High Court allows extension of time for IPAT appeal but refuses injunction to stop deportation. The court found IPAT misapplied the legal test for time extension.

THE HIGH COURT

JUDICIAL REVIEW

[2025] IEHC 506

[Record No. 2025/1273JR]

BETWEEN

J.V.V. M.

AND

C. DE P.

APPLICANTS

AND

THE MINISTER FOR JUSTICE, HOME AFFAIRS AND MIGRATION

RESPONDENT

Ex tempore judgment delivered by Ms. Justice Stack on Friday 19th September, 2025.

Introduction

1. This is an application to restrain the deportation of the applicants, a young Brazilian married couple who arrived in the State in 2023, and to compel the Minister to make a decision on their applications to revoke the deportation orders which were made in relation to them on

11 December, 2024.

2. There is also a challenge to an application to challenge the decision of the International Protection Appeals Tribunal (“IPAT”) of 21 August, 2025, to refuse to extend the time for their appeal to that body against the refusal of their international protection claims. The applicants had a period of 15 working days from the receipt of letters dated 28 May, 2024, notifying them refusal of those applications, in which to lodge their appeals to IPAT. However, they did not do so until 20 August, 2025. The applicants contend that IPAT applied an incorrect legal test in refusing to extend time.

3. The application for leave and an application for an injunction to restrain the deportation of the applicants was heard on 17 September, 2025. As of that date, the applicants’ deportation was scheduled for Saturday 20 September, 2025. It has since been deferred for operational reasons.

Factual background

4. The applicants arrived in the State at Dublin Airport on 28 February, 2023, and made applications for international protection on 3 March, 2023. By letter dated 28 May, 2024, they were informed that their applications for international protection had been refused. In the notifications received from the International Protection Office (“IPO”), they were clearly informed of their right to appeal to IPAT pursuant to s. 41(1) of the International Protection Act, 2015.

5. Enclosed with the letters of notification were detailed information leaflets advising them not only of their right to appeal, but of the procedures relevant to it. Those leaflets clearly recommended that, if an unsuccessful applicant wished to obtain legal advice, they should do so immediately on receipt of the negative recommendation or decision from the IPO. A Legal Aid Board information leaflet was also enclosed and they were further informed that the Irish Refugee Council – Independent Law Centre also provided a limited amount of free legal representation.

6. The applicants never exercised their right of appeal, and by letter dated 10 July, 2024, they were advised that they had been refused permission to remain in the State pursuant to s.

49 of the 2015 Act. They were again advised that deportation orders might be made in relation to them.

7. This letter also informed them that they had the option of returning voluntarily to their country of origin but that if they decided not to do that, or if they did not let the Minister know within the required time frame that they had decided to do that, then the Minister would make a deportation order in respect of them pursuant to s. 51 of the 2015 Act. It was explained that once this was made and served, they would be required to leave the State and remain out of the State indefinitely.

8. On 11 December, 2024, the Minister made deportation orders in relation to the applicants. As part of this process, the Minister also considered whether the prohibition on refoulement contained in s. 50 of the 2015 Act had any application. He decided that it did not, given that their applications for international protection had failed. This is unsurprising given that, absent evidence of a new threat arising in the interim, the rejection of a claim for an application for international protection means that no risk of refoulement arises. This was explained many years ago by Clarke J. (as he then was) in Kouaype v. Minister for Justice [2005] IEHC 380, [2011] 2 I.R. 1. Given that the applicants had not raised any new risk which had arisen – and indeed, it is not clear that they ever made representations to the Minister as to why deportation orders should not be made – the Minister’s decision on this point was clearly not only lawful, but correct.

9. The applicants were notified of the making of the deportation orders by letter dated 30 December, 2024. These letters informed them that they were required to leave the State by 2 February, 2025. In the alternative, they were required to present so that arrangements for their deportation could be made, on 12 March, 2025.

10. It appears that the applicants left everything to the eleventh hour and instructed their current solicitors on 7 March, 2025 or at least, his written authority to act on their behalf is dated 7 March, 2025. One can assume that he was consulted only shortly before this authority was drawn up. In any event, on the same day, 7 March, 2025, applications to revoke the deportation order were made pursuant to s. 3(11) of the Immigration Act, 1999.

