Court dismisses asylum appeals where general homelessness risk in Greece does not prove individual real risk of return.

AN CHÚIRT ACHOMHAIRC THE COURT OF APPEAL

Court of Appeal Record Numbers: 2025 68 & 2025 69 High Court Record Numbers: 2024/23 JR & 2024/63 JR Neutral Citation Number: [2025] IECA 203

Pilkington J. Hyland J. Collins J.

BETWEEN/ A.A.H.

APPLICANT/APPELLANT

- AND -

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

RESPONDENTS

AND BETWEEN/ M.H.A.

APPLICANT/APPELLANT

- AND -

THE INTERNATIONAL PROTECTION APPEALS TRIBUNAL AND THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENTS

JUDGMENT of Mr. Justice Anthony M. Collins delivered on the 15th day of October 2025

I. Factual Background

1. The factual background to these appeals is set out in detail at paras. 7 to 37 of the High Court judgment (Phelan J.) delivered on 6 December 2024 ([2024] IEHC 699). Since the parties do not contest the accuracy of what is stated therein, I hereby adopt same and refer the reader thereto for any details that do not appear below.

2. The appellants, A.A.H. and M.H.A., are nationals of the Federal Republic of Somalia. They entered the State at different dates in the Spring of 2022 and both applied for international protection. After separate interviews, in the course of which they each disclosed their movements from Somalia to Ireland, including stays of, respectively, nine and seventeen months in the Hellenic Republic (hereafter ‘Greece’), the International Protection Office (hereafter ‘IPO’) made requests for information of the authorities of that Member State under Art. 34 of Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (recast) (OJEU L 180, p. 31, hereafter ‘the Dublin III Regulation’). The IPO was informed that A.A.H. had applied for international protection in Greece on 23 March 2021, had been granted refugee status on 23 April 2021, issued with a residence permit (hereafter ‘ADET’) valid from 5 May 2021 to 4 May 2024 and a travel document valid from 7 October 2021 to 6 October 2026. With respect to M.H.A., the IPO was informed that he had applied for international protection in Greece on 24 December 2019, was granted refugee status on 2 June 2020, issued with an ADET valid from 18 June 2020 to 17 June 2023 and a travel document valid from 19 October 2022 until 18 October 2025.

3. After having conducted admissibility consideration interviews with both appellants, on 26 June 2023 (in A.A.H.’s case), and on 5 July 2023 (in M.H.A.’s case), respectively, the IPO issued reports and recommendations to the second named respondent pursuant to s. 21(4) of the International Protection Act 2015 (hereafter ‘the Act of 2015’). These expressed the opinion that the appellants’ respective applications for international protection were inadmissible on the ground that they had obtained international protection in Greece, by reason of which both of them met the terms of s. 21(2)(a) of the Act of 2015. After consideration of the submissions made on their behalf, the said reports concluded that the return of A.A.H. and M.H.A. to Greece would not violate their rights under Art. 4 of the Charter of Fundamental Rights of the European Union (hereafter ‘the Charter’).

4. The first named respondent received appeals against each of these recommendations and upon consideration thereof affirmed same by decisions of 11 December 2023 (in A.A.H.’s case) and of 12 November 2023 (in M.H.A.’s case). By letter of 4 December 2023, the second named respondent informed M.H.A. that she deemed his application for international protection inadmissible under s. 21(11) of the Act of 2015 and that she would make a Return Order in respect of him under s. 51(a), subject to s. 50(a) thereof. A letter in identical terms issued to A.A.H. on 19 January 2024. Separate applications for judicial review seeking to question the validity of the said decisions of the first and second named respondents were commenced thereafter.

II. The High Court Judgment

5. On 6 December 2024, the High Court (Phelan J.) delivered a single judgment in respect of both applications. Having addressed a number of preliminary issues of no concern to this Court, at paras. 102 to 135 of her judgment she examined the Common European Asylum System (hereafter ‘the CEAS’). She observed, at para. 106, that the CEAS, relying on the fundamental EU law principle of mutual trust, by which Member States must consider that all other Member States comply with EU law, confers responsibility for an application for international protection on a single Member State. EU law does not, accordingly, permit a beneficiary of international protection to make such an application on the same grounds, in a second Member State. Where an individual who has sought or obtained international protection in a Member State may be exposed to the risk of his or her fundamental rights being violated in that Member State, he or she may, in certain limited circumstances, be entitled to seek international protection in another Member State.

6. At paras. 118 to 132 of her judgment, Phelan J. examined the judgment of the Court of Justice of the European Union (hereafter ‘Court of Justice’) delivered in Joined Cases C-297/17, C-318/17, C- 319/17 & C-438/17, Ibrahim & Others, EU:C:2019:219 (hereafter ‘Ibrahim’). That reference for preliminary ruling engaged the interpretation of Art. 33(2)(a) and Art. 52, first para., of Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection (OJEU L 180, p. 60, hereafter ‘the Recast Procedures Directive’), and of Arts. 4 and 18 of the Charter. The Bundesverwaltungsgericht asked whether Art. 33(2)(a) of the Recast

Procedures Directive precluded a Member State from rejecting an application for the grant of refugee status as inadmissible on the ground that another Member State, where the living conditions of persons granted subsidiary protection were alleged to be in breach of Art. 4 of the Charter, had already afforded that person subsidiary protection. The referring court also queried whether the same applied in circumstances where persons granted international protection in that other Member State did not receive any subsistence allowance or where the level of that allowance was markedly inferior to that received in other Member States.

7. I cite the relevant passages from Ibrahim at para. 24, below. At para. 135 of her judgment, the learned trial judge concluded her analysis of Ibrahim and the case law associated therewith in the terms following:

Several generally applicable principles may usefully be identified in the above caselaw in guiding the application of the test identified in Ibrahim as follows:

(i) The starting point of any analysis is that the CEAS creates a presumption of mutual trust to the effect that all Member States will treat beneficiaries of international protection in accordance with the Charter, Geneva Convention and European Convention on Human Rights, which is a foundational EU law principle of constitutional significance;

(ii) The burden of proof in rebutting that presumption rests with an applicant alleging a real risk of a breach of his fundamental rights: for a national tribunal to conclude, contrary to the presumption just referenced, that there is in fact a “serious risk of suffering … treatment” contrary to Article 4 of the Charter in a Member State having granted protection, depends on the existence of “evidence produced by the applicant in order to establish the existence of such a risk” [Ibrahim at para. 88];

(iii)In terms of what must be established by an applicant, the bar is set particularly high: deficiencies in a Member State allegedly giving rise to such a risk “must attain a particularly high level of severity, which depends on all the circumstances of the case” [at para. 89];

(iv) Even a “high degree of insecurity” or a “significant degradation of the living conditions” are insufficient to establish the relevant risk, unless they “entail extreme material poverty placing that person in a situation of such gravity that it may be equated with inhuman or degrading treatment” [at para. 90].

(v) Any disparity in the subsistence allowance for beneficiaries of international protection as compared with Member State nationals does not establish the relevant risk, unless “because of [the applicant’s] particular vulnerability, irrespective of his or her wishes and personal choices”, he/she is placed in such a situation of “extreme material poverty” [at para. 93].

(vi) A risk may be systemic, i.e. applicable to all, or individualised, i.e. applicable to an applicant.

