended up sleeping in a public park for periods of time.

At para. 35 of the judgment, the Court of Justice observed that the requirement that Member States ensure the availability of material reception conditions was not absolute insofar as Art. 20 of Directive 2013/33 envisaged circumstances in which those conditions may be reduced or withdrawn. At para. 45 it held that, in accordance with Art. 20(5) thereof, any sanction “…must, under all circumstances, ensure access to health care and a dignified standard of living for the applicant.” Paragraph 46 of the judgment is reproduced at para. 43, above.

Had the Court of Justice been of the view that a breach of the requirement to provide the material reception conditions that Directive 2013/33 equated to a breach of Art. 1 of the Charter, it had no need to lay out the test described in that paragraph of its judgment. At para. 47, the Court of Justice observed that a sanction imposed on the basis of a reason mentioned in Art. 20(4) of Directive 2013/33 that amounted to a withdrawal, if only temporarily, of material reception conditions relating to housing, food or clothing, would be irreconcilable with the requirement, in Art. 20(5) thereof, to ensure a dignified standard of living for the applicant.

It did not proceed to equate such a withdrawal to a breach of Art. 1 of the Charter. Read in context, what the Court of Justice appears to say in Haqbin is that, whilst the availability of minimum reception conditions is not absolute and an applicant for international protection may be deprived of the benefit of such conditions in certain limited circumstances, for an individual person to suffer a breach of his or her rights under Art. 1 of the Charter such deprivation must have the consequences described in para. 46 of its judgment in that case.

51. These three judgments address circumstances where applicants for international protection did not receive the minimum reception standards that Directive 2013/33, or its predecessor, requires the Member States to provide. It is true that, in laying down minimum reception standards, Directive 2013/33 seeks to ensure that Member States adhere to Art. 1 of the Charter in the treatment they afford to applicants for international protection. A Member State that provides those minimum reception standards will thus almost invariably comply with Art. 1 of the Charter. The judgment in Haqbin makes it clear, however, that it does not necessarily follow that, because a Member State does not provide those minimum reception standards to applicants for international protection, it is automatically in breach of Art. 1 of the Charter. Were the Court of Justice of a different view, that judgment would have neither devised the test set out at para. 43, above, nor could it have held that Member States are not under an absolute obligation to provide such minimum reception conditions.

52. Since a breach of Art. 1 of the Charter is capable of being determined by reference to the test that the Court of Justice has established, where the High Court, at the suit of a party with capacity to obtain relief in respect thereof, is satisfied that such a breach has occurred it is competent to make a declaration to that effect.

53. This analysis does not, in my opinion, contradict the passage at para.

119 of the judgment of Power J. (nem. diss.) in L.A. v. I.P.A.T. [2024] IECA 133 upon which the respondents rely. First, the extract the respondents cite is heavily qualified by the first sentence of that paragraph: “It is, however, important to clarify that the right to seek employment is not about what the appellants referred to as the right to dignity.” Second, from a reading of that entire paragraph and that which immediately follows it, it is clear that Power J.’s observations on the nature of human dignity were made in a context far removed from the subject matter of the case-law considered at paras. 43 to 50, above.

54. I therefore hold that Art. 1 of the Charter is, in principle, justiciable before the Courts of Ireland, that the Commission is accordingly entitled to maintain proceedings under Part 3 of the Act of 2014 to seek a declaration that the respondents breached that provision, and that the High Court had jurisdiction to make the declaration it issued on 11 October 2024.

c) The High Court’s application of the test of a breach of Article 1 of the Charter

55. Paragraph 123 of judgment under appeal states that:

“It is relevant and noteworthy that the judgment of the High Court in S.Y. was not appealed, and that, at the hearing of this case, although the State sought to distinguish S.Y., it did not seek to argue that it was wrongly decided. Respectfully, I am in full agreement with the analysis of Meenan J., and for my part I cannot see any reason why that decision should not be followed. …, at the level of principle, I consider that the decision clearly and correctly

– having regard to the unequivocal rulings of the CJEU – establishes that a failure to provide for the basic needs of an IP applicant amounts to a breach of that person’s rights under Article

1 of the Charter of Fundamental Rights of the European Union.”

