High Court allows judicial review where IPAT failed to consider material police summons evidence on credibility.

APPROVED [2025] IEHC 606

THE HIGH COURT

JUDICIAL REVIEW

2024 585 JR

IN THE MATTER OF SECTION 5 OF THE ILLEGAL IMMIGRANTS

(TRAFFICKING) ACT 2000 (AS AMENDED)

AND IN THE MATTER OF THE INTERNATIONAL PROTECTION ACT 2015

BETWEEN

C. (NIGERIA) (UNCONSIDERED DOCUMENTS)

APPLICANT

AND

INTERNATIONAL PROTECTION APPEALS TRIBUNAL

MINISTER FOR JUSTICE HOME AFFAIRS AND MIGRATION

RESPONDENTS

JUDGMENT of Mr. Justice Garrett Simons delivered on 12 December 2025

INTRODUCTION

1. These judicial review proceedings relate to a decision to refuse to recognise the applicant as a refugee and/or as a person entitled to subsidiary protection. The

decision was made, on appeal, by the International Protection Appeals Tribunal (“IPAT”). The IPAT held, in effect, that the applicant’s claim for international NO FURTHER REDACTION REQUIRED protection lacked “general credibility”. This finding was grounded, in large measure, on a supposed failure on the part of the applicant to produce any “vouching documentation” to substantiate her claim.

2. Leave to apply for judicial review has been granted on a single ground to the effect that the IPAT failed to consider a document submitted on appeal. The document consists of a letter from the Nigerian police force summonsing the applicant to attend for interview (“the police summons”). The applicant contends that the police summons is relevant to the credibility assessment undertaken by the IPAT and, in particular, tends to corroborate the involvement of the Nigerian State in matters touching upon her sexual orientation. In response, the IPAT submits first, that there is no evidence that the police summons had not been considered; and, second, that the document does not satisfy the requisite threshold of materiality to allow for the setting aside of the impugned immigration decision.

3. It should be explained that the minor children of the unsuccessful applicant for international protection have been joined to the judicial review proceedings as co-applicants. The single ground of judicial review is, however, concerned solely with the assessment of the principal applicant’s personal circumstances. For ease of exposition, it is proposed to refer simply to the position of the principal applicant. It is not necessary, for the purpose of the judicial review proceedings, to address the position of the minor co-applicants separately. All references in this judgment to “the applicant” (singular) should be understood as describing the principal applicant alone.

PROCEDURAL HISTORY

4. The applicant, a Nigerian national, applied for international protection on 2 June 2022. The applicant identifies as bisexual and claims that she is at risk of persecution in Nigeria in consequence of her sexual orientation. The applicant expresses concern that she may be prosecuted and that her children may be taken away from her. (See IPO Questionnaire, §4.5, §4.6 and §7.2).

5. The decision at first instance is dated 19 May 2023 and recommended the refusal of both refugee status and subsidiary protection. A notice of appeal to the IPAT was lodged on 2 August 2023. Thereafter, on 16 August 2023, the applicant’s solicitor emailed a single attachment to the IPAT’s secretariat. The attachment consisted of an official letter purportedly sent to the applicant by the Nigerian police force.

6. To protect the anonymity of the applicant as required under the International Protection Act 2015, the full text of the letter is not rehearsed as part of this judgment. It is sufficient for the purpose of the narrative to note the following. The letter is headed up “invitation letter to police station” and cites a case of conduct likely to cause breach of the public peace in terms which refer to “indecent sexual display on [a] female (bisexual)”. The name of a complainant and the date of the alleged breach of the public peace is stated.

7. The letter goes on, then, to invite the addressee to report to a specified police station at a specified date and time so that “the office can carry out their investigation and for the conclusion of the case”. The letter finishes by stating that legal action will be taken if the addressee does not honour the invitation. Having regard to the mandatory nature of same, this letter will be referred to throughout this judgment as “the police summons”. This term more accurately reflects the character of the document than the euphemistic term “invitation”.

8. (It should be explained that there is a discrepancy in the police summons in that the relative timing of the alleged breach of the peace vis-à-vis the sending of the letter appears to be incorrect. Again, the detail of this discrepancy is not published as part of this judgment in order to protect the anonymity of the applicant. As discussed at paragraph 34 below, the IPAT seeks to make something of this discrepancy).