(vii) Absent the, hopefully, very unusual situation whereby conditions in an EU Member State have broken down so systemically that a beneficiary of international protection would face a breach of fundamental rights merely by virtue of being present in the State granting them protection – an example given by Advocate General Emiliou in the analogous case of C-563/22 S.N. & L.N. [EU:C:2024:33] [at para. 81] being a situation of gravity created by “an armed conflict or a military blockade or … an ‘unprecedented humanitarian crisis’” [at para. 81] – then the analysis must be individualised, examining whether (for example) the applicant belongs to a “particularly vulnerable group” for whom general living conditions are incompatible with Article

4 of the Charter, even though they are not so for others, or whether the applicant is somehow “specifically affected … because of his personal circumstances” [S.N. & L.N., at paras. 84 and 90];

(viii) For this reason, Ibrahim demands a consideration of the individual circumstances of an applicant granted protection in another Member State and who claims that their fundamental rights will nonetheless be breached if returned there, and any particular vulnerabilities experienced by that applicant;

(ix) It is therefore appropriate for the decision-maker to weigh both an applicant’s evidence, and also objective country information before coming to a conclusion on the ultimate issue of whether there is “a real risk” of a breach of Article

4 of the Charter facing that applicant on return;

(x) Case-law subsequent to Ibrahim has underlined the requirement for a “real and proven risk” of a breach of Article 4 of the Charter. In [Joined Cases C‑228/21, C‑254/21, C‑297/21, C‑315/21 and C‑328/21,] DG & Ors.

[EU:C:2023:934] the CJEU stated that a pleaded risk of a breach of Article 4 of the Charter depends on establishing either “substantial grounds for believing that there are systemic flaws in the Member State” concerned or, alternatively, that “the transfer … might entail a real and proven risk that that person will, as a result, be subjected to inhuman or degrading treatment within the meaning of that article”.

8. At paras. 136 to 145 of her judgment, the learned trial judge held that, notwithstanding the terms of s. 21(2)(a) of the Act of 2015, which provide that an application for international protection is inadmissible where another Member State has afforded international protection to that individual, both the IPO recommendations and the impugned decisions identified the correct legal test, as summarised at para. 7, above, such as to occasion no breach of the appellants’ rights in the course of the processes that led to the adoption of those decisions. At para. 146, Phelan J. concluded that the first named respondent had correctly identified that Ibrahim applied in both cases. In her view, the complaints agitated on behalf of the appellants turned in large part on the correct approach to the application of that test in their individual circumstances.

9. Paragraphs 147 to 166 of the judgment under appeal thus examine the various criticisms of the impugned decision as were advanced on M.H.A.’s behalf. The trial judge observed at para. 150 that the decision was a detailed application of Ibrahim to the facts before the first named respondent in circumstances where M.H.A. had made no real attempt to provide information particular to his personal experiences as a beneficiary of international protection in Greece. At para. 163, she held that an applicant who did not suffer from physical or mental incapacities and who offered no objective evidence of having attempted to access available supports whilst living in Greece, could not successfully impugn a decision that took a comprehensive look at the evidential picture relating to the conditions in which beneficiaries of international protection in Greece lived and, after weighing that evidence, concluded that whilst some of those individuals may be at risk of poverty, the facts as presented did not show that he is at a real risk of extreme material poverty. That courts and tribunals in other Member States have refused to make admissibility decisions in other cases had no bearing upon the outcome of M.H.A.’s application, since “[e]ach case falls to be determined on the basis of the facts and circumstances of that case provided always that the correct legal test is applied, and the process is fair.” (para.

164 of the judgment under appeal). In those circumstances she held that it had been reasonably open to the first named respondent to have reached its decision on M.H.A.’s application.

10. Paragraphs 167 to 205 of the judgment under appeal examine the various criticisms of the impugned decision advanced on behalf of A.A.H. It was first asserted that the first named respondent had imposed an undue onus upon him to substantiate his claim, with reliance being had to the law governing the assessment of applications for international protection. The learned High Court judge held that those provisions did not apply to the determination of the admissibility of a claim, where the burden is on an applicant to show the presence of a serious risk of treatment contrary to Art. 4 of the Charter, as per Ibrahim.

The first named respondent had acted correctly when it required A.A.H. to provide clear and compelling evidence of living conditions in Greece and how they would impact upon his personal circumstances. A.A.H.’s claim was advanced almost exclusively by reference to generally available information on conditions in Greece, unsupported by evidence of his own experiences as a beneficiary of international protection in that Member State. The first named respondent assessed the risks facing A.A.H. in the light of the information presented to it, which material was sufficient to enable it to conclude that he would not run a real or serious risk of treatment contrary to Art. 3 of the European Convention of Human Rights (hereafter ‘ECHR’) were he to be returned to Greece.

Second, it was claimed that the first named respondent had failed to engage with and/or to consider properly decisions of courts in the Kingdom of Belgium, the Federal Republic of Germany and the Kingdom of the Netherlands (hereafter ‘Belgium’, ‘Germany’ and ‘the Netherlands’, respectively) to set aside inadmissibility decisions in respect of persons whom it was proposed to return to Greece. The learned High Court judge pointed out that those decisions had not been put before the first named respondent: insofar as such information had been provided it was in summary form; to attach any real significance to those decisions required a detailed consideration of their content and the precise legal and factual context in which they had been made.

In any event, whilst decisions of the courts of other Member States might be of some persuasive value where they are properly placed before a court, they are not precedents and could not displace the primary obligation on the first named respondent to assess the facts and circumstances of the case before it. Nor does the absence of such persuasive force constitute a breach of the principle of mutual trust in circumstances where certain Member States and ECHR Contracting States return to Greece persons who have been granted international protection in that Member State, there is no EU level decision to the effect that such returns cannot occur, and in every case EU law requires that an individual and personal assessment of risk be conducted.

Third, criticisms that the first named respondent failed to consider any medical issues affecting A.A.H. or of a possible interference in his private life were unjustified, not least because he had advanced minimal evidence on those matters. Fourth, the first named respondent had sufficient material before it upon which it could lawfully conclude that A.A.H. did not satisfy Ibrahim. Paragraph 204 of the judgment under appeal concluded that since A.A.H. referred to no particular vulnerabilities that had impacted upon his ability to access resources and offered no basis for believing that he had attempted to find employment or to access available supports while living in Greece, he was not in a position to impugn a decision that took a comprehensive look at the evidential picture relating to beneficiaries of international protection in Greece and, after conducting that examination, concluded that while there may be some risk of poverty for international protection beneficiaries in Greece, the facts of his case disclosed that he was not at a real risk of extreme material poverty.

A.A.H. had therefore identified no error of legal principle as to warrant the grant of relief by way of judicial review.

11. At paras. 206 to 230, the learned High Court judge examined the appellants’ complaints as to the absence of adequate procedural safeguards by reason of the first named respondent’s failure to afford them an oral hearing. After a consideration of the Court of Justice judgment in Case C-517/17 Addis v. Bundesrepublik Deutschland, EU:C:2020:579, and leaving to one side the fact that Ireland had not opted into Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection (recast) (OJEU L 180, p. 60), Phelan J. held that the applicants were entitled to be heard in person as to why their applications for protection should not be treated as inadmissible by reason of protection status having been given in another Member State at some stage in the inadmissibility decision making process. In line with this case-law, the requirement for an oral hearing before the first named respondent arose only where a personal interview had not been conducted at an earlier point in the process. By reference to a number of authorities (A.D. v. Refugee Applications Commissioner [2009] IEHC 77, X.L.C. v. Minister for Justice, Equality and Law Reform [2010] IEHC 148, M.O.O.S. v. Refugee Applications Commissioner [2008] IEHC 399, Sen He v. Minister for Justice, Equality and Law Reform (Unreported, High Court, Hogan J.,

7 October 2011), SUN v. Refugee Applications Commissioner [2013]

2 I.R. 555 and Z.K. v. Minister for Justice [2023] IECA 254), she observed that the boundaries of fairness are dictated by what facts are to be proved and rejected in the absence of an oral procedure. That required a consideration of the relevant facts, the issues that the first named respondent had to determine to resolve the appeal and whether that resolution necessitated an oral hearing as a matter of fairness.