56. Under the heading “Discussion” at paras. 218 to 220 of the judgment under appeal, the following appears:

“218. It is important to return to the question of what has been determined by the relevant case law. In that regard, the High Court, drawing on clear authority from the CJEU has established that the State will breach the rights of unaccommodated IP applicants under Article 1 of the

Charter on Fundamental Rights of the European Union if their basic needs are not met on an uninterrupted basis from the point at which they apply for international protection.

219. What amounts to basic needs has been noted by the CJEU in Haqbin as including a place to live, food, clothing and personal hygiene. The ultimate purpose of ensuring that basic needs are met is not merely to ensure compliance with the provisions of the Directive or Regulations, as important as that is, but to ensure that IP applicants are not treated in a manner incompatible with their human dignity.

220. The initial question is how the court can be satisfied on the evidence, not that an individual person’s basic needs are being met or not met, but that the basic needs of a class of persons are being met or not being met. Can the court be satisfied that, as a class, the unaccommodated IP applicants are provided with sufficient means to have an adequate standard of living?”

57. Reading these paragraphs as a whole leads me to conclude that they are consistent with the decision of the learned trial judge to follow the S.Y. judgment, with which he had both indicated his full agreement and by which he was bound. Insofar as the High Court held in S.Y. that there had been a breach of Art. 1 of the Charter by reason of the State’s failure to comply with its obligations to the applicant under the 2018 Regulations – and in that respect only – I am of the view that that judgment was incorrect. The test adumbrated in the case-law of the Court of Justice set out at paras.

38 to 51, above, requires that an individual establish both that s/he is in a situation of extreme material poverty that does not allow him/her to meet his or her most basic needs such as a place to live, food, clothing and personal hygiene and that such a situation undermines his or her physical or mental health or puts that person in a state of degradation incompatible with human dignity. According to my understanding of that test, a failure to provide an individual with the material reception conditions contained in the 2018 Regulations does not, in and of itself, establish that that person has suffered a breach of Art. 1 of the Charter. That conflation of a breach of the 2018 Regulations with a breach of Art. 1 of the Charter was further compounded by the fact that, in S.Y., the High Court did not appear to examine the application of the second leg of the test to the facts of that case, which approach the trial judge appears to have followed. Although para. 254 of the judgment under appeal may suggest that he was alive to this second criticism, it is difficult to regard that paragraph as an application of the second leg of a precise test but rather as drawing an inference at a relatively high level.

58. By following S.Y. and by seeking to apply it to the facts, rather than the test the Court of Justice has laid down to establish the existence of a breach of Art. 1 of the Charter, the learned trial judge examined the evidence before him through a lens different than that through which the law requires. In Doyle v. Banville [2018] 1 I.R. 505, at para. 14, Clarke J. observed that “….part of the function of an appellate court is to ascertain whether there may have been significant and material error(s) in the way in which the trial judge reached a conclusion as to the facts.” That citation appears to be apposite in a context where I find that the High Court applied an incorrect legal test to its analysis of the facts before it.

59. Given the nature of judicial review proceedings in which evidence is usually received on affidavit, this Court appears to be in as good a position as the High Court to assess the material that seeks to prove that the Commission made out its case to the requisite standard. In Northern Bank Finance Corporation Ltd. v. Charlton [1979] I.R. 149 at p. 180, O’Higgins C.J. observed that:

“A judge's findings on fact can and will be reviewed on appeal. Such findings will be subjected to the normal tests as to whether they are supported by the evidence given at the trial. If such findings are firmly based on the sworn testimony of witnesses seen and heard and accepted by the judge, then the court of appeal, recognising this to be the area of credibility, will not interfere. However, if the finding in question depends on the judge's view of the evidence or on inferences he draws from such evidence, then the court of appeal, while respecting this view, will nevertheless disagree if another view or a different inference be the proper one.”

60. Delivering judgment in the same case, Henchy J. held, at pp. 192-3, that:

“…, if the question of fact that was answered in the court of trial … amounts to a conclusion in the nature of an evaluation of proved or admitted facts, the court of appeal will consider itself free to rely on its own judgment as to whether the evaluation made by the tribunal of fact is correct or not, on the ground that its competence to evaluate the fact in question is no less than that of the tribunal of fact, …; for the evidential data for the answer to the question will be essentially the same in both courts.