The applications to revoke the deportation orders

11. The applications to revoke are replete with references to various fundamental right provisions including the Constitution, the Charter of Fundamental Rights of the European Union, the European Convention on Human Rights, the United Nations Declaration of Human Rights and so on, but fail at any point to give any detail as to how any provision of any of these important legal instruments could be engaged in the circumstances of the applicants. Insofar as there is any reference at all to the applicants’ circumstances, the applications to revoke simply repeat in very basic terms the same claim made in the applications for international protection which had been rejected ten months previously.

12. These applications therefore contain absolutely nothing that has not been considered in the earlier decisions of the international protection officer (on the international protection applications) and the Minister (when he considered the prohibition on refoulement prior to making the deportation orders). It follows that the making of such these applications cannot give grounds for injunctive relief. This is clear from various Supreme Court decisions including L.C. v Minister for Justice [2007] 2 I.R. 133 and Smith v. Minister for Justice [2013] IESC 4.

13. Furthermore, I cannot see even arguable grounds for contending that an order of mandamus would lie at this stage in respect of the undetermined application to revoke. It is entirely unclear why the Minister is being asked to consider matters that he has already considered as part of his refoulement consideration prior to the making of the deportation order. By that I mean that the Minister noted that anything that might be relevant to the risk of refoulement had already been considered and rejected in the course of the international protection applications. That was not only the correct approach in law, but the only sensible one.

14. Therefore, insofar as any issues surrounding the application to revoke are concerned, I would both refuse leave and refuse an interlocutory injunction.

Application for leave to challenge the refusal by IPAT of an extension of time to appeal

15. As I have already stated, the first instance decisions were made in May, 2024, and the applicants were notified of the making of those decisions by letters dated 28 th May, 2024. Regulation 3(c) of the International Protection Act, 2015 (Procedures and Periods for Appeals) Regulations, S.I. No. 116/2017 (“the 2017 Regulations”), prescribes a period of fifteen working days for this appeal. The time for appeal therefore expired on approximately 18 June, 2024.

16. The application for extension of time to appeal to IPAT was made – it would seem on behalf of both applicants - on Wednesday, 20 August, 2025. This application was in very basic and – it has to be said – underwhelming terms, as follows: “The appellant has experienced difficulty in obtaining reports and the attached report/declaration from Pastor Edenilson Negreli and Pastor Fabiana Garcia have been obtained very recently.”

17. The joint “report/declaration” is of dubious evidential merit, being merely a recitation by two pastors of the applicants’ church in Brazil of what they have been told by the applicants. The international protection officer found the applicants’ account of events to be unconvincing.

However, the weight – if any – to be attached to this “report/declaration” would be a matter for IPAT, if an appeal were ever to proceed.

18. The key issue for these proceedings is that it is dated simply “2019”, no date or month being given. In an application to extend time, where there has already been significant delay, it was obviously incumbent on the applicants to say:-

(i) when precisely they had received this report;

(ii) in what circumstances they received it and from whom; or

(iii) why it could not have been submitted earlier.

19. It is also very possibly the case that they would have to explain why this report was of such significance that a failure to extend time so as to allow an appeal would amount to injustice.

20. So far as the application for leave to quash the decision of IPAT dated 21 August, 2025, is concerned, it was agreed that the test was of mere arguability, and I am compelled to accept that there is one arguable ground. Regulation 4(5) of the 2017 Regulations provides: “The Tribunal shall not extend the prescribed period [fifteen working days] except where it is satisfied that –

(a) the applicant has demonstrated that there were special circumstances as to why the notice of appeal was submitted after the prescribed period had expired, and

(b) in the circumstances concerned, it would be unjust not to extend the prescribed period.”

21. It is said by the applicants that these are disjunctive requirements and not cumulative ones. IPAT has interpreted the test as a cumulative one, and has stated this on the face of the

decision in this case. I understand that there are a series of cases in the High Court list which are awaiting final determination of this particular legal point. Therefore, in view of the fact that apparently this issue has been regarded as arguable in other cases, albeit that it appears not to have been determined as of yet, I would be prepared to accept that the point is arguable.

22. The other points raised by the applicants in relation to the decision of IPAT are, in my view, completely unarguable.

23. For example, it is said that regulation 4(2) of the 2017 Regulations obliges IPAT to invite further representations if it is intended to refuse an appeal by reason of the fact that it has not been lodged within the prescribed period. However, that is clearly not what regulation 4(2)

says. It provides:-

“Where the Tribunal receives a notice of appeal after the prescribed period and the notice does not contain a request for an extension of the prescribed period or set out the reasons why the applicant was unable to bring the notice of appeal within the prescribed period the Tribunal shall, by notice in writing, inform the applicant that his/her appeal has been received after the prescribed period has expired and that Tribunal intends to reject the appeal on that basis.”