12. At paras. 223 to 230 of her judgment, the learned trial judge observed that A.A.H. was unable to point to any element of his case that could only have been advanced fairly by way of an oral hearing, as distinct from him providing information to the decision maker. The first named respondent had not rejected his account due to a want of credibility on his part, but had simply found that he had not discharged the burden of proof upon him to establish that he would face a real risk of extreme material poverty in Greece that amounted to a breach of Art. 4 of the Charter. Recalling that the primary purpose of an oral interview where credibility issues do not arise, as was the case here, is to allow for the provision of relevant information, the learned trial judge was satisfied that A.A.H. had been afforded sufficient opportunity during the process, which included an oral stage, to give information relevant to the assessment of admissibility, by reason of which the absence of an oral hearing before the first named respondent did not infringe EU law. Paragraphs 231 to 234 of the judgment under appeal further dismissed A.A.H.’s plea that s. 21(7) of the Act of 2015 is unconstitutional, because it precludes an oral hearing before the first named respondent in all circumstances, in the absence of any grounds advanced to support it.

13. At paras. 235 to 254 of the judgment under appeal, the learned trial judge considered whether the appellants had been afforded sufficient opportunity to provide all of the information relevant to the assessment of the admissibility of their claims. The existence of any obligation to seek further information turned on the questions as to whether the appellants had had an adequate opportunity to put relevant information before the first named respondent and/or to address matters adverse to their interests that the first named respondent had intended to rely upon and that the appellants could not have anticipated and were otherwise unknown to them. The denial of either opportunity then raised the issue as to whether that information or those submissions were potentially capable of affecting the outcome of the process, such that the resulting decision might be quashed.

14. In A.A.H.’s case, the IPO report had considered information in relation to living conditions, medical care, access to education and training programmes, social assistance and access to the labour market in Greece before concluding that he had not shown a real risk of a breach of his rights under Art. 4 of the Charter in the event of his return there. A.A.H.’s submissions to the first named respondent lodged by his solicitors made extensive reference to the IPO report without once elaborating on his own experiences. In those circumstances, he could not have been surprised that the first named respondent would consider the lack of evidence of his efforts to access accommodation, work, health services and financial support in Greece as relevant. The learned trial judge was therefore satisfied that the first named respondent was not required to ask further questions of A.A.H. where he had been afforded a reasonable opportunity to explain why he faced a risk of extreme material poverty that would amount to a breach of Art. 4 of the Charter in his circumstances. The learned trial judge reached an identical conclusion, on slightly different facts, with respect to M.H.A.

15. M.H.A. also challenged the lawfulness of the first named respondent’s reliance upon the European Union Agency for Asylum (hereafter ‘EUAA’) report on “Jurisprudence on Secondary Movements by Beneficiaries of International Protection” of June 2022 (hereafter ‘the EUAA Report’), in circumstances where he had not been given advance notice of that document as he claimed was required by ss. 21(7) and/or 46(8) of the Act of 2015.

16. At paras. 256 to 262 of the judgment under appeal, the learned trial judge first observed that Art. 11(3) of Regulation (EU) 2021/2303 of the European Parliament and of the Council of 15 December 2021 on the European Union Agency for Asylum and repealing Regulation (EU) No 439/2010 (OJEU L 468, p. 1) obliges Member States to take account of EUAA common analysis and guidance notes when examining applications for international protection, to which Ireland has opted-in: see Commission Decision (EU) 2023/1576 of 28 July 2023 confirming the participation of Ireland in Regulation (EU) 2021/2303 of the European Parliament and of the Council on the European Union Agency for Asylum (OJEU L 192, p. 32).

17. Second, she observed that it is long established that fair procedures do not require that publicly available, demonstrably relevant, country information which a decision-maker is obliged to consider must be specifically drawn to an applicant’s attention. The EUAA Report fell within that category of information and M.H.A. had put in issue case-law of courts and tribunals of other Member States. The learned trial judge observed that, in this context, M.H.A. did not rely on fair procedures but on the statutory protections that he claimed ss. 21(7) and 46(8) of Act of 2015 afforded him.

18. Third, she found that it was not immediately clear from the text of those provisions if the information to which it referred must be furnished in advance of the delivery of a decision by the first named respondent or that it suffices to refer to that information in the body of its decision. The reference to the EUAA Report in the impugned

decision met the latter requirement and the location of s. 46(8) of the

Act of 2015 after provisions that govern the making, and the notification, of a decision and the reasons for it, suggested that the information requirement does not apply prior to the delivery of a

decision. She nevertheless expressed the view that it would be strange the Oireachtas would prescribe a requirement to give notice of the nature and source of any other information relating to an appeal that came to the first named respondent’s notice at a point in time when it would be too late to make submissions in respect of that information.

19. Fourth, on her assumption that the legislature’s intention in enacting s.46(8) of the Act of 2015 was that the information there referred to should be furnished so as to allow representations to be made with respect thereto before the first named respondent made a

decision, the learned trial judge found there had been what she described as technical non-compliance with that provision. As a matter of law, M.H.A. had been on notice that the first named respondent must have regard to EUAA reports. The EUAA Report was publicly accessible and available to M.H.A. and to his legal advisors. There was therefore no basis upon which it could be contended that the first named respondent’s reliance on the contents of the EUAA Report resulted in any substantive unfairness or injustice or had materially affected the fairness of the process so as to warrant the grant of relief by way of judicial review. M.H.A. had not identified any submission on the EUAA Report that he had been prevented from advancing to his detriment. The first named respondent had relied upon the EUAA Report in circumstances where M.H.A. had relied upon similar caselaw, albeit obtained through a different source and thus did not consider information that M.H.A. could not have anticipated. Nor had M.H.A. been prejudiced by the first named respondent’s conclusion that the courts and tribunals of different Member States had adopted different approaches to the issues raised and that it was under a duty to conduct an individualised assessment of his case. The High Court thus declined to quash the impugned decision by reason of the technical non-compliance with s. 46(8)(b) of the Act of 2015 it had identified.

20. For the reasons set out at paras. 263 to 271 of the judgment under appeal, the High Court dismissed M.H.A.’s claim that, in making the impugned decision, the first named respondent had failed to exercise its jurisdiction in a manner compatible with Arts. 40.1, 40.3 and 40.5 of the Constitution of Ireland. M.H.A. did not pursue his appeal against that finding before this Court.

III. Scope of Appeal

(a) First Certified Question

21. On 14 February 2025, the High Court certified under s. 5(6)(a) of the Illegal Immigrants (Trafficking) Act 2000 (hereafter ‘the Act of 2000’) that its determinations involved points of law of exceptional public importance and that it was desirable in the public interest that appeals be taken to this Court. It certified the following question in both proceedings:

Applying a standard of real risk in accordance with the decision in C-438/17 Ibrahim et al. v. Germany, was the Judge correct in law in finding that it was open to the Tribunal member to conclude that the Applicant had not established that his return to Greece would be in breach of Article 4 of the Charter notwithstanding evidence that there is a significant risk of homelessness and destitution for recognised asylum seekers generally in Greece but where the Applicant had not demonstrated factors individual to his case such as would put the Applicant personally at real risk?

22. The parties do not contest that the High Court correctly identified and described the test in Ibrahim; that that test applies to the appellants and that the first named respondent appreciated that test correctly: see para. 43 of the judgment under appeal. There is thus no dispute between them as to the necessity for a decision maker to carry out an individualised assessment of an applicant’s circumstances. What the first question appears to ask is whether an applicant may rely upon evidence of the general living conditions of persons granted international protection in a Member State in order to challenge an inadmissibility decision without demonstrating the existence of circumstances individual to him/her as to put that person at a real risk of 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.

23. In the notices of appeal filed on their behalf, the appellants contend that it is sufficient for them to show that they are members of a group of persons, described as “recognised asylum seekers generally in Greece”, who face a real risk of destitution, without their being required to show that either of them is at any particular personal risk of finding themselves in those circumstances. They submit that the information before the first named respondent that described the living conditions of beneficiaries of international protection in Greece provides ample support for the conclusion that, as members of that group of persons, they meet the Ibrahim requirements.