9. The solicitor’s email, which forwarded the copy of the police summons to the IPAT, states as follows: “Please see the attached documentation provided by our client in support of her application”. The IPAT’s secretariat acknowledged receipt of the email on the same date and stated that the contents had been “duly noted and circulated to the relevant personnel in the Tribunal”.

10. Further materials, including country of origin information (“COI”) and character references, were furnished to the IPAT by the applicant’s solicitors in September, October and November 2023. Written submissions were submitted on behalf of the applicant on 11 December 2023. These written submissions did not refer expressly to the police summons.

11. The IPAT convened an oral hearing on the immigration appeal, by way of audio‑visual link, on 14 December 2023. Thereafter, the IPAT issued its

decision on 19 March 2024 (“the impugned decision”).

12. The impugned decision sets out, at paragraph 2.16 thereof, a numbered list of documents which the IPAT states were considered. The police summons does not appear as part of this numbered list. The impugned decision goes on to state, at paragraph 2.18 thereof, that “All of the documentation, (non‑exhaustive), COI (non‑exhaustive) and submissions and grounds of appeal provided have been fully considered”. There is no mention of the police summons at any point in the impugned decision.

13. The IPAT stated that it did not find the applicant’s general narrative credible, on the balance of probabilities, and that it was not, therefore, in a position to afford her the benefit of the doubt on any matter. The implication being that the threshold conditions for applying the benefit of the doubt (under section 28 of the International Protection Act 2015) had not been met.

14. The IPAT’s credibility assessment emphasised the absence of documentary corroboration. See paragraph 4.13 of the impugned decision as follows:

“As the Appellant has produced no substantial external

consistency to her case in the form of vouching

documentation as the Tribunal would expect from a woman

of her education and her husband’s education. This is a

negative credibility factor.”

15. These judicial review proceedings were instituted on 29 April 2024. Thereafter, the High Court (Barr J.) granted leave on a single ground on 7 October 2024. The single ground concerns an alleged failure on the part of the IPAT to consider the police summons. Leave had been granted without prejudice to the determination, at the substantive stage, of any point in relation to time-limits.

16. The parties subsequently filed written submissions on 19 March 2025 and

25 June 2025, respectively. The proceedings came on for hearing before me on

30 October 2025. Judgment was reserved to today’s date.

EXTENSION OF TIME

17. These proceedings postdate the amendment introduced under the Rules of the Superior Courts (Order 84) 2024 whereby an application for leave is now treated as having been “made” on the date upon which papers are filed in the Central Office of the High Court. The new rule came into effect on 26 April 2024. The papers in these proceedings were filed on 29 April 2024 and this constituted the “making” of the leave application.

18. (Under the original version of the Rules of the Superior Courts, an ex parte application for leave had only been treated as having been “made” when moved or opened before a judge of the High Court: see, generally, Heaney v. An Bord Pleanála [2022] IECA 123).

19. Section 5 of the Illegal Immigrants (Trafficking) Act 2000 (as amended) stipulates that an application for leave to apply for judicial review of a decision of the IPAT shall be made within the period of twenty-eight days commencing on the date on which the person was notified of the decision concerned unless the High Court considers that there is good and sufficient reason for extending the period within which the application shall be made.

20. The impugned decision was notified on 25 March 2024. Proceedings were filed on 29 April 2024, i.e. seven days outside the statutory period.

21. The principles governing an extension of time under the original version of section 5 of the Illegal Immigrants (Trafficking) Act 2000 were considered by the Supreme Court in G.K. v. Minister for Justice [2002] 2 IR 418, [2002] 1 ILRM 401. The judgment emphasises that the statute does not say that the time may only be extended if there were “good and sufficient reason for the failure to make the application within” the prescribed period. The Supreme Court has recently reiterated, in the context of the similarly worded time-limit under the Planning and Development Act 2000, that the provision does not say that time may only be extended if there is good and sufficient reason for the failure to make the application within the prescribed period, which would focus exclusively on the reasons for the delay, but instead refers to “good and sufficient reason” for extending the period, which involves a broader discretion (Thomson v. An Bord Pleanála [2025] IESC 31 (at paragraphs 67 to 69)). This is an important distinction in a case such as the present where, if considered in isolation, the explanation for the delay within the twenty-eight day period might not have been enough to justify an extension of time. The judgment in Thomson v. An Bord Pleanála goes on to state (at paragraph 79) that it may, of course, be very important for an applicant to seek to explain the entire period of delay, and that a failure to do so may normally put the applicant at serious risk of not getting an extension or even give rise to a presumption against the grant of an extension. However, the Supreme Court rejected a submission that any such failure was per se fatal to an application for an extension of time.