…, if the issue in the court of appeal is whether a particular inference of fact is correct, and the question can be resolved in the court of appeal without usurping the trial court's function of choosing between conflicting alternatives arising out of the oral testimony, the court of appeal will not be debarred from differing from the trial court as to the proper inference to be drawn.”

61. At para. 51 of his judgment in A.K. v. U.S. [2022] IECA 65, Murray

J. cited with approval part of the aforecited passage from the judgment of Henchy J. in Northern Bank Finance Corporation Ltd. v. Charlton. It is open to this Court to remit the matter to the High Court to enable it to apply the legal test that I have identified to the evidence before it. In the circumstances, this Court appears to be in as good a position as the High Court to evaluate that evidence in the light of that test. A remittal would, moreover, delay the expeditious adjudication of these proceedings. I therefore propose that this Court evaluate the evidence before it and rule upon the application for judicial review.

d) Evidence of a breach of Article 1 of the Charter

62. In these proceedings, the Commission has taken on the task of proving, on the balance of probabilities, that a class, consisting of those applicants for international protection who presented to the IPO between

4 December 2023 and 10 May 2024 and who did not receive an offer of accommodation, was as a consequence:

- in a situation of extreme material poverty that prevented them from meeting their most basic needs,

- which situation undermined their physical and/or mental health or put them in a state of degradation incompatible with human dignity. At a minimum, the Commission must establish that a sufficiently representative number of the members of that class found themselves in those circumstances so as to provide a firm evidential basis upon which a court could infer that the class of those persons had, in fact, been so afflicted.

63. The evidence adduced before the Court to support the existence of a breach of the rights that, by virtue of Art. 1 of the Charter, inhere in the members of the class the Commission defined must be assessed in the context of the procedure it chose to invoke. Proceedings by way of judicial review are not well designed to resolve disputes of fact. The Court receives evidence on affidavit, in the form described at R.S.C. Ord. 40, r.

8. It is trite law that, where the resolution of conflicts in affidavit evidence is necessary for the proper disposition of proceedings, there must be crossexamination and the onus in that regard rests on the party on whom the onus of proof lies to establish the contested facts (RAS Medical Ltd. v. Royal College of Surgeons in Ireland [2019] IESC 4 at para. 7.6 per Clarke C.J. (nem. diss.); Molloy v. D.P.P. [2000] IEHC 89 at para. 20 per

Ó Caoimh J.). That the principal affidavits sworn on behalf of the parties to this application contain a significant amount of hearsay may explain why no application was made to cross-examine the deponents: whatever the explanation, the consequence is that where there is a dispute as to the facts, this Court cannot prefer the version of events proffered on the Commission’s behalf.

64. Having defined the “initial question” that it set out at para. 220 of the judgment under appeal, reproduced at para. 56, above, in the subsequent paragraphs the High Court correctly, in my opinion, observed that the Commission’s evidence to show that the basic needs of unaccommodated applicants for international protection were not being met by the respondents consisted of a series of general factual propositions on the availability of housing and services and a set of general factual propositions on the adequacy of the response thereto, with respect to individual measures and their combined effects. Those general propositions were corroborated by evidence of the personal experiences of thirteen applicants for international protection, which the respondents did not seriously contest. The respondents also accepted that a large number of persons who had applied for international protection between early December 2023 and May 2024 had not been provided with accommodation, including some of whom they identified as “street homeless”. The respondents provided a generalised contention that their response had been adequate and that it could be inferred that many unaccommodated applicants for international protection had been able to access accommodation. Whilst it is common case that, as Counsel for the respondents confirmed at the hearing of this appeal, between 4 December 2023 and 10 May 2024, 2,807 applicants for international protection who presented to the IPO did not receive an offer of accommodation, the evidence filed on the respondents’ behalf does not concede that the provision for those persons that they made, or caused to have made, did not cater for their basic needs.

65. It is at least doubtful whether a Court can, or ought to, find as a fact that Art. 1 of the Charter has been breached by reference either to a series of general factual propositions countered by a generalised contention or on the basis of inferences that might be drawn from those general factual propositions - particularly where those propositions and inferences are not admitted. I accordingly suggest that this Court does not take up the Commission’s invitation to draw, from a very limited amount of direct evidence, a series of inferences in circumstances where, on the case that it chose to advance, it must prove that members of a class of 2,807 persons, from very different backgrounds, found themselves in circumstances that amounted to a breach of Art. 1 of the Charter over a period of approximately five months.

