High Court dismisses judicial review challenging time extension rules as ultra vires and unconstitutional.

THE HIGH COURT

JUDICIAL REVIEW

[2025] IEHC 543

[Record No. 2025/1073JR]

BETWEEN

GB

APPLICANT

AND

THE INTERNATIONAL PROTECTION APPEALS TRIBUNAL, THE MINISTER

FOR JUSTICE HOME AFFAIRS AND MIGRATION, IRELAND AND THE

ATTORNEY GENERAL

RESPONDENTS

JUDGMENT of Ms Justice Miriam O’Regan delivered on the 20th day of October 2025.

Issues

1. In the within proceedings which issued on 12 July 2025 leave was granted to the applicant on 15 July 2025. In the statement of grounds, the applicant seeks to quash the decision of the first named respondent (hereinafter “IPAT”) dated 02 July 2025 and further seeks injunctive and declaratory relief. The declarations sought are to the effect that Regulations 3(b) and 4(5) of the International Protection Act 2015 (Procedures and Periods for Appeals) Regulations, 2017 (hereinafter “the 2017 Regulations”) are ultra vires and/or void. In the alternative a declaration is sought that Regulation 4(5) of the 2017 Regulations is ultra vires the 2015 Act and/or is unconstitutional and/or infringes the principle of legal certainty and/or the applicant’s right to an effective remedy under Article 47 of the Charter of Fundamental Rights and/or a declaration pursuant to s.23 of the European Convention on Human Rights Act 2003 that the 2017 Regulations are incompatible with the European Convention on Human Rights.

2. The applicant has pursued the within matter before the court in oral and written submissions on the basis: -

(1) IPAT erred in its decision of 02 July 2025 in the implementation of the provisions of Regulation 4(5) of the 2017 Regulations or alternatively erred insofar as the finding that there were no special conditions;

(2) in the event that it is found that IPAT correctly applied Regulation 4(5) then same is ultra vires the Council Directive 2015/85/EC of the European Council (hereinafter, “the Procedures Directive”) and in particular: - Article 15(2) thereof which provides that in the event of a negative decision by a determining authority, Member States shall ensure that free legal assistance and/or representation be granted on request and/or Article 39(1) which provides that Member States shall ensure that applicants for asylum had the right to an effective remedy.

Article 39(2) has also been referenced by the respondents which provides that Member States shall provide for time limits and other necessary rules for the applicant to exercise his or her right to an effective remedy pursuant to para. 1.

Background

3. The applicant herein is a Georgian national (Georgia has been identified as a safe country of origin by the State in Statutory Instrument 121/2018) who arrived in Ireland with his spouse and applied for internation protection on 30 May 2024.

4. The applicant’s application was refused on 29 July 2024 when the applicant was advised that he had ten working days to appeal.

5. The applicant was initially represented by the Legal Aid Board who came on record for the applicant on 06 June 2024 however legal representation for the applicant transferred to his current solicitors on 09 August 2024 following agreement between the Legal Aid Board and current solicitors.

6. The time within which to appeal the refusal aforesaid of 29 July 2024 expired on 13 August 2024. On that date the applicant’s current solicitors submitted grounds of appeal and submissions indicating that a notice of appeal was not included but would be furnished as soon as possible. In the events it is common case that the notice of appeal was not submitted by the applicant’s current solicitors until an email of 30 June 2025.

7. On 15 August 2024 in an email from IPAT to the current solicitors, IPAT indicated that no notice of appeal was submitted and recommended that the solicitors would submit a duly completed notice of appeal without delay with any appeal submitted beyond the statutory deadline to be accompanied by a written request for an extension of time setting out the reasons why the solicitors or the applicant were unable to lodge a notice of appeal in the period prescribed in Regulation 3 of the 2017 Regulations.

8. On 16 August 2024 the applicant completed the requisite notice of appeal and furnished same to his solicitors however this was not lodged with IPAT. Subsequent communications from IPAT to the applicant were not copied to the solicitor until after the service by the solicitor on IPAT on 30 June 2025 of a notice of appeal duly signed together with a consent for the solicitors to act on behalf of the applicant.