24. The following appear to be the relevant passages from Ibrahim:

88. …where a court or tribunal hearing an action brought against a decision rejecting a new application for international protection as being inadmissible has available to it evidence produced by the applicant in order to establish the existence of such a risk in the Member State that has previously granted subsidiary protection, that court or tribunal is obliged to assess, on the basis of information that is objective, reliable, specific and properly updated and having regard to the standard of protection of fundamental rights guaranteed by EU law, whether there are deficiencies, which may be systemic or generalised, or which may affect certain groups of people (see, by analogy, judgment of today’s date, Jawo, C‑163/17, paragraph 90 and the case-law cited).

89. In that regard, it must be stated that, if the deficiencies mentioned in the preceding paragraph of the present judgment are to fall within the scope of Article 4 of the Charter, which corresponds to Article 3 of the ECHR, and the meaning and scope of which is therefore, under Article 52(3) of the Charter, the same as those laid down by the ECHR, those deficiencies must attain a particularly high level of severity, which depends on all the circumstances of the case (judgment of today’s date, Jawo, C‑163/17, paragraph 91 and the case-law cited).

90. That particularly high level of severity is attained where the indifference of the authorities of a Member State would result in a person wholly dependent on State support finding himself, irrespective of his wishes and his personal choices, in a situation of extreme material poverty that does not allow him to meet his most basic needs, such as, inter alia, food, personal hygiene and a place to live, and that undermines his physical or mental health or puts him in a state of degradation incompatible with human dignity (judgment of today’s date, Jawo, C‑163/17, paragraph 92 and the case-law cited).

91. That threshold cannot therefore cover situations characterised even by a high degree of insecurity or a significant degradation of the living conditions of the person concerned, where they do not entail extreme material poverty placing that person in a situation of such gravity that it may be equated with inhuman or degrading treatment (judgment of today’s date, Jawo, C‑163/17, paragraph 93).

92. Given the concerns of the referring court on this point, it must be made clear that, having regard to the importance of the principle of mutual trust for the common European asylum system, infringements of the provisions of Chapter VII of the Qualification Directive which do not result in a breach of Article 4 of the Charter do not prevent the Member States from exercising the option granted by Article 33(2)(a) of the Procedures Directive.

93. As regards the fact, also mentioned by the referring court, that those granted subsidiary protection do not receive, in the Member State which granted such protection to the applicant, any subsistence allowance, or that such allowance as they receive is markedly inferior to that in other Member States, though they are not treated differently from nationals of that Member State, that can lead to the finding that that applicant is exposed in that Member State to a real risk of suffering treatment that is in breach of Article 4 of the Charter only if the consequence is that the applicant is, because of his or her particular vulnerability, irrespective of his or her wishes and personal choices, in a situation of extreme material poverty that meets the criteria described in paragraphs 89 to 91 of the present judgment.

25. The description of the particularly high level of severity at paras.

89 to 91 of Ibrahim discloses that it does not automatically follow 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, means that his or her health is thereby undermined or that s/he is placed in a state of degradation incompatible with human dignity, either or both of which latter elements must be proven in order to demonstrate a real risk of a breach of Art. 4 of the Charter. For that reason alone the appellants’ individual circumstances must be assessed in order to determine whether they meet the Ibrahim test. That approach is reflected in the statement at para. 93 of Ibrahim that a finding that an applicant is exposed in a Member State to a real risk of suffering treatment in breach of Art. 4 of the Charter exists where, as a consequence, that person is, because of his or her particular vulnerability and irrespective of his or her wishes and personal choices, in a situation of extreme material poverty that meets the criteria described in paras. 89 to 91 thereof. In that context, the reference to vulnerability is shorthand for the possible consequences from which a person may suffer due to him or her being put in a situation of extreme material poverty. Since that assessment can be made only by reference to an individual (see my judgment in Irish Human Rights & Equality Commission v. Minister for Children, Equality, Disability, Integration & Youth [2025] IECA 156 at paras.

70 and 71 (nem. diss.), the appellants may not assert that information, no matter how compelling, that describes the living conditions of persons who are members of a group of persons to which they belong is itself sufficient to meet the Ibrahim test.

26. For the sake of completeness, I would add that, in the analogous context of the execution of European Arrest Warrants, which is also underpinned by the principle of mutual trust and may require a court of one Member State to assess the degree of respect for fundamental rights another Member State observes, the Supreme Court requires a person who seeks to resist such execution to demonstrate the concrete impact upon his or her individual circumstances: Minister for Justice, Equality and Law Reform v. Rettinger [2010] 3 I.R. 783; Minister for Justice and Equality v. Orlowski [2022] 2 I.R. 1, 43 per Dunne J. (nem.

diss.). Evidence of substantial grounds that demonstrate the existence of a real risk that an individual would suffer a breach of his/her fundamental rights must relate to that individual’s personal circumstances, in respect to which membership of an identifiable group may be relevant but is not determinative. As the learned trial judge rightly observed at para. 135 (vii) of her judgment, cited at para.

7 above, save perhaps in circumstances far removed from the backdrop to these appeals, that analysis must always be conducted by reference to a given individual and the circumstances in which s/he finds, or is likely to find, him or herself.

27. For the reasons explained in this part of the judgment, I propose that the Court answer the first question certified in both proceedings as follows:

Applying a standard of real risk in accordance with the decision in C-438/17 Ibrahim et al. v. Germany, the High Court was correct in law in finding that it was open to the Tribunal member to conclude that the applicant had not established that his return to Greece would be in breach of Art. 4 of the Charter notwithstanding evidence that there is a significant risk of homelessness and destitution for recognised asylum seekers generally in Greece but where the Applicant had not demonstrated factors individual to his case such as would put him personally at real risk.

(b) Second Certified Question

28. In the M.H.A. proceedings the High Court certified a second question under s. 5(6)(a) of the Act of 2000 in the terms following:

Does s. 46(8) of the International Protection Act, 2015 (read in the light of EU law) require that a decision be quashed where there has been a failure on the part of the Tribunal to disclose Country of Origin Information subsequently relied upon in its

decision before deciding on an application under the Act?

29. Section 46(8) of the Act of 2015 applies to appeals under s. 21(6) by virtue of s. 21(7), notwithstanding that each such appeal does not always engage every sub-section of s. 46. It provides that:

The Tribunal shall furnish the applicant concerned and his or her legal representative (if known), and the High Commissioner whenever so requested by him or her, with—

(a) copies of any reports, observations, or representations in writing or any other document furnished to the Tribunal by the Minister, copies of which have not been previously furnished to the applicant and his or her legal representative (if known), or as the case may be, the High Commissioner, and

(b) an indication in writing of the nature and source of any other information relating to the appeal which has come to the notice of the Tribunal in the course of an appeal.

30. M.H.A. submits that since the first named respondent did not furnish his legal representatives with a written indication of other information relating to the appeal, namely the EUAA Report, that had come to its notice in the course thereof, it failed to comply with s. 46(8)(b) of the Act of 2015, by reason of which its recommendation was unlawful and therefore invalid, without M.H.A. being required to demonstrate any consequences that flowed from such noncompliance. In the alternative, it is sufficient for M.H.A. to show that, had his advisors had sight of the EUAA Report prior to the determination of his appeal, the outcome might have been different. According to M.H.A., s. 46(8)(b) of the Act of 2015 is to be read as imposing a requirement upon the first named respondent to furnish the information to which it refers in sufficient time so as to enable a person in his circumstances to consider that material and to make submissions thereon. M.H.A. thus urges this Court to adopt the learned trial judge’s interpretation of s. 46(8)(b) of the Act of 2015 at paras. 259 and 260 of her judgment where she assumed that provision had been enacted in a manner as would allow representations to be made to the first named respondent with respect to such material prior to the determination of an appeal.

