Court of Appeal dismisses appeal on standing grounds, holding appellants lack interest to challenge future safe country designations.

AN CHÚIRT ACHOMHAIRC THE COURT OF APPEAL

APPROVED – NO REDACTION NEEDED

Court of Appeal Record Number: 2025/70 High Court Record Number: 2023/19 JR Neutral Citation Number: [2025] IECA 198

Whelan J. Pilkington J. Collins J.

BETWEEN/ W.P.L. AND B.P.

APPLICANTS/APPELLANTS

- AND -

THE MINISTER FOR JUSTICE AND EQUALITY, THE INTERNATIONAL PROTECTION APPEALS TRIBUNAL, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

JUDGMENT of Mr. Justice Anthony M. Collins delivered on the 8th day of October 2025

I. Background to the Appeal

1. On 21 January 2021 the appellants, who are citizens of the Republic of South Africa (hereafter ‘South Africa’), made a claim for international protection in the State. They were interviewed on 14 June 2022 under s.35 of the International Protection Act 2015 (hereafter ‘the Act of 2015’). On 23 August 2022, the International Protection Office (hereafter ‘IPO’) issued each appellant with a report and a recommendation which determined that, pursuant to s.39(3)(c) of the Act of 2015, they should receive neither a refugee nor a subsidiary protection declaration and, by reference to s. 39(4)(e) thereof, that South Africa was a safe country of origin. The appellants’ appeals against the IPO reports were, as a consequence, subject to the procedures described in s. 43 of the Act of 2015, namely that they had to be brought within a shorter period than that prescribed in the generality of cases and would be determined without an oral hearing unless the International Protection Appeals Tribunal, the second named respondent, decided otherwise.

2. On 29 August 2022, the appellants appealed to the second named respondent within the requisite time limit. The second named respondent having decided that it was in the interests of justice to determine the appeals with an oral hearing, same took place on 16 November 2022.

3. At para. 4.16 of its decision of 29 November 2022, the second named respondent accepted, inter alia, that South Africa has a very high crime rate; that the appellants and members of their families had been the victims of crime on at least five occasions and that the high rate of unemployment in South Africa made it difficult for the appellants to find work. By reference to those facts and country of origin information, the second named respondent considered if the appellants had a wellfounded fear of persecution under the headings of nationality and religion, employment, hate crime and the risk of crime. At para. 5.16 it concluded that it had not been shown that was the case. Given the high rate of crime in South Africa there was a reasonable chance that, if the appellants returned there, they would experience criminal incidents of an opportunistic nature, which did not constitute persecution or serious harm.

4. The second named respondent then assessed whether state protection from crime would be available to the appellants in the event they returned to South Africa and at para. 5.18 of its decision observed that:

… South Africa has been designated a safe country of origin. The designation in effect creates a presumption that there is generally and consistently no persecution, torture or inhuman or degrading treatment or punishment for example, however the Tribunal also recognises that this is a rebuttal (sic) presumption and that each case must be determined on its own set of facts. In written legal submissions it is argued that there are serious reasons to consider South Africa not to be safe in the Appellants particular circumstances, which renders the designation of South Africa as a safe country to be no longer relevant to them.

5. After citing s. 31 of the Act of 2015, which addresses the availability of state protection, and relevant case-law, the second named respondent concluded at para. 5.26 of its decision that “… protection is generally provided when the state takes reasonable steps to prevent persecution or suffering of serious harm, inter alia, by operating an effective legal system for the detection, prosecution and punishment of acts constituting persecution or serious harm,…, the focus here is whether reasonable protection, in practical terms, can be provided.”

Having considered the materials that the appellants had submitted and other country of origin information, the second named respondent concluded at para. 5.30 that “…it cannot be said that there is clear evidence of a lack of effective State Protection in South Africa in relation to crime in general.” On the basis of an individualised assessment of the appellants’ circumstances, the second named respondent found, at para. 5.38, that, “…on the evidence before it, having regard to the particular circumstances of this case, that state protection, while less than perfect, is effective, non-temporary and accessible to the Appellants in respect of their asserted fears from crime and police ineffectiveness, and that South Africa as a whole does not lack a reasonably functioning police and criminal justice protection such that the Appellants require international protection.”