22. It is also instructive to consider the analogous principles governing an extension of time under Order 84, rule 21. These have recently been summarised by the Court of Appeal in Arthropharm (Europe) Ltd v. Health Products Regulatory Authority [2022] IECA 109 (at paragraph 87). The factors of which account may be taken will include the nature of the order or actions the subject of the application, the conduct of the applicant, the conduct of the respondent, the effect of the decision it is sought to challenge, any steps taken by the parties subsequent to that decision, and the public policy that proceedings relating to the domain of public law take place promptly except where good reason is furnished. The “blameworthiness” of an applicant is relevant, albeit as only one such factor to be weighed in the balance.

23. It should be observed that the threshold under Order 84, rule 21 appears to be a higher one, insofar as the court, in addition to being satisfied that “good and sufficient” reason exists for an extension of time, must also be satisfied, as a matter of fact, that the circumstances which resulted in the delay were outside the control of the applicant. There is no equivalent requirement under section 5 of the Illegal Immigrants (Trafficking) Act 2000 (as amended).

24. For the reasons which follow, this court is satisfied that there is “good and sufficient reason” for extending time in this case.

25. First, the failure to file the judicial review proceedings in the Central Office of the High Court within the twenty-eight day period has not caused any actual delay in the proceedings coming on for substantive hearing. This is significant: the legislative intent underlying the imposition of a short time-limit is to ensure that any legal challenge to the implementation of an immigration decision, which meets the leave threshold, be heard and determined promptly. The twenty-eight day time-limit is complemented by a statutory provision to the effect that the High Court shall give such priority as it reasonably can, having regard to all the circumstances, to the disposal of specified immigration proceedings (Section 5(7) of the Illegal Immigrants (Trafficking) Act 2000 (as amended)). The time-limit does not exist in a vacuum nor is it intended to penalise applicants. Rather, the time-limit is intended to facilitate the prompt hearing and determination of legal challenges to immigration decisions. If non-compliance with the time-limit has not caused any actual delay, then it would be disproportionate to dismiss proceedings on this basis.

26. Second, the lack of prejudice to the respondents must be weighed against the potential prejudice to the applicant. The practical effect of the refusal of an extension of time would be to preclude the applicant from challenging what she says is an invalid decision refusing her international protection. This is a significant prejudice and occurs in circumstances where the applicant herself is not to blame for the failure to comply with the time-limit.

27. The third reason is closely related to the second. In the present case, the application for an extension of time and the substantive judicial review were heard together, i.e. as part of an omnibus hearing. (It will be recalled that the court granting leave had not determined the time-limit point conclusively). The practical consequence of this procedural history is that this court has had the benefit of full argument on the substantive judicial review prior to its ruling on the time-limit point.

28. A question arises as to the extent, if any, to which a court is entitled to have regard to the underlying merits of the judicial review proceedings in deciding whether to extend time. Certainly, in a case where an application for an extension of time is addressed in advance of the trial of the action, the merits will generally only be relevant if the claim for judicial review lies at either end of a spectrum, i.e. it is immediately obvious that the claim is either unarguable or unanswerable. Were it otherwise, an application for an extension of time would be converted into a trial of the merits of the proceedings, defeating at least part of the purpose of the rule giving rise to the necessity to seek an extension of time in the first place (Arthropharm (Europe) Ltd v. Health Products Regulatory Authority (cited above)).

29. Different considerations pertain in cases, such as the present, where the application for an extension of time has been heard in tandem with the substantive judicial review. It would be artificial for the trial judge, having heard the proceedings in full, to close his or her mind to the underlying merits of the case. It would be disproportionate to refuse an application for judicial review in immigration proceedings, which the court has determined to be well founded on the merits, on the basis that the leave application was out of time by days or weeks. The disbenefit to the applicant, i.e. the loss of an opportunity to a proper determination of their claim for international protection, would be out of all proportion to any benefit to the public interest in the expeditious resolution of legal challenges. This is especially so where the non-compliance with the timelimit was minimal (seven days) and did not cause any actual delay to the ultimate resolution of the proceedings.

