High Court refuses leave for judicial review as applicant failed to show substantial grounds challenging the Minister's decision.

HIGH COURT JUDICIAL REVIEW

IN THE MATTER OF SECTION 5 OF THE ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 (AS AMENDED)

[2025] IEHC 502 Record No. 2025/1127/JR BETWEEN

M. Y. M.

APPLICANT

AND

THE MINISTER FOR JUSTICE, HOME AFFAIRS AND MIGRATION

RESPONDENT

RULING of Ms. Justice Siobhán Phelan, delivered on the 18th day of September, 2025.

INTRODUCTION

1. The Applicant is a Somali national who seeks leave on an ex parte basis to challenge a

decision of the Minister made under s. 50 of the International Protection Act, 2015

(hereinafter “the 2015 Act”) by way of judicial review. Decisions under ss.50 and 51 of the 2015 Act are both subject to s.5 of the Illegal Immigrants (Trafficking) Act 2000 (as amended) (the “2000 Act”) and therefore the standard to be applied on an application for leave to proceed by way of judicial review is “substantial grounds.” The application for leave came before me on the 15th of September, 2025.

BACKGROUND

2. The relevant facts and procedural history are set out in the pleadings and will not be repeated in detail. I adopt the outline chronology appended to written submissions in support of the leave application as follows:

Date Event

May 1999 Applicant born in Somalia

January 2022 Arrival in Ireland

February 2022 Application for international protection under the International Protection Act 2015

May 2022 Submission of International Protection Questionnaire (English translation)

November Interview under s.35 of the 2015 Act 2023

October 2024 Second interview under s.35 of the 2015 Act

November IPO report recommending refusal of refugee and subsidiary protection 2024 declarations

April 2024 Application for review of permission to remain under s.49(7)

April 2024 Refoulement submissions made

7th May 2025 Minister's decision to refuse permission to remain

28th May 2025 Section 50 prohibition of refoulement decision and deportation order

6th June 2025 Service of Notice of Deportation

12th June 2025 Request for transfer of file to CSHR Solicitors

8th July 2025 Receipt of international protection file by CSHR Solicitors

3. In brief, the Applicant is a 26-year-old Somali national from the Gabooye Tribe and Madhiban Clan who hails from Hargeisa in the Somaliland region. He applied for international protection in the State on the 12th of February, 2022, asserting a fear of harm from indiscriminate violence and clan-based hostilities in multiple regions of Somalia. He further asserted a fear of discrimination, threats, kidnapping and death from “powerful tribes”. He also claimed a fear of persecution/serious harm as a result of “civil war, terrorism, piracy, opposing political ideologies, tribal wars and bad governance”.

4. In November, 2024, the IPO recommended that the Applicant should neither be granted a refugee nor subsidiary protection declaration, largely on the basis that State Protection was deemed available in Somalia. The IPO accepted there was indiscriminate violence within an international/internal armed conflict but determined that the Applicant would not be exposed to any risk in Hargeisa, where he lived. The IPO identified the COI relied upon, notably a US Satement Department Report dating to April, 2024. This Report was cited as a reference and a link provided.

5. The IPAT upheld the IPO’s recommendation, finding that the Applicant’s account of events was not credible and that he was not in need of international protection.

6. It bears note that both the s. 39 report prepared by the IPO and the decision of the IPAT on appeal contained a consideration of whether the Applicant had established a real risk of serious harm under either Article 15(a), (b) or (c) of the Qualification Directive or s. 2 of the 2015 Act. The IPAT concluded in relevant part, with specific reference to the decision of the CJEU in Elgafaji, that the individual elements of the Applicant’s case did not give rise to an elevated level of risk above the general population. It was observed that the area where he was living with his grandmother before leaving Somalia “appears to carry no real risk to civilians under the heading of Article 15(c)”.

7. Neither the IPO nor IPAT decision was challenged by way of judicial review.

8. On the 7th of April, 2025, the Applicant applied for a review of permission to remain under s.49(7) of the International Protection Act, 2015 and made representations including refoulement submissions.

9. On the 7th of May, 2025, the Minister for Justice refused the Applicant permission to remain in the State and delivered a decision in writing which included a consideration of the Applicant’s rights under Articles 3 and/or 8 of the European Convention on Human Rights. This decision has not been the subject of challenge by way of judicial review.

10. The “Section 50 Refoulement Decision” which issued on the 6th of June, 2025, noted that the Applicant’s account of events was rejected by both the IPO and IPAT as not credible. The Minister found that the Applicant had provided “no new information”

beyond that considered by the IPO and IPAT and that “no further consideration” was required with regard to his international protection claims and there were “no barriers”

to his return to Somalia.

11. On the 23rd of July, 2025, papers were filed in the Central Office in support of the within application by way of judicial review. An extension of time is sought on the basis that the solicitors with carriage of the Applicant’s claim were not in a position to bring an application on his behalf and he sought a second opinion from a different firm of solicitors who agreed to bring proceedings on his instructions.