6. For those reasons the second named respondent affirmed the IPO report in so far as it declined to give the appellants a refugee declaration. It proceeded to examine the appellants’ claims for subsidiary protection, to which it also declined to accede for the reasons it gave at paras. 7.2 to

7.6 of its decision. In so doing, the second named respondent stated that it had considered the analysis and the findings in various of its previous decisions as had been brought to its attention, particularly in respect of material facts similar to the appellants’ experiences.

7. On 13 February 2023, the High Court (Meenan J.) granted the appellants leave to seek, inter alia, four reliefs by way of judicial review, viz. orders of certiorari to quash the first named respondent’s decision, made under s. 72 of the Act of 2015, to designate South Africa as a safe country of origin, and the second named respondent’s decision of 29 November 2022; declarations that ss. 33 and 72 of the Act of 2015 are void as ultra vires and/or contrary to EU law; and that the first named respondent is in breach of s. 72 of the said Act for its failure to review and/or to maintain the designation of South Africa as a safe country of origin.

8. The High Court (Phelan J.) delivered judgment in those proceedings on 22 March 2024 ([2024] IEHC 184). On 13 November 2024, the High Court ordered as follows: to extend the time to commence the proceedings; that the appellants had standing to maintain same; that the appellants had liberty to take up the transcript of the Digital Audio Recording of that day’s proceedings, subject to the discharge of any costs incurred for that purpose; to dismiss the applications and to refuse the reliefs sought therein; to refuse the appellants’ application for a certificate for leave to appeal pursuant to s. 5(6) of the Illegal Immigrants (Trafficking) Act 2000 (hereafter ‘the Act of 2000’); that the appellants pay the respondents’ costs to include all reserved costs and the costs of the application for a certificate of leave to appeal, to be adjudicated upon in default of agreement; to stay the execution of that order for 28 days from perfection thereof, which stay was to continue in the event of the lodgment of an appeal.

9. By Notice of Appeal received on 26 March 2025 at the Court Office, the appellants sought to appeal the entirety of the High Court judgment and order. Grounds 1 to 4 alleged that the designation of South Africa as a safe country of origin was unlawful, whilst Ground 5 asserted that s. 72(5) of the Act of 2015 imposed an obligation on the first named respondent to review the designation of South Africa as a safe country of origin on a regular basis, which had not been done. Grounds 6 to 8 asserted that the second named respondent’s decision was unlawful, irrational, inconsistent and unfair.

10. On 9 May 2025, the respondents filed a notice in the Court Office whereby they opposed the entire appeal on a number of grounds. By way of preliminary objection, they submitted that Grounds 6 to 8, which challenged the High Court’s findings to dismiss the challenges to the validity of the second named respondent’s decision, were not properly before this Court since the High Court had declined to grant a certificate for leave to appeal against its decision pursuant to s. 5(6)(a) of the Act of 2000. Insofar as Grounds 1 to 5 were concerned, the respondents in essence contended that the High Court judgment was correct. The respondents also cross-appealed against the High Court’s orders to grant the appellants an extension of time within which to bring their judicial review application and to find that they had the required standing to make that application.

II. Jurisdiction to entertain Grounds of Appeal 6 to 8

11. At the hearing of this appeal on 28 July 2025 the Court asked the parties to address the respondents’ preliminary objection as a discrete issue so as to enable it to rule upon that objection.

12. The Court observed that amongst the reliefs the appellants had sought before the High Court was an order of certiorari to send forward for the purpose of being quashed the second named respondent’s

decision of 29 November 2022, made under s. 46(3)(a) of the Act of 2015, which affirmed the IPO’s recommendation made under s. 39(3)(c) thereof. The High Court Order of 13 November 2024 dismissed the appellants’ proceedings, refused the reliefs sought therein and declined to accede to the appellants’ application for a certificate for leave to appeal pursuant to s. 5(6) of the Act of 2000.