31. Before considering the merits of the submissions advanced on M.H.A.’s behalf, consideration ought to be given to the terms of the opening paragraph of the “Note” contained at page 9 of the EUAA Report:

The cases presented in this report are based on the EUAA Case Law Database which presents more extensive summaries of each case. The summaries cover the main elements of the court’s

decision. The full judgment is the only authoritative, original and accurate document, which should be consulted for the authentic text.

The EUAA Report contains hyperlinks to each of the judgments to which it refers. It might thus be said that the EUAA Report is not in the nature of information but is rather a compendium of references to judgments otherwise accessible to the general public. Nor can the EUAA Report be properly described as “Country of Origin Information” as per the question formulated for consideration by this Court since the appellants do not originate from Greece. Howsoever the EUAA Report is described, because that issue was not fully ventilated before this Court it will be assumed, for the purposes of this judgment, that the EUAA Report is “information” within the meaning of s. 46(8)(b) of the Act of 2015.

32. By its Long Title, the Act of 2015 states that it is enacted to restate and to modify certain aspects of the law relating to the entry and presence in the State of persons in need of international protection and to give effect to a number of EU Directives. For that purpose, s. 6 of the Act of 2015 repeals the Refugee Act 1996 and many of the regulations and orders made thereunder. Parts 2 to 5 of the Act of 2015 set out the steps to be taken in the adoption of a decision to afford international protection: qualification, application, assessment and examination at first instance. Part 6 is headed up “Appeals to Tribunal” and consists of six sections: ss. 41 (appeal to Tribunal), 42 (oral hearing), 43 (accelerated appeal procedures in certain cases), 44 (appeal to Tribunal: provision of information), 45 (withdrawal and deemed withdrawal of appeal to Tribunal) and 46 (decision of Tribunal on appeal). These provisions describe the sequence the Oireachtas anticipates the first named respondent will follow in the exercise of its appellate jurisdiction. In that context, s. 44 of the Act of 2015 requires that, for the purposes of an appeal under s. 41, the Minister for Justice and Equality shall furnish the first named respondent with copies of the documents provided to the applicant under s. 40; that the first named respondent may, for the purposes of its functions, request the said Minister to make such further inquiries and to furnish it with such further information as it considers necessary within such period as it may specify; and that at the first named respondent’s request the Minister shall furnish it with written observations concerning any matter that arises on the grounds of appeal and deliver a copy of such observations to the applicant and to his or her legal representative.

33. Section 46(1) of the Act of 2015 sets out the six matters that the first named respondent must consider before it exercises the decisionmaking powers that s. 46(2) to (5) confer upon it. These include all material relevant to the decision that the Minister for Justice and Equality furnished to it; any observations that the said Minister or the

High Commissioner made; where an oral hearing was held, the evidence adduced and such representations as were made thereat and such other matters as the first named respondent considers relevant to the appeal. By s. 46(6) the first named respondent’s decision under subs. (2) or (3) and the reasons for it shall be communicated to the applicant, his or her legal representative and to the Minister.

34. Turning to the text of s. 46(8)(b) of the Act of 2015, the provision requires the first named respondent to furnish the applicant and his legal representative with an indication in writing of the nature and source of any other information relating to the appeal that “has come” to its notice in the course thereof. The reference to information that “has come” to the first named respondent’s notice in the course of an appeal indicates that the requirement that provision makes of it applies at the conclusion, and not throughout the currency, of that procedure. It should also be observed that the requirement that section imposes appears after ss. 41 to 43, which describe the appeal procedure; s. 44, which expressly addresses the provision of information in the context of that procedure; s. 46(1), which prescribes what the first named respondent must take into account when it determines an appeal; and s. 46(6), which requires the first named respondent to communicate a reasoned decision to the appellant. The placement of that provision at the end of Part 6 of the Act of 2015 further supports an interpretation of s. 46(8)(b) according to which the Oireachtas intended that, after the first named respondent had reached its decision, it was obliged to indicate in writing the nature and source of any other information relating to the appeal – not limited to those matters that it considered relevant to its determination – that had come to its notice in the course thereof. Had the requirement in s. 46(8)(b) been designed to impose a procedural requirement upon the first named respondent in the course of the decision-making process, one might have anticipated that it would be located in s. 44 or at the very least prior to s. 46(6). It is also of interest to observe that the requirement s. 46(8)(b) demands of the first named respondent is to furnish an indication in writing of the nature and source of other information – not the information itself. It is not obvious how a person in M.H.A.’s circumstances could consider and make submissions upon a written indication of the nature and source of information, as distinct from that information. That consideration is a further indication that s. 46(8)(b) should not be interpreted in the manner for which M.H.A. contends.

35. By reference to the terms in which it is expressed and its location at the end of Part 6 of the Act of 2015, s. 46(8)(b) thus does no more than to impose a requirement on the first named respondent to furnish an applicant and his/her legal advisors with an indication in writing of the nature and source of any other information relating to an appeal that may have come to its notice in the course of resolving same. Contrary to what M.H.A. submits, the provision does not require the first named respondent to furnish the information to which it refers for the purpose of and in sufficient time to enable an applicant to consider and to make submissions thereon. The breadth of that requirement, which goes beyond information that the first named respondent considered relevant to its decision, indicates that the primary aim of s. 46(8)(b) is to ensure the transparency of the appeal process. It is thus does not designed to provide a statutory guarantee of fair procedures additional to those contained elsewhere in Part 6 of the Act of 2015. Where information that the first named respondent discloses in the discharge of its duty under s. 46(8)(b) turns out to have been relevant to the decision in some material particular and was not disclosed to an applicant in sufficient time as to enable him or her to make submissions thereon, an argument might be made that the decision was made in breach of fair procedures. That interpretation of s. 46(8)(b) does not appear to be contrary to EU law, nor was any argument advanced to that effect. I therefore prefer the initial interpretation of s. 46(8)(b) that the trial judge favoured at para. 258 of her judgment under appeal to that which she ultimately adopted, as summarised at paras. 18 and 19, above. For my part, I do not find it in the least strange that the Oireachtas decided to reinforce the transparency of the appeal process by the enactment of s. 46(8)(b), which amounts to an additional guarantee for applicants that the process which Part 6 of the Act of 2015 establishes is conducted in accordance with law.

36. Since the first named respondent did not breach s. 46(8) of the Act of 2015, the Court need not consider the consequences of the asserted non-compliance. Paragraph 257 of the judgment under appeal indicates that M.H.A. rested his case under this heading upon an alleged breach of a statutory requirement and not upon a want of fair procedures. In so far as M.H.A. may now seek to make both arguments, I endorse and adopt the reasoning in para. 261 of the judgment under appeal set out at para. 19, above, not least because no argument of substance has been advanced to contradict what appears there. I also observe that, insofar as the first named respondent took account of the EUAA Report, it seems to have been to support what the respondents correctly describe as the incontrovertible proposition that Member State courts and tribunals do not adopt a one size fits all approach towards returning beneficiaries of international protection to

Greece and that an individualised assessment is to be carried out in every case.

37. For the reasons given in this part of the judgment, I propose that this Court answer the second question that the High Court certified in the M.H.A. proceedings as follows:

Section 46(8)(b) of the International Protection Act, 2015 requires the International Protection Appeals Tribunal to indicate in writing the nature and source of any information relating to an appeal that has come to its notice in the course of that appeal once it has decided same.

(c) Other Grounds of Appeal

38. In Clinton v. An Bord Pleanála [2007] 1 I.R. 272, at 282, Denham

J. (nem. diss.), summarised a line of case-law commenced by 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.” On the same page of her judgment, Denham J. referred to C.S. v Minister for Justice [2005] 1 I.R. 343 as authority for the proposition that s. 5(3) of the Act of 2000, now s. 5(6) thereof, was amongst the provisions to which this approach applied.