SUBSTANTIAL GROUNDS THRESHOLD

12. The substantial grounds test for leave which applies by virtue of s. 5 of the 2000 Act, was set out in McNamara v. An Bord Pleanála [1995] 2 ILRM 125 and approved in In Re Illegal Immigrants (Trafficking) Bill 1999 [2000] 2 IR 360 at 395. The word

“substantial” was interpreted as being equivalent to “reasonable”, “arguable”, and “weighty” and the Court held that such grounds must not be “trivial or tenuous”. To meet the test the Applicant must identify facts upon which a reasonable or weighty claim may be made that the decision sought to be impugned is unlawful on stateable legal grounds.

ISSUES

13. In these proceedings the Applicant seeks to challenge the section 50 refoulement

decision as irrational, procedurally unfair and ultra vires. The essence of the case pleaded is that the section 50 refoulement decision was not lawfully made by reason of a failure to assess Article 15(c) risk as part of that decision and to record a decision on this assessment on the record. A similar argument is made with regard to the absence of a proportionality consideration by the Minister in his section 50 refoulement decision. Related complaints are made with regard to a failure to address the fact that the Applicant is a member of a minority clan and in consequence may suffer a heightened risk of indiscriminate violence. It is separately complained that the Minister failed to furnish the Applicant with the USDOS Report referred to in the section 50 refoulement decision and that the decision was flawed because the Applicant had not been allowed an opportunity to comment on the sections addressing indiscriminate violence in that report.

DISCUSSION AND DECISION

14. It is submitted on behalf of the Applicant that the definition of “serious harm” under s.2 of the 2015 Act, reflecting Article 15(c) of Directive 2011/95/EU (hereinafter “the Qualifications Directive”), encompasses a “serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in situations of armed conflict”. This submission is uncontroversial and manifestly legally correct.

15. I am referred to a series of the decisions of the CJEU in relation to Article 15(c) of the Qualification Directive. It is submitted that the legal framework for Article 15(c) was established in Elgafaji v Staatssecretaris van Justitie (C-465/07) ECR I-921. There the CJEU held that the existence of a serious and individual threat can be considered to be established where the degree of indiscriminate violence characterising the armed conflict reaches such a high level that substantial grounds are shown for believing that a civilian would, solely on account of his presence on the territory, face a real risk of being subject to that threat.

16. Building on the decision in Elgafaji, in X and Others v Staatssecretaris van Justitie en Veiligheid (Case C-125/22), the CJEU further clarified the assessment of applications for subsidiary protection under Article 15(c), emphasizing that national authorities must consider all relevant factors, including the applicant's personal circumstances and the general situation in their country of origin, to identify potential serious harm. The requirement to conduct an assessment of applications under Article 15(c) can hardly be doubted in the face of this clear dicta. What is far less clear is how these decisions avail the Applicant on the facts and circumstances of this case.

17. Notwithstanding the Applicant’s attempted reliance on cases such as Elgafaji and X and Others v Staatssecretaris van Justitie en Veiligheid, it is apparent from the papers that on the facts of this case there has been consideration of the Applicant’s right to protection having regard to Article 15(c) by both the IPO and the IPAT. Indeed, it is not in controversy that this assessment occurred. It is also accepted that the conclusions reached have not been impugned by way of judicial review proceedings.

18. Further, it is not contended on behalf of the Applicant, nor could it be, that the Minister has made an order in this case in breach of the requirement under s. 50(1)(a) and (b)

not to return the Applicant to the frontier of a territory where, in the opinion of the Minister, the life or freedom of the person would be threatened for reasons of race, religion, nationality, member of a particular social group or political opinion or there is a serious risk that the person would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment. The terms of the section 50

decision record clearly that the Minister was not of the opinion that such risks arose for reasons given in the decision.

19. Instead, the Applicant’s case is premised on the more far reaching proposition that the Minister is obliged, when considering the prohibition on refoulement under s. 50(1)

of the 2015 Act, to engage in a substantive assessment of whether or not the Applicant would face an Article 15(c) risk in Somalia, particularly in light of ongoing conflict, human rights abuses and violence there, again at refoulement stage, notwithstanding that this assessment has already been conducted by the IPO and the IPAT and no new material has been advanced to warrant further assessment. This submission is made even though s. 50 of the 2015 Act, unlike s. 50A which applies cases rejected for consideration within the protection process on grounds of inadmissibility, does not by its express terms require such assessment.

20. There is simply no authority for the proposition for which the Applicant contends and which is at the heart of his application in these proceedings. Decisions such as those of CJEU in Elgafaji and X and Others v. Staatssecretaris van Justitie en Veiligheid relied upon by the Applicant in submissions in support of the leave application require only that an Article 15(c) assessment occur as part of the process, not that they occur repeatedly at different stages of the process.

21. If anything, the fact that express provision is made in s. 50A(1)(b) of the 2015 Act for broader rights consideration in respect of the prohibition of refoulement where an application for international protection has been determined to be inadmissible under s. 21 of the 2015 Act serves to reinforce the significance of the absence of similar provision in s. 50. Had the Legislature intended that there should be a further Article 15(c) assessment as a matter of course at the conclusion of the protection process and before an applicant was removed from the State, it would have so prescribed in like terms to s.50A(1)(b) of the 2015 Act.