13. Paragraph 10 of the Grounds of Opposition in the respondents’ notice recites that Grounds of Appeal 6 to 8 are not properly before the Court since the High Court had refused the application for a certificate for leave to appeal pursuant to s. 5(6)(a) of the Act of 2000. That an appeal may be lawfully brought under Grounds of Appeal 1 to 5 without that certificate being granted did not relieve the appellants of the necessity to obtain that certificate in order to rely upon Grounds of Appeal 6 to 8.

14. Since the second named respondent’s decision of 29 November 2022 is a decision of the International Protection Appeals Tribunal for the purposes of s. 46(3) of the Act of 2015, its validity may be challenged only by way of an application for judicial review. That procedure is governed by s. 5(6)(a) of the Act of 2000, which provides that:

The determination of the High Court of an application for leave to apply for judicial review to which this section applies, or of an application for such judicial review, shall be final and no appeal shall lie from the decision of the High Court to the Supreme Court in either case except with the leave of the High Court which leave shall only be granted where the High Court certifies that its decision involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken to the Supreme Court.

15. In engaging with the construction of this provision, I am guided by the approach the Supreme Court endorsed at paras. 111 – 116 of the judgment of Murray J. (nem. diss.) in Heather Hill Management Company CLG & McGoldrick v. An Bord Pleanála [2022] IESC 43. For the reasons contained in those paragraphs, the starting point for that exercise is to examine the text of s. 5(6)(a) of the Act of 2000. The words used represent that the High Court’s determination of an application for judicial review is final, and that no appeal shall lie from that decision to the Court of Appeal, which constitutes a statutory exception to the appellate jurisdiction of the latter court as described at Art. 34.4.1° of the Constitution of Ireland. Subject to the exception contained in s. 5(6)(a) of the Act of 2000, the terms of that provision clearly provide that a High Court judgment and order in respect of any part of an application for judicial review to which s. 5(6)(a) of the Act of 2000 applies are final and unappealable. Unless the appellants can bring themselves within the exception discussed in the next paragraph of this judgment, this Court has no jurisdiction to entertain this appeal in so far as it concerns the challenge to the High Court’s determination to refuse to quash the

decision of the second named respondent of 29 November 2022 made in the exercise of its powers under s. 46(3)(a) of the Act of 2015.

16. Section 5(6)(a) of the Act of 2000 allows for an exception to the finality of the High Court’s decision under that provision: where that Court grants leave to appeal which it may do only where it certifies both of the matters set out in that sub-section. The High Court expressly declined to grant a certificate in respect of that part of the application for judicial review that sought to quash the second named respondent’s

decision of 29 November 2022 made under s. 46(3)(a) of the Act of 2015, which proceedings are governed by s. 5(6)(a) of the Act of 2000. The effect of the High Court’s refusal to grant leave to appeal is to make its determination upon that part of the proceedings final and unappealable. As a consequence, this Court has no jurisdiction to entertain any appeal against that part of the High Court’s judgment and order as pertains to the decision of the second named respondent. Insofar as the appellants might seek to rely upon the further exception in s. 5(6)(b) of the Act of 2000, which reads that sub-section (6) “…shall not apply to a determination of the High Court in so far as it involves a question as to the validity of any law having regard to the provisions of the Constitution’, I do not understand that the case advanced on their behalf contains a challenge to the validity of a law having regard to the provisions of the Constitution of Ireland.

17. My interpretation of s. 5(6)(a) of the Act of 2000 is supported by the judgment in Irish Asphalt Ltd. v. An Bord Pleanála [1996] 2 I.R. 179, which Counsel for the respondents opened to the Court. There the Supreme Court interpreted s. 82(3B)(b) of the Local Government (Planning and Development) Act 1963, inserted by s. 19(3) of the Local Government (Planning and Development) Act 1992, which was expressed in terms almost identical terms to those in the sub-section under consideration, namely that:

The determination of the High Court of an application for leave to apply for judicial review as aforesaid or of an application for such judicial review shall be final and no appeal shall lie from the

decision of the High Court to the Supreme Court in either case save with the leave of the High Court which leave shall only be granted where the High Court certifies that its decision involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken to the Supreme Court.