24. In my view, it is clear that that provision does not apply in this case, because the applicants have indicated, by completing the relevant portion of the Notice of Appeal, that they are applying for an extension of time for appeal. The purpose of regulation 4(2) is to highlight to applicants who may not realise that they are out of time, that they need to make an application to extend time and they need to give grounds for such an extension. The obligation created by regulation 4(2) is one to notify applicants of their default in failing to make the necessary application and to further notify them that they will be refused if they do not make it. The applicants in question then have three working days pursuant to regulation 4(3) to make the necessary application.

25. In this case, it is clear that the applicants, in completing Part 9 of the Notice of Appeal, were well aware that they were out of time and were seeking an extension of time. Regulation

4 (2), therefore, does not apply to this case.

26. Further grounds in the statement of grounds allege that IPAT has somehow failed to give reasons or been irrational. These grounds are not even arguable in my view. IPAT refused the application on the sensible basis that the Notice of Appeal could have been lodged even without the purported supporting documentation as this can be done and documentation supplied later. They concluded that the delay was down merely to the inaction of the applicants, a conclusion that is manifestly reasonable in the legal sense, given the total failure of the applicants to put forward any substantive or sensible explanation for the delay in lodging an appeal to IPAT. A complaint that IPAT has fettered its discretion is not material where IPAT is exercising a quasi-judicial function, and not a discretionary power.

27. The result is that the applicants have identified a single arguable legal ground to the effect that the Regulations should be construed as containing disjunctive rather than cumulative grounds. I will therefore grant leave to seek certiorari of the decision of IPAT of 21 August, 2025, on a single ground derived from ground 5 in the proposed amended Statement of Grounds of 27 August 2025. (The amendment was not a formal amendment in the sense of one permitted by the Court but was the name given by the applicants’ lawyers to redrafted statement of grounds which was designed to reflect the fact that IPAT had, since drafting of the initial Statement of Grounds, made a decision on the application to extend time).

Whether the application to extend time for appeal to IPAT entitles the applicants to injunctive relief

28. However, it does not follow from grant of leave on that single ground that the applicants are entitled to injunctive relief. The Minister argues that no injunction should be granted because the applicants are guilty of egregious delay. In this, he is absolutely correct.

29. The applicants were well warned that deportation orders might follow on the refusal of their international protection applications. That subsequently occurred without the applicants ever taking any step to appeal the international protection decisions. Deportation orders were duly made and were notified to the applicants by letters dated 30 December, 2024.

30. Those deportation orders obliged the applicants to leave the State by 2 February, 2025. Failing that, they were to present to the Garda National Immigration Bureau on 12 March, 2025, to make arrangements for their deportation. As is already apparent, it was only a matter of days before they were due to present that the applicants consulted their current solicitors.

31. Acting, therefore, with the benefit of legal advice, the applicants merely applied to revoke the deportation orders. Even with the threat of imminent deportation, they still did not attempt to apply for an extension of time to appeal to IPAT.

32. In pointing this out, I do not want to be understood as implying that an application for an extension of time made after the making of a deportation order would be unproblematic. Any applicant who sits back and allows the Minister to proceed to make a deportation order in respect of him or her, must be at very serious risk of being unable to meet the criteria for an extension of time in regulation 4 (2) – whether those criteria are interpreted as being disjunctive or cumulative. I would suggest that it would be only where the notifications from the IPO and the Minister were sent to an address other than that furnished by an applicant for service, or perhaps in other very rare and exceptional cases which it is not necessary to define for the purposes for this case, that failed international protection applicants could ever succeed in an application to IPAT for extension of time to appeal which was submitted after the making of a deportation orders.

33. Nevertheless, it is a striking feature of this case that, even after consulting solicitors and making what appears to be a frivolous and vexatious application to revoke the deportation orders on the 10th March, 2025, the applicants still did not move in March, 2025, to apply to IPAT for an extension of time to appeal the refusal of their international protection claims.

34. The applicants did not present, as they were legally required to do, on 12 March, 2025. They were classed as evaders and became liable to arrest. Ultimately, the first applicant was arrested on 15 July, 2025. Even this did not provoke the making of an application to IPAT (and I again stress that I am not suggesting that such an application at that point would have been appropriate, and mention it only to highlight the very extreme nature of the applicants’ delay in this case).