30. This is illustrated by the circumstances of the present case. The objective which the statutory time-limit had been intended to achieve, namely the prompt resolution of legal challenges to immigration decisions, has not been realised. A legal challenge to an immigration decision, which had been made in March 2024, has only been resolved by December 2025. This court has concluded, for the reasons outlined in the balance of this judgment, that the IPAT’s decision to refuse international protection is invalid. The refusal of an extension of time would only serve to penalise the applicant by denying her a lawful determination of her application for international protection. There would be no countervailing benefit to the public interest.

DISCUSSION

(1). Whether IPAT considered the police summons

31. The first issue to be addressed is whether or not, on the balance of probabilities, the IPAT considered the police summons as part of its assessment of the applicant’s credibility.

32. Counsel on behalf of the IPAT relies on what might be described as a presumption of regularity: it is submitted that where a decision-maker expressly states that they have considered all the material put before them, it should be presumed that the decision-maker did, in fact, do so. It is accepted that any such presumption is rebuttable. Counsel cites, in particular, G.K. v. Minister for Justice [2002] 2 IR 418, [2002] 1 ILRM 401 and Rana v. Minister for Justice [2024] IESC 46 (at paragraphs 92 and 93). In the latter judgment, the Supreme Court reiterated that a statement by a decision-maker that they have considered all the material put before them is sufficient, without further affidavit evidence, unless there is some evidence-based reason to think that they did not. The Supreme Court also explained that decision-makers, in an immigration context, are not required to list out everything that has been put before them and address each aspect individually.

33. For the reasons which follow, I am satisfied that the presumption is rebutted in the circumstances of the present case. First and foremost, the supposed absence of any vouching documentation is expressly cited by the IPAT as part of its rationale for its credibility assessment. It is inconceivable that the IPAT would have made such a statement had it had sight of the police summons. This is because the police summons unquestionably constitutes a form of vouching documentation. If valid, it is corroborative of the applicant’s claim that she is at risk of imprisonment by the Nigerian State in consequence of her sexual orientation.

34. It is correct to say, as counsel for the IPAT does, that there is a discrepancy in the dates appearing in the police summons. This discrepancy might be the result of a typographical error or something more fundamental. Had the IPAT considered the police summons, it would have been open to it to interrogate the authenticity of the document. Indeed, the IPAT might, in principle, have discounted the weight, if any, to be attached to the document. All of these outcomes are, however, contingent on the IPAT actually having had sight of the police summons. The IPAT might, for example, have said that the only vouching documentation produced by the applicant consisted of a police summons which the IPAT considered to be of doubtful authenticity. The one thing the IPAT could not have sensibly done is to state baldly, without any qualification, that no vouching documentation had been proffered. The fact of the police summons having been proffered as vouching documentation would remain a fact even if the IPAT had ultimately determined that it was not corroborative of the claim for international protection because it was of doubtful authenticity. The statement that there was no vouching documentation is only consistent with the IPAT not having had sight of the police summons.

35. Second, the procedural history is such that it is entirely plausible that the member of the IPAT who determined the immigration appeal might not have seen the police summons. It will be recalled that the police summons had been submitted separately to the IPAT’s secretariat, a number of days after the appeal proper had been lodged. It is reasonable to infer that the late submission might not have made its way onto the appeal file and hence would not have been seen by the tribunal member.

36. Third, the police summons is not enumerated as part of the list of documents said to have been considered by the IPAT. The case law in respect of immigration

decision-making confirms that it is not necessary for a decision-maker to list out everything that has been put before them. Some slight weight can, however, be attached to the omission in the circumstances of the present case when combined with points one and two above. The omission tends to support the inference that the tribunal member did not have sight of the document. See, by analogy, B.C. (Zimbabwe) v. International Protection Appeals Tribunal [2019] IEHC 488 (at paragraph 6). It was observed there that the omission of documents from an enumerated list did not inspire confidence that they were in fact considered.