18. At p. 185 of the report, Barrington J. stated that the first part of that provision had the effect of excluding all appeals from the High Court to the Supreme Court of decisions that the former made in the questions of judicial review to which it applied. The second part created “an exception to the exception” which operated only where the High Court issued the certificate described in the sub-section. On the page following, Barrington J. cited Attorney General v. Murray (No. 2) [1926] I.R. 300, in which case the Supreme Court had declared, by reference to similar terms used in s. 29 of the Courts of Justice Act 1924, that it had no jurisdiction to grant such a certificate, the Oireachtas having conferred the exclusive jurisdiction to do so upon the High Court. He concluded by observing that his interpretation of s. 82(3B)(b) of the Local Government (Planning and Development) Act 1963, as accorded with what appeared to have been the policy of the legislation that had amended it, namely the Local Government (Planning and Development) Act 1992.

19. A Court that has no jurisdiction to enter into and determine a matter by reference to the plain words of a statute, as is the case here, is not in a position to assume such jurisdiction by reference to factors such as judicial efficiency, the necessity to provide an effective remedy or the fairness of that procedure. It is true, as Counsel for the appellants said, that in principle there is a right of appeal from decisions of the High Court to the Court of Appeal and/or the Supreme Court. It is also true that any ambiguity in legislation that seeks to cut down that right is to be interpreted narrowly. The terms in which s.5(6)(a) of the Act of 2000 are expressed leave no room for doubt that this Court does not have jurisdiction to embark upon the hearing of an appeal against a decision to which that sub-section applies and that the decision of the High Court in that respect is final unless it grants leave to appeal against that

decision, which it declined to do. The analogy that Counsel for the appellants sought to draw with the line of authority that commenced with the obiter observation of Walsh J. in The People (Attorney General) v. Giles [1974] I.R. 422 at 430, to the effect that “[o]nce a certificate was granted the gate to an appeal was opened and issues other than the certified ground of appeal could be argued on the appeal.” does not apply in the absence of a High Court certificate. The legislative intention behind s. 5(6)(a) of the Act of 2000 would also be set at nought if an applicant, by the expedient of combining in a single application a challenge to the validity of a number of measures by way of judicial review, could side-step the application of that provision to an appeal against a High Court decision on the validity of a measure mentioned in s. 5(1) of the Act of 2000.

III. Standing/ius tertii to advance Grounds of Appeal 1 to 5

20. Grounds of Appeal 1 to 5 constitute the residue of the appeal before this Court. It was submitted on behalf of the respondents, in both the High Court and in this appeal, that the applicants lack the requisite standing to challenge the first named respondent’s decision to designate South Africa as a safe country of origin, by reason of which they also have no standing to raise issues as to validity of such steps as may or may not have been taken to review and/or to maintain that designation. The respondents in effect contend that the designation of South Africa as a safe country of origin had no impact upon the manner in which the applications for international protection were heard and determined. The appellants submitted their appeals to the second named respondent in time and do not contend that they suffered any prejudice on that account. The second named respondent afforded the appellants the benefit of an oral hearing in the interests of justice. It did not require the appellants to submit serious grounds for considering South Africa not to be a safe country of origin in their particular circumstances and in terms of their eligibility for international protection, as s. 33(b) of the Act of 2015 requires. As appears from paras. 3 to 6, above, when it examined and determined the appellants’ claims, the second named respondent disregarded the designation of South Africa as a safe country of origin and approached the issues before it without reference thereto. The second named respondent accordingly considered the appellants’ claims on their merits, as if they had been presented with respect to a country of origin not designated as safe. Confirmation of that is contained in the second named respondent’s finding that, were the appellants to return to South Africa, they would benefit from state protection within the meaning of s. 31 of the Act of 2015. Since the appellants’ claims had been considered and determined without reference to the designation of South Africa as a safe country of origin, the arguments that they now seek to advance in order to impugn the validity of that designation are in the nature of a ius tertii.