66. At para. 32 of his affidavit of 27 March 2024, Mr. Delaney averred that, as of 25 March of that year, IPAS had received 541 referrals for potential rough sleepers, of whom 404 received an offer of accommodation. At para. 35 of his affidavit of 8 May 2024, Mr. Delaney accepted that there were 319 persons who were prioritised to receive, but who had not been offered, accommodation, adding that the respondents intended to address those persons’ circumstances with the greatest possible expedition. From the exchanges between the parties and the figures they adduced, a Court could infer that a fluctuating number of members of the class that the Commission defined were forced to sleep outdoors for indeterminate periods of time.

That finding is, of itself, insufficient to show that the accommodation needs of the members of the defined class were not met. The affidavits exchanged nevertheless contain certain undisputed objective elements as are sufficient to allow this Court to draw its own conclusions as to the provision of accommodation to the members of the class of persons the Commission defined. A summary of that evidence discloses that IPAS paid €537.60 a week to accommodate an individual applicant for international protection (affidavit of Mr. Jim Clarken, Commissioner, made on 13 May 2024, para. 25): that in 2022 a single person in Ireland with a weekly disposable income of €318.53 was on the poverty line (verifying affidavit of Ms.

Sinéad Gibney, Chief Commissioner, made on 21 December 2023, para.

35) and that a person who stayed in hostel accommodation at the very cheapest rate quoted, with no guarantee that accommodation would be available at that price for more than a few days at any one time, would pay €140 a week (affidavit of Ms. Samantha Man, Legal Executive, Irish Human Rights and Equality Commission, made on 21 December 2023). It is uncontested between the parties that €113.80 per week was available by way of DEA for applicants for international protection not offered accommodation. Even giving full credit for the “drop-in day” services to which the Minister arranged to provide access, and the availability of ANPs, as discussed at para. 67, below, that evidence, of an essentially objective character and gleaned from materials submitted by both parties to the proceedings, is sufficient to ground a finding that, on the balance of probabilities, the provisions that the Minister made or caused to have made on his behalf fell short of satisfying the accommodation needs of a substantial number of the members of the class of persons that the Commission defined such that this Court can find that those provisions did not meet the accommodation needs of that class of persons.

67. The evidence before the Court is inconclusive as to the adequacy of the provision the respondents made for the food, clothing, and hygiene needs of the class of persons the Commission defined for the purposes of this litigation. The summary of the respondents’ efforts at para. 233 of the judgment under appeal, which para. 232 thereof describes as the “…provision made by the State …to provide for those basic needs”, did not refer to the ANPs that the Department of Social Protection made available to applicants for international protection. This issue was first raised at para. 36 of Ms. Gibney’s affidavit of 21 December 2023, where she described various delays in applicants for international protection accessing State financial supports. At paras. 41 to 45 of his affidavit of 27 March 2024, under the rubric “The Availability of DSP payments”, Mr. Delaney responded to that criticism in some detail. He observed, inter alia, that the Department of Social Protection made ANPs available to applicants for international protection. According to his colleagues in that Department, between 4 December 2023 and sometime in March 2024, approximately 4,985 ANPs had been paid to applicants for international protection, to the value of €609,922. He exhibited guidance issued to the staff of the Department of Social Protection as to the availability of the DEA and the ANP for such applicants and averred that posters highlighting the availability of ANPs were on display at the office of the Department of Social Protection at which applicants for international protection attended to collect PPS numbers and to apply for the DEA. Paragraph 47 of Mr. Clarken’s affidavit made on 12 April 2024 estimated that, between early December 2023 and mid-April 2024, over 1,400 ANPs were paid to applicants for international protection in receipt of the increased DEA, which figure Mr. Delaney appeared to accept as a best, if incomplete, estimate in his affidavit of 8 May 2024. At paras. 42 to 44 of that same affidavit, Mr. Delaney represented that, between December