9. On 25 March 2025 the applicant was served with a deportation order and was subsequently arrested on 29 June 2025.

10. In the letter of the solicitors to IPAT of 30 June 2025 an application was made for an extension of time for the appeal to be accepted for consideration. In this submission it was noted that on 13 August 2024 the appeal submitted was not in the form however included a majority of the details required by the form. It is also recorded that on 16 August 2024 the applicant sent to the solicitors the signed appeal form, however the email was not seen and not submitted nor was there a reply to the Tribunal email of 15 August 2024. The solicitors indicated that they were not furnished with a copy of the Minister’s refusal of 20 November 2024 or the deportation order of 25 March 2025 directly from the Department of Justice, however, the applicant did email copies of the documents to the solicitors which emails were not dealt with.

11. It is stated that a significant increase in volume of email correspondence being received by the solicitor’s office (of in and around 200 emails per day) has been noticed in recent times necessitating additional staff and other systems changes. It is said that the problem in the case came to the solicitor’s attention on 30 June 2025 when the solicitors were contacted by the applicant’s spouse and advised of his arrest. It was submitted that there was no prejudice to IPAT in allowing the appeal and that there were particular humanitarian grounds arising in the case (the applicant and his wife had a child on 09 July 2025).

12. The solicitor further indicated that in IPAT’s email of 15 August 2024 an appeal form was recommended but it was not stated it must be submitted. It is stated that the email refers to an explanation for the extension of time, however the solicitors were never informed that the appeal was invalid and therefore the starting position of the applicant was that he had a valid appeal pending since 13 August 2024 or in the alternative the solicitors are satisfied that special circumstances arise in the case to allow time to be extended.

13. It might be noted that in submissions to this court Counsel the Applicant made additional submissions beyond those contained in the email of 30June, 2024.

14. The response to the foregoing request was given in writing on 02 July 2025. Regulation 4(5) of the 2017 Regulations was set out. It is recorded that as per the applicant’s solicitor’s letter the deadline to furnish an appeal was 13 August 2024. The fact that the email from the applicant to his solicitor of 16 August 2024 was not seen is recorded in the decision and IPAT observed that no evidence of this has been provided. In relation to the refusal of the Minister on 20 November 2024 and subsequent deportation order of 25 March 2025 it is noted that the solicitor indicated that she had not received these documents from the Department although they were emailed to her office by the applicant together with other requests for updates, but these emails were not dealt with. IPAT states that the decisions presented a further indicator that there was no appeal pending before IPAT. IPAT indicated that the solicitor had stated that there was a significant increase in volume of email correspondence being received by the office in recent times and that as a result the solicitors had to take measures to deal with this. The

decision went on to state: -

“Mere administrative or internal oversights are not considered by the Tribunal to meet the statutory threshold of ‘special circumstances’. For a situation to qualify as a special circumstance, there must be factors that go beyond routine mistakes or as in this case, procedural lapses.” IPAT went on to note the humanitarian grounds referenced and the submission that there was no prejudice to IPAT and states: - “The Tribunal is of the view that the legislation, as set out above, sets out a cumulative test and both limbs must be satisfied.” On the basis of the foregoing, the conclusion was to the effect that it was the onus of the applicant to satisfy IPAT that the test had been met however based on all the information before the IPAT it was found that this test was not met and it refused to extend the prescribed period.

The 2017 Regulations

15. These regulations were made pursuant to s.77 of the International Protection Act, 2015 (“the 2015 Act”) |It is recorded in the title of the 2017 Regulations that same were made “having regard to the need to observe fair procedures and the need to ensure efficient conduct of the business of the Tribunal.”

16. Regulation 3(b) of the 2017 Regulations provides that the period prescribed to maintain an appeal is ten working days for the purposes of s.22(8) of the 2015 Act, which is accepted by the parties as being applicable to the within proceedings.

Under Regulation 4(5) the test for an extension of time is set out as follows: - “The Tribunal shall not extend the prescribed period 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.”

Under Regulation 5(1) an appeal shall be made by notice in writing and shall be in the relevant form specified in the schedule.

The parties do not dispute that for the purposes of such a notice of appeal the applicant must sign same and sign a consent for the relevant solicitor to act on his or her behalf.

Special Circumstances

17. The concept of special circumstances is not defined within the Regulation or indeed the primary legislation, being the 2015 Act. Accordingly, it is necessary to have regard to jurisprudence to date in this regard. It is agreed by the parties that the jurisprudence relied on by them does not deal with the instant provisions but are nevertheless instructive.