(2). Legal consequence of non-consideration

37. The IPAT is obliged, in co-operation with an applicant, to assess the relevant “elements” of their application for international protection. What is meant by the term “elements” is elaborated upon at section 28(3) of the International Protection Act 2015 (“IPA 2015”). The term includes all the documents submitted by an applicant regarding his or her reasons for applying for international protection. The police summons comes within this category of documents. The applicant’s claim for international protection had been advanced on the basis that she had a concern that she would be prosecuted in consequence of her sexual orientation. The applicant had cited Nigerian legislation which criminalised certain acts between persons of the same sex.

38. The police summons is directly relevant to that aspect of the claim for international protection. The document, on its face, indicates that the police were investigating conduct consisting of same-sex activity which was alleged to constitute a criminal offence.

39. The prosecution or punishment of an individual by reference to their sexual orientation is capable of amounting to an act of persecution for the purpose of international protection if disproportionate or discriminatory. See, in particular, sections 7 and 8 of the IPA 2015.

40. It follows, therefore, that the police summons should have been examined as part of the assessment of the claim for international protection. The failure to do so represents a failure to have regard to a relevant consideration.

41. The general rule is that a failure to have regard to a relevant consideration constitutes a good ground for judicial review. There is, however, a suggestion in some of the case law that an immigration decision will not be set aside on this ground unless the unconsidered document satisfies an additional threshold of “materiality”. What is meant by this is that an applicant for judicial review must establish that had the document been properly considered, the immigration

decision would likely have been different. Put otherwise, the case law suggests that there may be a tolerance for the failure to consider a particular document in circumstances where consideration of same is not likely to have affected the outcome of the decision-making process.

42. On this analysis, it is not enough that a document is relevant: it must also be material to the outcome of the immigration decision. The precise threshold to be met has been formulated in a number of different ways. The highwater mark is that the court of judicial review must be satisfied beyond a reasonable doubt that the missing documentation could have made no difference to the immigration decision: S.E. v. Minister for Justice and Equality [2022] IEHC 138 (at paragraph 35).

43. In A.M.C. (Mozambique) v. International Protection Appeals Tribunal [2018] IEHC 133, the High Court (Humphreys J.) opined that the question is not whether the content of the unconsidered document would necessarily have changed the outcome, but whether it was capable of influencing the immigration

decision. If so, failure to have considered same renders the immigration decision invalid.

44. The introduction of a threshold of materiality gives rise to some conceptual challenges. It appears to require the court of judicial review to engage, to a limited extent, with the substantive merits of the immigration decision-making process. An assessment of whether the unconsidered document is “material”, i.e. in the sense of being capable of affecting the outcome, necessitates some examination of the rationale for the immigration decision and whether same would likely have been different had, counterfactually, the unconsidered document been before the decision-maker. This may be difficult to reconcile with the orthodoxy that, save in cases of irrationality, the court of judicial review does not concern itself with the substantive merits of the impugned immigration

decision.

45. To date, the case law has sought to pitch the threshold of materiality at a very low level, with the practical consequence that relief by way of judicial review will only be refused if the immigration decision would undoubtedly have been the same even had the missing document been properly considered. Put otherwise, if there is any reasonable prospect that the content of the unconsidered document might have affected the outcome, the document surmounts the low bar for materiality.

46. In the event, the precise formulation of the threshold of materiality was not addressed in detail by the parties in the present proceedings. Both parties relied, without demur, on O.M. v. International Protection Appeals Tribunal [2025] IEHC 51. That judgment appears to require (at paragraph 10) that the court of judicial review must be satisfied beyond a reasonable doubt that consideration of the missing documentation could have made no difference to the impugned decision.

47. It is unnecessary, for the resolution of the present proceedings, to reach a concluded view on the precise threshold. This is because the police summons is so significant that it would satisfy any version of the threshold. There is a real likelihood that the outcome of the immigration appeal would have been different had the IPAT considered the police summons.

48. This is because the police summons has a direct bearing on the core of the claim for international protection, namely that the applicant was at risk of prosecution by reference to her sexual orientation. The document, on its face, indicates that the police were carrying out a criminal investigation into the applicant personally. The complained-of conduct consisted of same-sex activity which was alleged to constitute a criminal offence. This tends to corroborate the applicant’s claim that she was personally at risk of prosecution in consequence of her sexual orientation. Put otherwise, the claim for international protection was being advanced by reference to a specific incident involving the applicant as an individual, rather than exclusively in the abstract by reference to the criminal law in Nigeria.