2023 and March 2024 inclusive, a total of 7,653 ANPs were paid to 5,998 persons in receipt of DEA, ranging from 4,828 persons who received one such payment to 150 individuals who received four or more. ANPs were available to all applicants for international protection by reference to a person’s circumstances irrespective of whether they had been offered accommodation. Mr. Clarken’s affidavit of 12 April 2024 appears to dismiss the impact of ANPs for applicants for international protection not offered accommodation and asserts that the respondents did not show how those payments, when combined with the increased DEA, were adequate for those persons’ basic needs. That approach seems to shift the burden of proof from the applicant, upon which it usually lies, to the respondents. It was for the Commission to show, at least in the first instance, the impact, or the lack thereof, of the availability of ANPs for the material circumstances of the class of 2,807 persons that it had defined. The stance it adopted toward this issue falls short of the level of engagement required of a party on which the burden of proof lies in proceedings by way of judicial review. It contrasts unfavourably with the detailed analysis of the availability and cost of nightly hostel accommodation in Dublin between

14 March and 14 April 2024 that subsequently appears at paras. 58 to 61 of Mr. Clarken’s affidavit of 12 April 2024, upon which this Court is prepared to reach the conclusions set out at para. 66, above.

68. The evidential deficit as to the consequences, if any, of the availability of ANPs is compounded by the lack of evidence submitted as to the alleged failure to provide for the basic food, clothing and hygiene needs of the members of the class of persons that the Commission defined. Accepting, as Mr. Delaney does at para. 71 of his affidavit of 8 May 2024, the evidence of Mr. Geoffrey Corcoran, Head of Service and Operations of Merchants Quay Ireland, in his affidavit made on 11 April 2024, which describes in detail the strain placed on the capacity of that single facility to provide a hot meal, shower and change of clothes to those persons who sought to avail of its services, read together with the evidence proffered by the thirteen applicants for international protection, it is insufficient to allow this Court to infer that, as a matter of fact, the conditions as described applied to the class of 2,807 persons in respect of whom the Commission took on the burden of proving its case. At the very least, a Court requires some form of analysis to demonstrate that the evidence led was sufficiently representative of the conditions experienced by the class of persons so as to allow it to infer that those conditions applied to its members. Absent same, this Court is simply not in a position to conclude that a combination of the availability of the various State payments and access to day services failed to meet the basic food, clothing and/or hygiene needs of the members of that class such that they suffered extreme material poverty contrary to Art. 1 of the Charter.

69. It follows that the Commission has succeeded in establishing, on the balance of probabilities, that the provision for the accommodation of the class of persons that it defined for the purpose of these proceedings was insufficient to meet those persons basic accommodation needs. The Court has explained why it is not in a position to make a similar finding with respect to the provision the respondents made or caused to have made for that class of persons food, clothing and hygiene needs. For the purposes of this case, which include the findings to be made at paras. 70 to 75, below, the Court is prepared to infer that, as a consequence of the insufficient provision with respect to their accommodation needs, the class of persons the Commission defined found themselves in a situation of extreme material poverty: that is not to say that, in another case, a party might be put on proof of the existence of such circumstances in order to succeed in a claim that he or she had suffered a breach of Art. 1 of the Charter.

70. Once it is shown that the members of the class the Commission defined were in a situation of extreme material poverty due to a want of provision for their accommodation needs, the Commission must then prove that those circumstances undermined the physical and/or mental health of the members of that class or put them in a state of degradation incompatible with human dignity. In the course of the hearing, Counsel for the respondents pointed out that the thirteen applicants for international protection not offered accommodation upon presenting themselves to the IPO who gave evidence of their personal experiences represented approximately 0.4% of the class of persons the Commission had defined. No evidence was led to explain how that, or any other, percentage of that class of persons constituted a representative sample. The veracity of the affidavit evidence adduced by those individuals was not in issue, and the respondents replied by way of averments that were principally designed to show that those deponents had been offered accommodation subsequently. That evidence is necessarily and understandably limited to those individuals’ experiences. The Commission has not demonstrated to the satisfaction of the Court how that evidence can be applied across the board to the members of the class of persons that it defined for the purposes of this litigation so as to establish that the physical and mental health of the persons who composed that class was undermined or that they were thereby put in a state of degradation incompatible with human dignity.