18. In Murphy v HSE [2021] IECA 3 Haughton J in the Court of Appeal was dealing with the concept of special circumstances under the revised O.8 of the Rules of the Superior Courts in respect of a somewhat different test under consideration in these proceedings. In Murphy the test under review was “special circumstances which justify an extension”. Haughton J determined that in ascertaining the meaning of “special circumstances” same must be decided on the facts of a particular case with it being generally accepted that it is a test that is higher than “good reason”. The test does not raise the bar to “extraordinary”, however does suggest some fact or circumstance that is beyond the ordinary or the usual needs to be present.

19. At para. 75 of the judgment the court indicated that the preferred approach reflects the principle enunciated by Finlay Geoghegan J in Chambers v Kenefick [2005] IEHC 526, a

decision which has been followed on many occasions for example Clarke J in Maloney v Lacey Building & Civil Engineering Limited [2010] 4 IR 417.

20. In Chambers, Ms Justice Finlay Geoghegan indicated that the court should first consider is there good reason to renew and if satisfied that there are facts and circumstances which either do or potentially constitute a good reason to renew the court should move to what is sometimes referred to as the second limb, namely, the interest of justice.

21. At para. 76 the court indicated “this is not a second tier or limb to the test”. The court was satisfied that the interest of justice is encompassed by the phrase “special circumstances which justify extension.”

22. At para. 77 the court indicated that at a level of principle, a question arises as to whether inadvertence on the part of a plaintiff or their solicitors can ever amount to or be relied upon as special circumstances. As far as legal advisers are concerned inadvertence or inattention in effecting a summons will rarely constitute “special circumstances”. Legal advisers must be taken to be aware of the time limit for service and the consequences of allowing it to elapse.

23. In Nolan v Board of Management of St. Mary’s Diocesan School [2022] IECA 10 Noonan J also considered the renewal of a summons under O.8, r.3 of the Rules of the Superior Courts and in doing so sought to clarify Haughton J’s comments aforesaid in Murphy. In addition, the arguments by counsel on behalf of the applicant in these proceedings, namely, that special circumstances and the consideration of the injustice of not allowing an extension, overlap and should be considered together rather than separately, was made in the matter before Noonan J.

24. At para. 25 of Nolan aforesaid it is stated that counsel for the plaintiff submitted that whether a special circumstance existed was to be considered in tandem with the question of prejudice on the basis that there was no second limb to the test and that the law had moved on since Chambers was decided. Noonan J found that this was an incorrect interpretation of Murphy and expressed the view that Haughton J recognised that special circumstances alone are not enough and placed emphasis on the requirement for those circumstances to justify extension.

“His reference to there not being a second tier or limb to the test refers to the fact that special circumstances and the justification for renewal are not two and distinct matters but fall to be considered together in the analysis of whether it is in the interest of justice to renew the summons. Prejudice is a component of that analysis. However, before that analysis can be arrived at, it must be established that there are special circumstances. This follows from the court’s approval of the Chambers approach and in accordance with common sense. The plaintiff’s contention that the court is required to consider prejudice from the outset is to put the cart before the horse and would lead to a result diametrically opposed to the clear intent on the new rule”

25. In the circumstances in my view IPAT’s decision to find that “email was not seen”, “emails were not dealt with” and “a significant increase in volume of email correspondence was noticed in recent times”, without more, did not constitute special circumstances, was one open to it and made within jurisdiction.

26. The assessment of the existence of special circumstances falls to be considered in the context of the submissions made in the email of 30 June 2025 and given the explanation therein provided for the delay I am satisfied that the decision made by IPAT was within jurisdiction and one which it was entitled to arrive at.

27. In my view it is in accordance with the clear and unambiguous provisions of Regulation 4(5) generally, that the starting point is that there will not be an extension of the prescribed period save in circumstances where it can be established that the requirements of Regulation 4(5)(a) and (b) have been fulfilled. In this regard if the wording “special circumstances which justify an extension” is to be considered as requiring in the first instance an analysis of whether or not special circumstances exist before any further inquiry, then such a process is all the more appropriate where the Regulation is clearly phrased in a manner which requires the existence of special circumstances independently of the assessment of whether or not it would be unjust not to extend the required period.