21. Paragraph 77 of the judgment under appeal found that the appellants were “…not yet … prejudiced by the application of the safe country of origin designation because they have been afforded an oral hearing and their cases for refugee status have been rejected based on a finding on the facts of their cases that State Protection is available, …” The learned High Court judge nonetheless proceeded to hold that the appellants had standing to challenge the lawfulness of the designation because “…the process is not at an end for…” them. First, were the appellants to succeed in the proceedings on the basis that the second named respondent’s

decision was unsustainable, their applications could be remitted for fresh consideration without any guarantee that they would be re-examined in like fashion. Second, para. 78 of the judgment under appeal apprehends that the safe country of origin designation might carry some weight in the first named respondent’s assessment of any future applications that might be made under s.49 of the Act of 2015 for leave to remain and/or the application of the prohibition on refoulement under s.50 thereof. For these reasons the High Court concluded that the appellants had standing to challenge the validity of the designation of South Africa as a safe country of origin and the manner in which the first named respondent had reviewed and maintained it.

22. As Walsh J. observed “…the question of what is a sufficient interest is to be determined having regard to the circumstances of each case.”: State (Lynch) v. Cooney [1982] I.R. 337, 369, citing R. v Inland Revenue Commissioners, ex p Federation of Self-Employed [1982] A.C. 617, 659, where Lord Roskill held that sufficient interest “…appears to be a mixed question of fact and law; a question of fact and degree and the relationship between the applicant and the matter to which the application relates, having regard to all the circumstances of the case.”

23. The learned High Court judge’s finding to the effect that the designation of South Africa as a safe country of origin played no role in the procedure that led to the second named respondent’s decision was not challenged in this appeal and therefore stands. Whilst it may be strictly speaking unnecessary to do so, I observe that the exercise of the power under s. 72 of the Act of 2015 to designate a country as safe usually results in the application of certain expedite procedures to applications for international protection by persons who originate therefrom: the application is otherwise assessed in like manner as any other such application. Depending upon the circumstances that come to its attention, the second named respondent may nevertheless decide to consider such an application without recourse to the expedients that statute permits. The second named respondent’s decision, referenced at paras. 3 to 6, above, demonstrate that this is what occurred here. I am therefore of the view that the High Court’s finding, that the designation of South Africa as a safe country of origin played no role in the procedure that led to the second named respondent’s decision, is correct.

24. As a consequence of the foregoing, the appellants’ standing to challenge the validity of the designation of South Africa as a safe country of origin and the renewal/maintenance thereof, falls to be considered by reference to the two considerations that the High Court judge advanced to support her ruling on that issue.

25. The first consideration, that a reconsideration of the appellants’ claims might be conducted by reference to the designation of South Africa as a safe country of origin, no longer exists by reason of the fact that the High Court dismissed the appellants’ challenge to the second named respondent’s decision of 29 November 2022, which determination has become final by operation of s. 5(6) of the Act of 2000. Whatever standing that the appellants may have enjoyed by reference to that consideration at the date of delivery of the High Court judgment on

22 March 2024 evaporated upon that Court making its order of 13 November 2024. The second named respondent’s decision having become final the appellants are not in a position to challenge its validity, whether by way of an order impugning the designation of South Africa as a safe country of origin or otherwise.