35. It seems that the first applicant was to have been deported on Friday, 22 August, 2025, and it was only on 20 August, 2025, that an application to extend the time for appeal to IPAT was made, approximately fourteen months out of time. An application for injunctive relief was then brought in this court on 21 August, 2025. It seems that the Statement of Grounds at that point sought mandamus as against IPAT – though how IPAT could have been regarded as being in breach of its duty to decide an application it had only just received is not explained. The second applicant was arrested on 21 August, 2025.

36. The application to IPAT was, therefore, truly made at one minute to midnight as it was not even done promptly after the arrest of the first applicant.

37. It has been established for over twenty years that applicants for asylum are not entitled to “drip-feed” information to either the authorities charged with examining applications for international protection or to the immigration authorities: see Peart J. in Mamyko v. Minister for Justice [2003] IEHC 75. It is impermissible in law for applicants to hold back either information or applications so as to frustrate the deportation process by giving such information or making such applications just before deportation in the hope of obtaining a reprieve, either from the Minister or from this Court.

38. It is also an important discretionary element in every application for interlocutory injunction, whether in the field of immigration law or otherwise, that an application for interlocutory relief be made promptly. The applicants here consulted their current lawyers in early March, 2025. Notwithstanding this, they did not apply for an extension of time to appeal to IPAT until 20 August, 2025, and only sought an injunction the following day.

39. On the grounds of delay, therefore, the application for an injunction to restrain deportation must be refused, notwithstanding the identification of a single arguable legal ground relating to the test applied by IPAT to the application for an extension of time.

Whether the application to extend time, and these proceedings, are an abuse of process

40. I would leave for another case the determination of whether the failure of applicants for judicial review to put forward any factual basis by reference to which a legal test contended for would be engaged in the circumstances of their case should lead to refusal of leave, even where it is arguable that the correct legal test was not applied by the decision maker.

41. The combination of the complete lack of substance in the grounds – such as they are - put forward by the applicants in support of an extension of time for appeal, coupled with the extreme delay on the part of the applicants in even seeking the extension, strongly suggests that the real purpose of lodging the appeal to IPAT was to take advantage of the fact that applicants in other cases have sought to argue this legal issue, and that these applicants might, in reliance on that fact, obtain not only leave to bring judicial review proceedings, but also an injunction to restrain deportation. As such, the application for an extension of time in this case might well be regarded as an abuse of process as being directed at the artificial creation of grounds for injunctive relief to restrain deportation, as opposed to pursuing a bona fide appeal to IPAT.

42. However, I do not have to decide that. The effect of granting leave on the sole ground which I have found to be arguable does not, in any event, affect the lawfulness of the deportation orders, nor does it affect the Minister’s entitlement to proceed to deport the applicants.

Medical condition of the second applicant

43. A medical report was also put in evidence and this states that the second applicant has been suffering from anxiety and panic attacks since the premature death of her mother, when she was 16. As the second applicant was born in 2004, it appears she has suffered from these anxiety and panic attacks since 2020 or 2021, before she came to the State. This medical report asserts that, since the arrest of the first applicant, the condition of the second applicant has deteriorated. While it is asserted that it is not safe for the second applicant to fly, and that the plane might need to be diverted if she was forced to fly, the general practitioner working in the Dóchas Centre, where the second applicant is being held, correctly points out, in a report procured by the Minister, that the second applicant does not suffer from any medical condition for which flying is contraindicated and that patients who have severe anxiety at the prospect of flying in an airplane are often prescribed a mild sedative medication and that a prescribing doctor might consider this if the patient requested it.

44. The applicants find themselves in a very stressful situation, but that is the unfortunate result of their decision not to make their own arrangements to leave the State when they received the deportation orders. There is nothing in the medical report put in evidence by the applicants that would amount to any legal impediment to the deportation of the applicants.

Conclusion

45. I will make an order joining IPAT as a respondent to the proceedings and will grant to challenge the decision of IPAT on the application to extend time on the following ground: “The Second Respondent has misdirected itself in determining that the first and second limbs of the statutory test are disjunctive, i.e., that the existence of special circumstances must be assessed in the first instance and in isolation from the question of injustice/the balance of justice.”

46. I will refuse leave to seek any other relief, and I will refuse leave to rely on any other grounds.

47. The application for injunctive relief to restrain deportation of the applicants is also refused. The Minister is clearly entitled to deport the applicants and he will be acting lawfully if he does so.