39. The scope of this appeal thus may, and does, range beyond the questions certified. In that context the appellants seek to ventilate a number of issues, which I will address in turn. Before doing so, I observe that the thrust, if not the entirety, of these aspects of these appeals do not appear to be directed to perceived frailties in the High Court judgment but rather to alleged errors that the High Court allegedly declined to identify in the first named respondent’s decisions. As a consequence, in considering certain of these other grounds of appeal, I am content to rely upon the analysis of the learned High Court judge and the conclusions that she reached thereon.

40. The first heading alleges that the appellants were subjected to a flawed process. It is variously claimed that the first named respondent failed to discharge its inquisitorial function under s. 61(3) of the Act of 2015; to co-operate with the appellants in the investigation of their applications; to afford the appellants an oral hearing and to allow them to make out their case adequately. A further complaint is that the impugned decisions refer to, and are even based upon, matters of which they had had no prior notice.

41. Given the link between the first two of these issues I propose to address them together. Notwithstanding that they accept Ibrahim and the onus that test puts on applicants for international protection to displace the presumption that, in their treatment of those persons, Member States will comply with EU law, including the fundamental rights that it protects, the appellants appear to persist in the contention that when it decides that an application for international protection is inadmissible because another Member State has granted refugee or subsidiary protection status by reference to s. 21(2)(a) of the Act of 2015, the first named respondent must, in substance, carry out the same exercise as if it were deciding upon a de novo application for international protection and is consequently under a duty to co-operate with the persons concerned and to investigate their claims.

42. Ibrahim, in contrast, puts the onus on the person seeking to remain in a Member State other than that in which s/he had obtained international protection to produce evidence to establish the existence of a serious risk that s/he will suffer treatment contrary to Art. 4 of the Charter in that second Member State. That onus is in clear contradistinction to the duties that Art. 4(1) of Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted (OJEU L 304, p. 12, hereafter ‘the Qualifications Directive’) and Art. 8 of Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status (OJEU L 326, p. 13, hereafter ‘the Procedures Directive’) demand of Member States, reflected in s. 28 of the Act of 2015, when they consider applications for international protection. For the reasons that appear at paras. 169 to 175 of the judgment under appeal, I agree with the conclusion the learned High Court reached that the approach for which the appellants contend “is fundamentally misconceived”. To assert that the assessment of the appellants’ claims under Ibrahim must be conducted in a manner that is similar to or identical with the examination of applications for international protection is to misunderstand profoundly the genesis of that test as a judge-made exception designed to address the wholly exceptional circumstance where an individual can show a real likelihood that s/he will sustain a breach of a fundamental right due to the inaction of the authorities of a Member State that granted him or her international protection.

43. Paragraphs 206 to 222 of the judgment under appeal respond to the appellants’ arguments as to why both EU and Irish law required that, as a matter of principle, they were entitled to an oral hearing so as to facilitate the lawful assessment of their claims. At paras. 223 to 228, the learned trial judge applied those principles to the appellants’ circumstances pointing out, inter alia, that the credibility of their accounts of their experiences in Greece was not at issue. At para. 229 of her judgment she concluded that:

Recalling the prime purpose of an oral interview where no credibility issues arise is to allow for the provision of relevant information, I am satisfied that an opportunity was provided during the process, which includes an oral stage, to provide information that is relevant to the assessment of admissibility, no frailty arises as a matter of EU law by reason of the absence of an oral hearing before the Tribunal. Once an opportunity is afforded to the Applicants during the process to be heard in person as to why applications for protection on their behalf should not be found inadmissible because of the protection status accorded to them in Greece, the requirement giving rise to an oral hearing identified in Addis is met.

44. I approve and adopt the learned trial judge’s answer to the appellants’ claims that they were entitled to the benefit of an oral hearing before the first named respondent.

45. As for the argument that the impugned decisions refer to, and are even based upon, matters of which the appellants had no prior notice, I agree with the conclusion at para. 241 of the judgment under appeal that, given the nature of their applications, the content of the IPO recommendations and the appeals that were submitted on their behalf, the appellants cannot claim to have been surprised at the content of the impugned decisions. The appellants were, in particular, put on notice that the first named respondent would consider such evidence as they might adduce as to the efforts that they had made to access accommodation, employment, healthcare and financial support after they had been afforded international protection in Greece.

46. The onus Ibrahim imposes on persons in the appellants’ circumstances has consequences for the approach that they were required to take when they presented their applications to the IPO and to the first named respondent. At the admissibility interviews conducted pursuant to s. 13(2)(h) of the Act of 2015, the applicants were asked a number of open questions as to the circumstances in which they had lived in Greece after that Member State had afforded them the benefit of international protection. It fell to each of them to put forward such evidence as to their personal circumstances, difficulties and experiences in Greece as they wished to bring to the IPO’s attention. The learned High Court judge’s conclusion, at para.

245 of her judgment, that the first named respondent was not required to ask further questions of the appellants once they had been afforded a reasonable opportunity to explain why they faced a risk of extreme material poverty in breach of Art. 4 of the Charter in their individual circumstances and had failed to take that opportunity (see paras. 246 and 253 of the judgment under appeal, addressing A.A.H.’s and M.H.A.’s claims respectively) is a straightforward application of Ibrahim. The first named respondent cannot, moreover, be faulted for proceeding to decide the appeals on the basis of the materials and information that had been put before it.

47. The second heading brings together a number of what might be categorised as material errors in the decision that, if shown to have been made, are of such importance to the basis for the decision as to invalidate it. These include an allegation that the first named respondent applied the wrong test in its assessment of the availability of housing for beneficiaries of international protection in Greece; a failure to consider the operation in practice of the procedures for the issue of an ADET and the finding that the appellants were not “vulnerable” persons. Criticism, on a somewhat wider basis, is also made of the first named respondent’s alleged failure to engage with relevant case-law of the courts and tribunals of other Member States. These arguments are perhaps best addressed as they arise through the prism of the impugned decisions.

48. Each of these decisions contains an introduction, which sets out the facts as described by the appellant, a summary of the IPO report, the grounds of appeal and a list of the documents that, in M.H.A.’s case, his solicitor relied upon, and, in A.A.H.’s case, those upon which his solicitor and the IPO had relied. The first named respondent then refers to s. 21(2) of the Act of 2015 to reference the nature of the appeals. It recites the Ibrahim test and observes that the appellants had obtained the benefit of international protection in Greece. The first named respondent then proceeds to assess the issues raised in the grounds of appeal. It confirms that the question to be decided is whether the appellant has shown there are substantial grounds to believe that there is a real risk that, if returned to Greece, he will suffer treatment contrary to Art. 4 of the Charter/Art. 3 ECHR. Each of the appellants’ complaints are to be the subject of ‘close’, ‘independent’, ‘rigorous’ or ‘thorough’ scrutiny as per the case-law of the European Court of Human Rights (hereafter ‘the ECtHR’).

49. The first named respondent acknowledges that it must “…assess the objective situation in Greece in the context of the appellant’s personal circumstances.” The decisions describe the appellant’s qualifications and work experience in Ireland. In A.A.H.’s case it is noted that, whilst he states that he suffers from a medical ailment, he did not file a medical report.

50. The first named respondent observes that each of the appellants obtained an ADET. The decisions then set out what they describe as “a series of difficult steps” that must be undertaken for that purpose. That the appellants had obtained an ADET and a travel document from the Greek authorities demonstrated, in the view of the first named respondent, “… the capacity to navigate the somewhat complicated bureaucratic structures in Greece”. Relying upon information on conditions in Greece, the first named respondent proceeds to find that whilst both appellants need to renew their ADETs in order to obtain a social security number (hereafter ‘AMKA’) and to access social benefits, they are in a more favourable position since renewal of the former can be done by e-mail unlike the procedure to obtain that document for the first time. The first named respondent concludes that because the appellants are literate, able-bodied persons who were able to navigate the administrative hurdles to obtain an ADET they have the capacity to apply for and to obtain an AMKA. The appellants had not submitted reports to show that they suffer from any mental or physical incapacity that would prevent them from doing so.