49. In its impugned decision, the IPAT recognised, correctly, that documentary evidence, where it exists, may be significant to any assessment of credibility. It is paradoxical, therefore, for the IPAT to argue in the judicial review proceedings that the police summons is not material. Having expressly relied on the supposed absence of any vouching documentation to reach an adverse finding on credibility, it is a volte-face for the IPAT to seek to discount the existence of the (previously unconsidered) police summons as immaterial to the credibility assessment.

50. With respect, the stance taken by the IPAT for the purpose of the judicial review proceedings is untenable. On any analysis, the police summons was material to the assessment of the claim for international protection. The failure to consider same vitiates the decision to refuse international protection. It is no answer to suggest that there might be reason to doubt the authenticity of the document (by reference, in particular, to the discrepancy in dates). This is to misunderstand the supervisory nature of the judicial review jurisdiction. The court of judicial review is concerned primarily with the legality of the decision-making process. The court of judicial review does not carry out its own credibility assessment: that is a matter for the IPAT. In a case where the court of judicial review determines that there has been a failure on the part of the IPAT to take into account a relevant consideration (certainly one which reaches a threshold of materiality), the appropriate remedy is to set aside the immigration decision and remit the matter for reconsideration by a differently constituted panel of the IPAT. The court of judicial review does not step into the shoes of the IPAT and determine the claim for international protection as if it had been made to it in the first instance. It follows, therefore, that any argument as to the authenticity of the police summons falls to be addressed as part of the reconsideration by the IPAT.

51. The question for the court of judicial review is not whether the police summons should ultimately be accepted as authentic, but rather whether it attains the threshold of relevance and materiality such that the failure to consider it vitiates the decision. A different approach might be appropriate in an extreme case where a document, which has been proffered as corroborative, is self-evidently inauthentic. This contingency does not arise in the present proceedings: the police summons passes muster on initial perusal. It is now a matter for the new panel of the IPAT to consider its authenticity in more detail.

52. For completeness, the fact that the applicant’s written submissions on the immigration appeal to the IPAT did not expressly elaborate upon the significance of the police summons does not absolve the IPAT of its statutory duty. The IPAT is required, in co-operation with an applicant, to assess the relevant elements of the application for international protection. The police summons had been submitted and receipt acknowledged. Had the relevant tribunal member had sight of the police summons, the relevance and materiality of same would have been immediately apparent. This is so irrespective of whether or not the police summons had been expressly highlighted in the written submissions. The IPAT cannot rely on the happenstance of same not being referred to in the written submissions as remedying its own omission to have regard to all of the relevant and material documents submitted, including the police summons.

CONCLUSION

53. The court has concluded, on the balance of probabilities, that the IPAT did not consider the police summons as part of its assessment of the applicant’s credibility. The police summons is both relevant and material to any assessment of the applicant’s claim for international protection. There is a real likelihood that the outcome of the immigration appeal would have been different had the IPAT considered the police summons. (Paragraphs 47 to 52 above).

54. Accordingly, the IPAT’s decision of 19 March 2024 will be set aside. The immigration appeal will be remitted, pursuant to Order 84, rule 27 RSC, to a differently constituted panel of the IPAT with a direction to reconsider it and reach a decision in accordance with the findings of the court. It should be emphasised that the assessment of the authenticity of the police summons is a matter for the IPAT. It has not been prefigured by anything said in this judgment.

55. The court’s order will recite that an extension of time has been granted pursuant to section 5 of the Illegal Immigrants (Trafficking) Act 2000 (as amended). The reasons for this extension are explained at paragraphs 24 to 30 above.

56. As to legal costs, the court’s provisional view is that the applicant, having been “entirely successful” in the application for judicial review, is entitled to recover her costs as against the respondents in accordance with the default position under section 169 of the Legal Services Regulation Act 2015. If the respondents wish to contend for a different form of costs order, then their solicitor should contact the registrar on or before 19 January 2026 and arrange to have this matter relisted in the new legal term.

Appearances

Philip Moroney for the applicants instructed by Ferrys Solicitors LLP Hugh Guidera for the respondents instructed by the Office of the Chief State Solicitor