26. I would add that para. 68 of the judgment of the Court of Justice of the European Union delivered on 1 August 2025 in Joined Cases C-758/24 & C-759/24 Alace & Canpelli (EU:C:2025:591), in which Advocate General Richard de la Tour delivered an Opinion (EU:C:2025:260) to which the parties drew this Court’s attention at the hearing of the appeal, requires that the designation of a country as safe must “… be subject to judicial review as regards compliance with the material conditions for such a designation, …, by any national court or tribunal hearing an action brought against a decision taken on an application for international protection, which had been examined under the special scheme applicable to applications lodged by applicants who are from third countries designated as safe countries of origin.” Since the High Court held that the appellants’ applications had not in fact been examined under “the special scheme applicable to applications lodged by applicants who are from third countries designated as safe countries of origin”, that judgment is of no assistance to the appellants.

27. The second consideration is that the safe country of origin designation might carry some weight in any assessment that the first named respondent may be called upon to make when considering other applications that the appellants might submit under various provisions of the Act of 2015. In other words, the High Court should rule on the validity of the designation of South Africa as a safe country of origin since, in the event that the applicants were to make certain applications in the future, the first named respondent might take that designation into account when it decided upon them. Neither this Court, nor the High Court, is in a position to speculate as to what, if any, applications the appellants might make to the first named respondent after the final determination of their failed challenge to the validity of the second named respondent’s decision of 29 November 2022. Nor is either Court in a position to foresee what matters the first named respondent might take into account in determining whatever applications the appellants might submit. Nor has either Court been addressed as to the matters the first named respondent may be entitled to have regard to in the determination of such putative applications.

28. In circumstances where their challenge to the validity of the

decision of the second named respondent has been conclusively dismissed, the subsisting relationship between the appellants and the

decision of the first named respondent that they seek to challenge in this appeal is too remote as to confer standing upon them to contest the latter’s validity. I adopt, in that regard, the respondents’ submission to the effect that it is the very definition of a ius tertii for the appellants to claim that, since the designation of South Africa as a safe country of origin might be material to another set of factual circumstances that did not exist throughout the currency of these proceedings, they have standing to challenge that designation. That the appellants might have had standing to challenge a decision that the second named respondent might have made, but did not make, in reliance upon certain procedures that might have been applied as a consequence of the designation of South Africa as a safe country of origin, does not give them standing to challenge decisions that the first named respondent might take in the future under other provisions of the Act of 2015, in respect of which that designation may even be irrelevant.

29. For these reasons I conclude that, in the light of the High Court’s finding that, as a consequence of the procedures that the second named respondent applied to the making of its decision of 29 November 2023, the appellants did not have standing to challenge the designation of South Africa as a safe country of origin and the manner in which the first named respondent reviewed and/or maintained it, such standing as it was prepared to afford them was conditional upon the contingencies it had identified in its judgment. Whatever validity that the first contingency may have enjoyed on date of the delivery of that judgment had disappeared by the time that this appeal was lodged. Having regard to all of the circumstances of the case, the second contingency is so far removed from the relationship between the applicant and the matter to which the application relates as not to constitute the sufficient interest in the proceedings that R.S.C. Ord. 84, r. 20(5) requires to allow the Superior Courts to grant relief by way of judicial review.

IV. Conclusion

30. By reason of the foregoing, I propose that the Court dismiss the appeal in its entirety and allow the respondents’ cross-appeal against that part of the High Court order that held that the appellants had standing to maintain these proceedings.

31. The default position under s. 169(1) of the Legal Services Regulation Act 2015 is that a party that has been entirely successful in proceedings is entitled to an award of costs against the unsuccessful party unless the court hearing the matter orders otherwise. In view of the conclusion that I have reached as to the outcome of this appeal, I am of the provisional view that the respondents are entitled to an order against the appellants for the costs of the proceedings before this Court, to include any reserved costs. Should the appellants disagree with that proposed order, they should cause to have filed and served a written submission of not more than 1,500 words within 14 days of the delivery of this judgment, after which the respondents will have a further 14 days in which to respond by the lodgment and service of a reply of no greater length.

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

Appearances:

For W.P.L. & B.P.: Eamonn Dornan, instructed by BKC Solicitors

For the Respondents: David Conlan Smyth SC and Mark William Murphy, instructed by the Chief State Solicitor