51. The appellants criticise these findings on a number of grounds. They claim that the first named respondent wrongly assumed that the process to obtain an ADET as described in the various reports is the same as that which they navigated at the time they obtained their respective ADETs is, in my view, correctly dismissed by the learned High Court judge at para. 153 of the judgment under appeal on the basis that the appellants offered no evidence to the first named respondent to suggest there is a material difference between the process for obtaining and for renewing an ADET or why they would be unable to navigate the second procedure having been able to navigate the first.

52. There was, nevertheless, a significant amount of material before the first named respondent that tended to show that the system for the renewal of ADETs is replete with problems. The Aida Country Report on Greece, 2022 Update, published by the Greek Council for Refugees (hereafter ‘the Aida Report’), is exhibited in full at para. 5 of the affidavit made by Mr. John Moore, Higher Executive Officer at the Department of Justice on 20 June 2024. Under the rubric “Content of International Protection”, Part A (Status and residence), 1 is headed up “Residence permit”. Page 222 of the Aida Report states that, without an ADET “beneficiaries of international protection have no access to health care or the labour market for many months.” The page following states that the Greek Council for Refugees observes that, in a number of renewal cases, the waiting period for the issue of an ADET can often last up to nine months. Pending the issue of a new ADET, beneficiaries of international protection are granted a certificate of application: that document issues only once the renewal application has been uploaded to the ALKYONI electronic system, which latter step can take up to four months from the date of submission of a renewal application. It further appears that the certificate of application does not have the same standing as an ADET, with the result that holders of such certificates may encounter difficulties in access to the labour market, social welfare and public healthcare. At p. 224, the Aida Report notes that beneficiaries are simply informed by e-mail that the renewal of their ADET has been accepted and of the procedure that they must follow to obtain it. That procedure is the same as for the delivery of the initial ADET, with the consequence that beneficiaries must consult the list of those case numbers for which the renewed ADET is available for collection as published on the Aliens’ Directorate web site. Since the list of renewed ADETs appears on the same segment of the website as ADETs issued for the first time there is scope for considerable confusion which can manifest itself by beneficiaries consulting the wrong lists and missing appointments of which they were unaware.

53. In a supplemental affidavit made on 3 October 2024, Mr. Moore exhibits a copy of a report entitled “Beneficiaries of international protection in Greece: Access to documents and socio-economic rights”, March 2023, published by Refugee Support Aegean and the Stiftung PRO ASYL (hereafter ‘the Pro Asyl Report’). The information in the Pro Asyl Report complements that contained in the Aida Report. It describes “systemic deficiencies” in the renewal of ADETs, which also affect returnees from other Member States, such that “the procedure to renew an ADET lasts at least six months and may exceed one year” (Pro Asyl Report, p. 13). On the page following, the Pro Asyl Report notes that persons holding an expired ADET normally receive nothing upon submission of a renewal application and so cannot demonstrate their status as beneficiaries of international protection until they receive a new ADET. That part of the Pro Asyl Report concludes as follows at pp. 15 to 16:

…beneficiaries of international protection in Greece face an array of administrative barriers, a lack of clear information and slow processing times at the different stages of the ADET issuance and/or renewal procedure. As a result, beneficiaries are liable to face particularly lengthy periods without a valid

ADET, in the absence of which they cannot access social benefits, health care, the labour market, or even authorise a legal representative. Recommendations by RSA on measures to streamline the process for issuing and renewing ADET have not been taken up by the government to date.

54. The impugned decisions also appear to place some reliance upon statements at pp. 20 and 21 of the Pro Asyl Report to the effect that no minimum period of residence is required in order to be eligible to receive guaranteed minimum income, formerly known as Social Solidarity Income. This consists of a €200 monthly allowance given to households with a registered address proved by the signature of a rental contract six months prior to the application and to “homeless persons” who live below the poverty line. The first named respondent observes in each decision that whilst that minimum income is low in comparison to what might be received in the State, it is not the case that no financial assistance by way of a guaranteed minimum income is available in Greece. In the light of what follows at p. 21 of the Pro Aysl Report, the availability of the guaranteed minimum income to “homeless persons” is unclear. On the following page, the Pro Asyl Report states that access to the guaranteed minimum income is conditional on possession, inter alia, of ADET and AMKA, tax clearance and a bank account.

55. The relevance of the information summarised at paras. 52 to 54, above, for the appellants’ circumstances is not, however, obvious. The summary of the facts at para. 2, above, discloses that once they had been granted refugee status, A.A.H. and M.H.A. waited for twelve and sixteen days respectively to receive an ADET valid for three years. Paragraph 4.5 of each impugned decision represents that the first named respondent had read the respective files in full and was aware that the appellants had received ADETs within those timelines. It follows that the first named respondent must be taken to have had those facts in mind when making observations on the appellants’ capacity to navigate the applicable procedures in Greece. In the light of the Aida and Pro Asyl Reports, it is remarkable that the appellants did not engage in any way with this aspect of their evidence which appears to show that they at least were unscathed by the general situation that may pertain to the issue of ADETs. That nonengagement is compounded by the appellants’ silence as to their ability to commence the process to renew their ADETs which, it appears, can be done prior to a return to Greece. There may well have been a perfectly good explanation as to why the appellants benefitted from the speedy delivery of ADETs that would not be repeated should they return to Greece: no such explanation was proffered to the first named respondent which was accordingly unable to take it into account in reaching its decisions. Consideration of this element alone demonstrates the value of the Ibrahim requirement to conduct an individualised assessment in every case.

56. The first named respondent’s apparent acceptance that there were or are deficiencies in the material conditions for the reception of applicants for international protection in Greece is not directly relevant to the appellants’ circumstances since they are already beneficiaries of international protection in Greece. The first named respondent thus turned to assess the conditions that persons in the appellants’ circumstances were likely to encounter in Greece, notably in relation to access to housing, employment and medical care.

57. Under the first heading, housing, at the hearing of the appeal, Counsel for the appellants drew this Court’s attention, in particular, to paras. 4.32 and 4.33 of the decision in respect of M.H.A., where, he claimed, the first named respondent had asked itself the wrong question: was there a reasonable chance that the appellant would find accommodation in Greece; rather than what was submitted was the correct test: was there a real risk that the appellant would be homeless upon his return to Greece. The ‘path’ of the first named respondent’s reasoning was thus said to be incorrect, thereby invalidating a core element of the impugned decisions. Under Ibrahim the existence of a real risk test is to be assessed by reference to an applicant’s individual circumstances and not those of a group of persons. If it was open to the first named respondent to find that, on the basis of the evidence before it, the appellant had a reasonable chance of finding accommodation in Greece, as the learned High Court judge held at para. 158 of the judgment under appeal, it follows that it did not accept that M.H.A was at real risk of homelessness in the event of his return to Greece. As para. 158 of the judgment under appeal accurately concludes, M.H.A. does not explain “…why no reasonable decisionmaker could have concluded against a real risk of homelessness, based on that evidence.” There appears to be no reason why that

conclusion does not apply equally to A.A.H.’s appeal. In any event, the real risk to which Ibrahim is directed is to identify if a person finds him or herself in a situation of extreme material poverty that does not allow him/her to meet their most basic needs, including a place to live, that undermines their physical or mental health or puts them in a state of degradation incompatible with human dignity. Establishment of a real risk of extreme material poverty is thus a crucial, but not the only, element of the test to be satisfied. By definition, the assessment under

Ibrahim is to be conducted by reference to the circumstances in which a person finds him or herself and the impact of those circumstances upon that individual, and not by reference to the general material conditions that may be said to prevail for a group of persons in a Member State. Even where the presence of systemic breaches of fundamental rights is alleged, Ibrahim makes it clear that a person who seeks to come within the scope of that test must show the impact of those systemic breaches for his or her personal circumstances.