71. Even accepting at face value all of the evidence of a general nature adduced on the Commission’s behalf, it is, moreover, not open to this

Court to infer from that evidence provided by a sample of 0.4% of the class of persons the Commission has defined that the physical and/or mental health of a class of 2,807 individuals was undermined as a consequence of the situation as described. The state of an individual’s physical and mental health is, by its nature, intrinsic to that person. It is not possible to deduce the state of a person’s mind and body by direct extrapolation from the material conditions in which they live, even where those conditions are deemed to amount to extreme material poverty. Were it possible to make that assumption or draw that inference in respect of each and every person, the second leg of the test adumbrated by the Court of Justice would serve no purpose. A relevant consideration in that context is that the respondents aver, without contradiction, that they intended to resolve as soon as possible the difficulties the existence of which they were prepared to acknowledge and that those difficulties were accordingly of a temporary nature. That is illustrated by the response to the affidavits made by the thirteen applicants for international protection who had not been offered accommodation at the time they presented themselves to the IPO to the effect that those persons were offered accommodation at a later date. The impact of what would undoubtedly have been an unpleasant, but relatively brief, experience upon an individual’s physical and mental health differs greatly from person to person. The evidence proffered in this case falls far short of allowing this Court to hold that the physical and/or mental health of the large class of persons that the Commission defined was undermined as a consequence of the situation of extreme material poverty arising from a want of accommodation sufficient to meet their basic needs.

72. I conclude that the Commission has not adduced evidence sufficient to prove to the requisite standard that the circumstances of extreme material poverty with respect to accommodation needs had the consequence of undermining the physical and/or mental health of the members of the class of persons that it defined for the purpose of this litigation. That is not to say that the evidential gap so identified could not be closed in other proceedings. On the evidence the Commission led, however, the extent and the degree to which the members of the class of persons who found themselves in circumstances similar to those of the thirteen deponents, not all of whom complained of their health being undermined as a result of the circumstances that they found themselves in, becomes a matter of conjecture, upon which a Court ought not to be invited to make a declaration of right.

73. I turn finally to the question as to whether the state of the evidence permits this Court to find that the circumstances of extreme material poverty in which the members of the class the Commission defined found themselves put them in a state of degradation incompatible with human dignity such as would, if established, breach Art.1 of the Charter. What constitutes degradation for the purposes of Art. 1 of the Charter is a matter of considerable academic debate, from which the Court might have benefitted from more extensive argument. In these circumstances, I would simply observe that such discussion as took place in the High Court on this issue appears to disclose that the parties did not seem to contest a definition of that concept that appears at para. 220 of the M.S.S. judgment, namely that “[t]reatment is considered to be “degrading” when it humiliates or debases an individual, showing a lack of respect for, or diminishing, his or her human dignity, or arouses feelings of fear, anguish or inferiority capable of breaking an individual’s moral and physical resistance” (applied by the ECtHR in its judgment of 2 July 2020, N.H. & Ors. v. France CE:ECHR:2020:0702JUD002882013, para. 159 and the case-law there cited). That same, apparently constant, case-law of the ECtHR, also makes it clear that “…inhuman or degrading treatment must attain a minimum level of severity if it is to fall within the scope of the prohibition in Article 3. The assessment of this minimum level is relative; it depends on all the circumstances of the case, including the duration of the treatment, its physical or mental effects and, in some instances, the sex, age and state of health of the victim.” M.S.S., para. 219; see also N.H. & Ors. v. France, para. 158 and the case-law there cited. Whilst these statements of the law were delivered in the context of proceedings against Contracting States of the ECHR referrable to the personal circumstances of individuals, the authority and pertinence of their content to the resolution of these proceedings cannot be gainsaid, notably since the Court of Justice relied upon M.S.S. in Jawo (see paras. 91 to 92 of the latter judgment).