28. In the present circumstances therefore it appears to me that the decision-maker in arriving at the decision of 02 July 2025 did not fall into error by considering whether or not the applicant had furnished evidence of special circumstances under the provisions of Regulation 4(5)(a) of the 2017 Regulations independently of a consideration of whether or not it would be unjust not to extend under the provisions of Regulation 4(5)(b) as the analysis undertaken by the decision-maker is in accordance with the above extract from Nolan.

29. In circumstances where IPAT held that no special circumstances were demonstrated an analysis under Regulation 4(5)(b) was not required as absent the existence of special circumstances it was impossible for the applicant to fulfil the requirements of Regulation 4(5).

Was an appeal pending since 13 August 2024?

30. As specified in the submissions of 30 June 2025 by the applicant’s solicitors the existence of an appeal since 13 August 2024 was the starting position on behalf of the applicant.

For the following reasons in the instant circumstances, I am satisfied that a valid appeal was not pending since 13 August 2024: -

(a) Regulation 5(1) of the 2017 Regulations states that the appeal shall be in the prescribed form. It is common case that the prescribed form was not before the

decision-maker as of 13 August 2024.

(b) Regulation 4(5)(a) refers to special circumstances as to why the notice of appeal was submitted after the prescribed had expired. Clearly therefore any contemplation of an extension of time relates to the filing of a notice of appeal in the prescribed form and in accordance with Regulation 5(1) of the 2017 Regulations mandating the user of the prescribed form.

(c) In the submissions of 30 June 2025, it is suggested on behalf of the applicant that by 13 August 2024 the majority of details required had been furnished. This by definition accepts that some details required were outstanding, which is correct. No argument was made that an individual solicitor can choose to ignore some required details thereby effectively rewriting or editing the provisions of Regulation 5(1). In these circumstances neither the correct form nor full details were furnished as mandated by the 2017 Regulations.

(d) In submissions it is argued that IPAT merely recommended a notice of appeal in its email of 15 August 2024 to the applicant’s solicitor. However as per Murphy v HSE para. 77 a solicitor is taken to be aware of the time limits and the consequences of allowing it to lapse. Accordingly. I am satisfied that the argument that because IPAT in its email did not advise the applicant’s solicitor that a notice of appeal was mandated (therefore an appeal was pending since 13August, 2024) is unsustainable.

(e) In an email dated 06 August 2024 from the solicitor to the applicant’s spouse exhibited in the applicant’s solicitor’s affidavit of 16 September 2025, it was specified “you should get the signed form to us as soon as possible as there is a time limit to submit the appeal”. This clearly demonstrates the solicitor’s understanding of the requirement to submit a duly completed notice of appeal in accordance with the 2017 Regulations.

(f) The Minister’s decision of 20 November 2024 wherein the applicant is advised that there is no pending appeal, and the subsequent deportation order of 25 March 2025 are entirely inconsistent with the subsistence of an appeal pending since 13 August 2024.

(g) When submitting the grounds of appeal and submissions on 13 August 2024 the applicant’s solicitor indicated that a notice of appeal was to follow as soon as possible which supports an understanding that a notice of appeal was a necessary document.

(h) In para. 4 of the applicant’s affidavit to ground the judicial review proceedings dated 11 July 2025 it is stated “the fact that the appeal was submitted late was beyond my control…”. This averment is not consistent with the submission made that an appeal was pending as of 13 August 2024.

31. In conclusion having regard to all of the foregoing factors, notwithstanding that the point made at para. (a) above would be sufficient to conclude that an appeal was not pending since 13 August 2024, I am satisfied that an appeal was not pending as of 13 August 2024 and both prior to the application for judicial review and indeed as part of such application for judicial review the fact that an appeal was not pending since 13 August 2024 has been acknowledged by the applicant.

Primary Responsibility

32. In a letter by post and email from the Legal Aid Board to the applicant’s solicitors of

09 August 2024 the Legal Aid Board thanks the solicitors for agreeing to take the appeal and states that responsibility for the conduct of the client’s file is now yours. No email has been furnished or indeed any other communication from the applicant’s solicitors to the Legal Aid Board to challenge this transmission of liability.