58. Paragraphs 4.40 and 4.41 of the impugned decision in respect of M.H.A. consider a judgment of the Higher Administrative Court of Bremen (Germany) of 16 November 2021 (1 LB 371/21 – 5 K 1001/19) produced on his behalf. The first named respondent noted that that judgment was one of many that Member State courts and tribunals had delivered on secondary movement by beneficiaries of international protection, as summarised in the EUAA Report. The first named respondent evaluated this case law as showing that the courts and the tribunals of Member States may adopt different approaches when considering whether to return to Greece persons who have obtained the benefit of international protection in that Member State. The first named respondent exercised caution in relation to the applicability of those judgments not least because, although in a small number of cases inadmissibility decisions had been quashed on the basis of a finding that the person affected would be at risk of inhuman or degrading treatment upon their return to Greece, the majority of the decisions concerned circumstances where a quashed inadmissibility

decision was remitted back for reconsideration and determination at first instance. The first named respondent concluded that there was no

“one size fits all” approach and that an individualised assessment must be conducted in every case.

59. The appellants contend that the first named respondent failed to engage with various decisions, notably those delivered by courts and tribunals in Belgium, Germany and the Netherlands that declined to return or to transfer beneficiaries of international protection to Greece. It is argued that the High Court erred in failing to recognise that the first named respondent had been under a duty to investigate further and to engage proactively with that case-law.

60. Paragraphs 183 to 191 of the judgment under appeal agreed with the approach that the first named respondent took as to the weight to be given to decisions of the courts and tribunals of other European states. Since EU law requires that individual assessments be conducted in every case it follows that those decisions are based upon such individual assessments, which are of limited value when ruling upon other individual cases. The approaches that different courts and tribunals adopt are not amenable to real scrutiny absent detailed consideration of the content of, and the basis for, their decisions by reference to the law and practice of the relevant state. Where those requirements were met such decisions might have some persuasive force: decisions of the courts and tribunals of other Member States are not, however, of precedential value and, in any event, cannot displace the primary obligation on the first named respondent to assess the facts and circumstances of the individual before it. There is no EU level rule to the effect that returns to Greece are unlawful and an argument that relies upon decisions in other Member States not to return persons to Greece is tantamount to a suggestion that the State should decline to return any recognised refugee to Greece without taking account of that individual’s circumstances, which approach would be manifestly incompatible with the system of mutual trust upon which the EU is founded. In the light of this the High Court was satisfied that the position that the first named respondent had taken on this issue was reasonable.

61. In respect of this issue, I agree with both the result the High Court arrived at and the reasons by which it did so.

62. The impugned decision concluded by finding that, although the first named respondent was acutely aware of many reports that highlighted the difficulties that some beneficiaries of international protection experience in Greece, as a matter of fact not all those persons find themselves homeless, unemployed and/or destitute. Taking account of that material, and after conducting an individualised assessment of the appellants’ circumstances, the first named respondent was not satisfied that it had been shown that there were substantial grounds to believe that the appellants would suffer a real risk of treatment contrary to Art. 4 of the Charter/Art. 3 ECHR were they to be returned to Greece.

63. Relying upon para. 251 of the ECtHR judgment of 21 January 2011 in M.S.S. v. Belgium & Greece, CE:ECHR:2011:0121JUD003069609, (hereafter “M.S.S.”), the appellants also contend that persons who have obtained the benefit of international protection in Greece are to be assimilated to persons who seek that protection, the latter of whom the ECtHR considered to be a particularly underprivileged and vulnerable population group in need of special protection. That submission is contradicted by the observations at paras. 262 and 263 of M.S.S. that the prompt examination of the applicant’s asylum request could have “substantially alleviated his suffering” and that the prolonged uncertainty and total lack of any prospect of the applicant’s situation improving contributed to his circumstances having attained the level of severity required to fall within Art. 3 ECHR, thereby making it clear that the failure to determine applications for international protection promptly was an important element in classifying persons seeking that protection as an underprivileged and vulnerable group. The approach for which the appellants contend appears to result in the grant of international protection in Greece being in fact of no practical benefit to those persons who seek to obtain it. It was open to the first named respondent to accept the information contrary to that submission that was put before it in preference to the appellants’ submissions on that point.

64. Paragraph 25, above, responds to the appellants’ purported reliance upon the reference to the vulnerability of individual persons that appears at para. 93 of Ibrahim. The appellants in effect seem to contend that all persons who seek, and those who succeed in obtaining, the benefit of international protection in a Member State should be considered as members of a vulnerable group. If that proposition is correct, it is far from clear how the attribution of the word ‘vulnerable’ to those persons serves any purpose as it neither adds to, nor detracts from, their status as claimants/beneficiaries of international protection.

65. In any event, the appellants’ submissions in this respect do not survive contact with Art. 20 of the Qualifications Directive, as transposed into the law of Ireland by Part 8 of the Act of 2015, with particular reference to s. 58(1) thereof. Art. 20.2 of the Qualifications Directive represents that Chapter VII thereof “shall apply both to refugees and persons eligible for subsidiary protection”. Article 20.3 then states that “when implementing this Chapter, Member States shall take into account the specific situation of vulnerable persons such as minors, unaccompanied minors, disabled people, elderly people, pregnant women, single parents with minor children and persons who have been subjected to torture, rape or other serious forms of psychological, physical or sexual violence.” Article 20.4 provides that para. 3 shall apply only to persons found to have special needs after an individual evaluation of their situation. These provisions make it clear that, as a matter of EU law, persons who are afforded international protection may, consequent upon an individual examination of their circumstances, be considered vulnerable. The necessity to conduct that exercise by reference to the definition set out at Art. 20.2 excludes the proposition that all persons who obtain international protection are to be considered as vulnerable for the purposes of applying Ibrahim.

IV. Conclusion

66. For the reasons given at paras. 22 to 26, above, I propose that the Court answer the first question the High Court certified under s. 5(6)(a) of the Act of 2000 in both of these appeals as follows:

Applying a standard of real risk in accordance with the decision in C-438/17 Ibrahim et al. v. Germany, the High Court was correct in law in finding that it was open to the Tribunal member to conclude that the applicant had not established that his return to Greece would be in breach of Art. 4 of the Charter notwithstanding evidence that there is a significant risk of homelessness and destitution for recognised asylum seekers generally in Greece but where the Applicant had not demonstrated factors individual to his case such as would put him personally at real risk.

67. For the reasons given at paras. 29 to 36, above, I propose that the Court answer the second question the High Court certified in the M.H.A. proceedings as follows:

Section 46(8)(b) of the International Protection Act, 2015 requires the International Protection Appeals Tribunal to indicate in writing the nature and source of any information relating to an appeal that has come to its notice in the course of that appeal once it has decided same.

68. For all of the reasons given at paras. 38 to 65, above, I propose that the Court dismiss the balance of these appeals.

69. Notwithstanding that she declined to grant the reliefs sought, the learned High Court judge made no order for the costs of the substantive proceedings. I propose not to disturb her determination. She also ordered that the costs of the application for certificates and orders under s. 5(6)(a) of the Act of 2000 be costs in the cause. 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. 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 all costs in the cause. Should the appellants disagree with that proposed order, they should cause to have filed and served a written submission of not more than

2,000 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.

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

Appearances:

For A.A.H.: Michael Conlon SC and Eamonn Dornan, instructed by Trayers & Co., Solicitors

For M.H.A.: Michael Conlon SC and Garry O’Halloran, instructed by Trayers & Co., Solicitors

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