74. For a court to establish the existence of degrading treatment requires evidence upon which it can inquire into, and assess, the impact of that treatment upon the persons who are alleged to have suffered from it. To be classed as degrading treatment for the purposes of Art. 1 of the Charter, it must attain a minimum level of severity: as observed at para. 57, above, a breach of provisions enacted to give effect to Directive 2013/33 does not suffice. The orders of the ECtHR in N.H. & Ors. v. France support that approach: albeit it held there had been a breach of Art. 3 ECHR in respect of three of the applicants, living conditions during the approximately ninety days in which the fourth applicant had slept in a tent, whilst found to have been difficult for him, “…did not attain the level of severity required for the purposes of Article 3 of the Convention.” (paras. 187 to

188 of the judgment). The elements adumbrated at paras. 70 and 71, above, apply equally to a party that seeks to meet this leg of the test the

Court of Justice has established to identify the existence of a breach of Art. 1 of the Charter. For the same reasons, I consider that the Commission has not adduced evidence sufficient to show that the circumstances of extreme material poverty, attributable to a failure to meet the accommodation needs of members of the class of persons it defined for the purpose of this litigation, had the consequence of putting those persons in a state of degradation incompatible with human dignity. The extent and the degree to which the circumstances the thirteen applicants for international protection who deposed in this case described amounted to degrading treatment is also insufficient to permit this Court either to hold that the members of the class the Commission defined found themselves in a state of degradation incompatible with human dignity or to infer the existence of that state of affairs.

75. In the light of these findings there is no necessity for this Court to rule on a number of issues that were the subject of debate in the course of this appeal, including the respondents’ compliance or otherwise with the 2018 Regulations and the validity of the various explanations tendered by way of justification for that alleged non-compliance. It is sufficient to observe that the terms in which Art. 1 of the Charter is couched make it difficult to envisage circumstances where a Member State could bring itself within Art. 52.1 thereof so as to exculpate itself therefrom.

IV. Summary & Conclusion

76. For the reasons given at paras. 16 to 35, above, I interpret s. 41 of the Act of 2014 as conferring on the Commission an express statutory entitlement to commence proceedings for the purpose of obtaining relief in respect of any matter concerning the human rights of any person or class of persons. The Commission’s institution of these proceedings comes within the intendment of that provision, by reason of which they were properly before the High Court.

77. For the reasons given at paras. 37 to 54, above, I propose that the Court hold that:

- Article 1 of the Charter is, in principle, justiciable before the Courts of Ireland;

- the Commission is entitled to maintain proceedings under Part 3 of the Act of 2014 to seek a declaration that the respondents breached that provision;

- the High Court had jurisdiction to make the declaration it issued on

11 October 2024; and

- in order to succeed in these proceedings, the Commission must prove, on the balance of probabilities, that a class consisting of those applicants for international protection who presented to the IPO between 4 December 2023 and 10 May 2024, and who did not receive an offer of accommodation were, as a consequence:

o in a situation of extreme material poverty that prevented them from meeting their most basic needs, and o which situation undermined their physical and/or mental health or put them in a state of degradation incompatible with human dignity.

78. For the reasons given at paras. 66 and 69, above, the Commission has proved on the balance of probabilities that, as a consequence of the want of provision that the respondents made for the accommodation needs of applicants for international protection who presented to the IPO between

4 December 2023 and 10 May 2024, and the Court is prepared to infer that the members of that class of persons were thereby placed in a situation of extreme material poverty.

79. For the reasons given at paras. 70 to 74, above, the Commission has not proved that that situation of extreme material poverty undermined the physical and/or mental health of the members of that class of persons or put the members of that class in a state of degradation incompatible with human dignity.

80. I therefore propose that the Court allow the appeal and dismiss the application for judicial review.

81. Proceedings instituted in the bona fide exercise of a power conferred by statute on an authority funded from the public purse against a body or agency funded from the same source are a necessary, if infrequent, feature of the operation of the rule of law. An order to award the costs of this appeal to either party could only increase the level of resources expended upon the legitimate purpose of resolving the issues at stake in this litigation. I am accordingly of the view that the Court should neither disturb the High Court costs order nor make any order as to the costs of this appeal. Should either party seek a different order, it should file and serve a written submission of not more than 2,000 words within 21 days of the delivery of this judgment, after which the other party will have a further 21 days in which to respond by the lodgment and service of a reply of similar length.

82. Since this judgment is delivered electronically, I am authorised by Pilkington and Hyland JJ. to state that they agree with it and with the order proposed therein.

Appearances:

For the Applicant/Respondent: Eoin McCullough SC, Patricia Brazil SC and David Fennelly SC, instructed by Clare McQuillan, Solicitor

For the Respondents/Appellants: David Conlan Smyth SC, Catherine Donnelly SC, John P. Gallagher and Aoife McMahon, instructed by the Chief State Solicitor