33. In a later email of 22 July 2025, the applicant’s solicitors communicated with the Legal Aid Board requesting: - “We would be obliged if you would check to see if you notified the IPO or IPAT or Minister at the time your office or our office was acting. It is likely you did not as the case was at appeal stage, but we just wanted to double check this with you.”

The response from the Legal Aid Board of the same date confirmed “[f]rom a review of our file that the IPO, IPAT or Minister was not notified at the time of referral that our office or your office was acting. We initially sent our authority to the IPO on 06 June 2024 and to date we have received no further correspondence from the IPO, IPAT or Minister.”

34. The above email exchange in my view demonstrates that it was clearly understood by the applicant’s solicitor that responsibility for the file rested with the applicant’s solicitor as of

09 August 2024 and the Legal Aid Board had no further involvement thereafter.

35. In written submissions it is suggested that notwithstanding the transmission of the file in August 2024 the applicant remained under the care of the Legal Aid Board to support a submission that vicarious and primary liability rests with the Legal Aid Board/the State. In this regard the applicant relies on the judgment of Clarke J in Morrissey v HSE [2024] 1 IR 103 at para. 207 thereof: - “There are a number of ways in which a party who has an established relationship with someone such as customer, client or a patient, but who ultimately arranges for relevant work to be done by a third party, may become primarily liable in negligence if something goes wrong. Perhaps the most common such circumstance arises where it can be said that the party with the primary relationship with the customer knew or ought to have known that there was a real risk that the work which was passed on to a third party would not be carried out in an appropriate fashion. For example, a failure to contract with person of proven ability in the area might well provide the basis for a claim in that regard.”

36. The principle of primary liability as contemplated by Clarke J aforesaid has not been engaged with further and I am satisfied in all of the circumstances of the above matter there is no evidence before this Court to support a proposition that liability in this matter can be attributed to a party other than the applicant/the applicant’s solicitor.

37. Both parties have made submissions in respect of the issue as to whether or not a litigant is liable for the acts and errors of its agent, a solicitor. The height of the applicant’s argument in this regard is to rely on the decision of McGuinness J in the Supreme Court in the case of CS & Ors. v The Minister for Justice & Ors. [2005] 1 IR 343 in an application to extend time under O.84 of the Rules of the Superior Court. At para. 59 of that judgment McGuinness J did not consider that the applicant should be held vicariously liable for the actions of her present solicitors. However as aforesaid that decision was made in the context of a “good and sufficient reason” test, does not engage with the concept of “special circumstances”, and in any event the liability of the applicant for the acts or omissions of his agent would be an issue that would fall to be considered under Regulation 4(5)(b) of the 2017 Regulations rather than Regulation 4(5)(a) (see the quote from Nolan above) and therefore doesn’t arise in the context of these proceedings.

Procedures Directive

38. The applicant argues that if the interests of justice are not mandated in any consideration of an extension of time, then this amounts to a breach of the Procedures Directive.

39. I am satisfied that the applicant has not made out grounds to impugn the within decision of the provisions of Regulation 3(b) (providing for the ten-day period within which to bring the appeal) or the provisions of Regulation 4(5) which requires both limbs of the requisite test to be met namely the existence of special circumstances and it would be unjust to extend the time.

40. In this regard on reading Article 39(1) of the Procedures Directive aforesaid the right to an effective remedy is read in the context of Member States providing time limits and other necessary rules for the applicant to exercise his or her right to an effective remedy.

41. It is argued by the applicant that if an extension of time can be considered without engaging in a balance exercise as to the interests of justice, then there is a breach of the Procedures Directive.

42. In my view an effective remedy is available – not only is there a right to appeal the

decision of the IPO to IPAT but there is also a provision for the extension of time to make such appeal subject to compliance with certain requirements. Furthermore, in the light of the foregoing case law (including Nolan) above, I am satisfied that such an argument in the instant circumstances cannot succeed.

43. In the circumstances the application for certiorari and declaratory relief is refused.

Costs

44. As this judgment is being delivered electronically, I shall address the issue of costs. Given the respondents have been entirely successful, it is my provisional view that they should be entitled to their costs, to be adjudicated in default of agreement. As the parties have not had an opportunity to make submissions as to costs, I shall allow the parties to make written submissions of not more than 1,000 words within ten days of this judgment being delivered, should they disagree with the order proposed. In default of such submissions being filed, the proposed order will be made.