22. It is undoubtedly the case that on its plain and ordinary meaning s. 50(1) of the 2015 Act only prohibits expulsion or return to the frontier of a territory where, in the opinion of the Minister, the life or freedom of the person would be threatened for reasons of race, religion, nationality, member of a particular social group or political opinion or there is a serious risk that the person would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment. I have not been referred to any EU provision or decision of the CJEU which would support a different interpretation of s. 50(1) of the 2015 Act to that which flows from the clear language used. Specifically, I have not been referred to any measure of EU law which would require a separate Article 15(c) assessment prior to the making of an expulsion or return order in circumstances where protection needs provided for under the

Qualification Directive have already been fully considered in the process and no new basis for asserted risk has been identified.

23. Counsel for the Applicant suggests that it is untenable that there would be better protection for persons being returned to an EU Member State than for those being returned to countries such as Somalia with its grave human rights history. This submission is misconceived in that it fails to have proper regard to the fact that unlike the applicant in a case determined as inadmissible who is to be returned to another EU Member State, the Applicant in this case, liable now to being returned to Somalia, has had the benefit of a full consideration of his protection claim. It cannot reasonably be contended that the applicant whose claim was determined as inadmissible has had a more extensive or “better” consideration of his or her protection needs when regard is had to the process as a whole.

24. Nor does the fact that the Applicant had been granted protection in Greece prior to travelling to Ireland and claiming protection in the State mean that the decision of the Minister in this case is legally infirm. Although the grant of protection in Greece in contradistinction to the decision made by the Irish authorities was not identified as a ground of legal challenge in the Statement of Grounds, some persuasive force was sought to be attributed in oral argument to the fact that the Applicant’s case had received a more favourable outcome in Greece than in Ireland. It must be recalled, however, that the High Court is not charged with reviewing a decision of the Greek authorities or examining why it was different to the decision made by the competent authorities in this State. The issue for the High Court on this application to proceed by way of judicial review is whether the Applicant has identified a stateable or tenable legal basis, in accordanc with a substantial grounds threshold, for challenging the

decision of the Minister as unlawful. This challenge falls to be determined by reference to the decision making process engaged in the State as established on the evidence before me and not elsewhere.

25. Insofar as it is complained that reliance in the section 50 refoulement decision on the US State Department Country Reports on Human Rights Practices, 2023, Somalia was unfair because the Applicant was not afforded an opportunity to respond to the contents of this Report, the Applicant fails to have due regard to the fact that the Report in question had been cited in the IPO decision. By reason of the fact that the

Report had been identified in the IPO decision, ever before the matter went before the IPAT or the Minister on the section 50 non-refoulement application, it follows that the Applicant had every opportunity to engage with its contents in the submissions made to the IPAT. He could not (or should not) have been taken by surprise by the Minister’s subsequent reliance on the Report in the section 50 refoulement decision.

I do not consider stateable grounds for this complaint of unfairness to have been made out.

26. As for the separate complaint that the Minister erred contrary to MK (Albania) v Minister for Justice & Equality [2022] IESC 48 and/or engaged in irrationality in failing to engage in any Article 8 ECHR analysis of the Applicant’s private life rights and in failing to engage in any proper “proportionality” analysis under Article 8(2)

ECHR, it was acknowleged by counsel in moving the application for leave that an Article 8 analysis was conducted as part of the section 49 permission to remain

decision making process. Counsel could not identify any basis in law for contending that the Minister was required to conduct this exercise afresh as part of a section 50 refoulement decision in the absence of any new information. The complaint in this regard fails to satisfy the substantial grounds test in like manner to the Article 15(c)

complaint and for like reasons. No stateable basis for advancing this ground of legal challenge has been established. The contention that the Minister remains obliged to consider the Applicant’s broader rights even where they do not reach the level of risk identified in s.50(1)(a) and (b) and where the same issues have already been considered as part of the decision making process is not a sustainable one.

27. For the sake of completeness, it is my view that where the contention that there is a free-standing, separate obligation on the part of the Minister to conduct a further Article 15(c) or broader rights analysis as part of his decision on refoulement under s.

50 of the 2015 Act, even in the absence of new information, is not legally sustainable, it must follow that any want of reasoning or lack of engagement with materials in respect of an assessment which the Minister was not required to carry out is without any real substance.

CONCLUSION

28. For the reasons set out, I am not satisfied that the Applicant has discharged the burden on him at leave stage of demonstrating substantial grounds for seeking relief by way of judicial review. The Applicant has failed to identify facts upon which a reasonable or weighty claim may be made that the decision sought to be impugned is unlawful on stateable legal grounds. I do not consider the basis advanced in the pleadings and urged in submissions meets a threshold of reasonable or weighty. It is my view that the case sought to be advanced can properly be described as trivial or tenuous.

Accordingly, I refuse leave in this case.