High Court refuses certificate for leave to appeal on s.5(6) of Illegal Immigrants (Trafficking) Act 2000 due to lack of legal uncertainty.

THE HIGH COURT JUDICIAL REVIEW

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

[2025] IEHC 611

RECORD NO.

2025/1127/JR BETWEEN M.Y.M.

APPLICANT AND

THE MINISTER FOR JUSTICE, HOME AFFAIRS AND MIGRATION

RESPONDENT

RULING (Certificate Application) of Ms. Justice Siobhán Phelan, delivered on the 7th day of November, 2025

INTRODUCTION

1. This matter comes before me on an application for a certificate for leave to appeal pursuant to s. 5(6)(a) of the Illegal Immigrants (Trafficking) Act, 2000 (hereinafter “the 2000 Act”) from a ruling delivered by me on the 18th of September, 2025, refusing leave to proceed by way of judicial review to challenge a s. 50 refoulement decision and a deportation order issued under s. 51 of the 2015 Act ([2025] IEHC 502). I do not propose to recite the background to these proceedings or my reasoning in refusing leave as both have already been addressed in my earlier written ruling.

PROCEEDINGS

2. Following the communication of the refusal of leave upon the ex parte application on the 18th of September, 2025, counsel for the Applicant indicated an intention to apply for a certificate for leave to appeal on the basis of a point of law of exceptional public importance which it was desirable in the public interest be determined on appeal. As counsel wished to prepare written submissions in support of the application, I adjourned the application into the first week of the new legal term. On that date, it was indicated that more time was required to prepare written submissions resulting in a three-week adjournment. Written submissions were not filed in advance of the adjourned date (the 31st of October, 2025) but were handed into court when the matter was called resulting in a further adjournment to allow for the submissions to be considered.

3. Oral submissions in support of the application were heard on the 7th of November, 2025.

The application, arising from the refusal of an ex parte application, was also heard ex parte and with the benefit of the said oral and written submissions on behalf of the Applicant. As the matter is still at ex parte stage, I have not considered it necessary to require that the Respondent be put on notice of this application. My decision would have been otherwise if at any stage it became clear to me that my decision had the potential to affect the Respondent’s interests in any real or material way and in a manner which could not otherwise be safeguarded later in the process.

PROPOSED QUESTIONS

4. Two questions have been identified on behalf of the Applicant as raising points of law of exceptional public importance in respect of which an appeal is desirable in the public interest, namely:

I. Does s. 5 of the 2000 Act, when interpreted literally exclude s. 50 refoulement decisions from is restrictive regime and is a purposive interpretation allowed to include them; and

II. Is the Minister required to conduct an Article 15(c) assessment in a s. 50 refoulement decision when adopting IPO/IPAT decisions, especially if the Applicant’s refugee claim was rejected on credibility grounds, the applicant is from a conflict-ridden country with evidence of indiscriminate violence and belongs to a vulnerable minority group?

APPLICABLE PRINCIPLES

5. The principles to be applied in an application for a certificate for leave to appeal are well established. The leading authority is Glancré Teoranta v An Bord Pleanála [2006]

IEHC 250 [hereinafter “Glancré”]. In Glancré, MacMenamin J. set out the following principles:

“i) The requirement goes substantially further than that a point of law emerges in or from the case. It must be one of exceptional importance being a clear and significant additional requirement.

ii) The jurisdiction to certify such as case must be exercised sparingly.

iii) The law in question stands in a state of uncertainty. It is for the common good that such law be clarified so as to enable the courts to administer that law not only in the instant, but in future such cases.

iv) Where leave is refused in an application for judicial review i.e. in circumstances where substantial grounds have not been established a question may arise as to whether, logicaly, the same material can constitute a point of law of exceptional public importance such as to justify certification for an appeal to the Supreme Court (Kenny).

vi) The requirements regarding ‘exceptional public importance’ and ‘desirable in the public interest’ are cumulative requirements which although they may overlap, to some extent require separate consideration by the court.

vii) The appropriate test is not simply whether the point of law transcends the individual facts of the case since such an interpretation would not take into account the use of the word ‘exceptional’.

viii) Normal statutory rules of construction apply which mean inter alia that ‘exceptional’ must be given its normal meaning.

ix) ‘Uncertainty’ cannot be ‘imputed’ to the law by an applicant simply by raising a question as to the point of law. Rather the authorities appear to indicate that the uncertainty must arise over and above this, for example in the daily operation of the law in question.

x) Some affirmative public benefit from an appeal must be identified. This would suggest a requirement that a point to be certified be such that it is likely to resolve other cases.”

6. The decision in Kenny v. An Bord Pleanala [2002] 1 ILRM 68, referred to in Glancré was a case involving refusal of a certificate for leave to appeal where there had also been a refusal of leave to proceed by way of judicial review on application of a substantial grounds threshold, as occurred in this case also. McKechnie J. queried, in obiter remarks, how logically it could be said that within the same decision one can have, on the one hand, a failure to establish ‘substantial grounds’, and yet, on the other, have a point of law of exceptional public importance. He observed that no matter what standard is applied to the statutory requirement of ‘substantial grounds’, it cannot be less than that applicable to establishing a point of law of exceptional public importance, concluding that it is difficult to see how at the same time leave to apply for judicial review could be refused, yet certification for leave to appeal follow. He added, however, that he was aware of several cases in which this had occurred.

7. In the later case of Dunnes Stores v. An Bord Pleanála [2015] IEHC 387, McGovern J.

reduced the Glancré principles to four essential principles to be applied as follows:

Firstly, the decision must involve a point of exceptional public importance; Secondly, it must be desirable in the public interest that an appeal shall be taken; Thirdly, there must be an uncertainty as to the law and; Fourthly, the importance of the point must be public in nature and transcend the individual facts and parties of any given case.

8. Considering the provisions of s.5(6)(a) of the Illegal Immigrants (Trafficking) Act 2000, in S.A. v. Minister for Justice and Equality (No.2) [2015] IEHC 266 the High Court identified important additional considerations as follows: Firstly, the application for leave to appeal should be made promptly and ideally within the normal appeal period; Secondly, the question of law should be one which is actually determinative of the proceedings, not one which if answered differently would leave the result of the case unchanged; Thirdly, the grant of leave should provide some added value to any matters already before the Court of Appeal; Fourthly, the question must be formulated

with precision in a manner that indicates how it is determinative of the proceedings and should not invite a discursive, roving, response from the Court of Appeal.

9. In Ógalas Limited v. An Bord Pleanála [2015] IEHC 205 Baker J. stressed the requirement that there be uncertainty in the law coupled with a point of exceptional public importance and stated at para. 4 that:-

“it is not sufficient for an applicant for a certificate to show that a point of law emerges in or from a case, but an applicant must show that the point is one of exceptional public importance and must be one in respect of which there is a degree of legal uncertainty, more than one referable to the individual facts in a case. There must be a public interest in requiring that the point of law be clarified for the common good, but to an extent, if there exists uncertainty in the law, and because clarity and certainty in the common law is a desirable end in itself, and important for the administration of justice, if it can be shown the law is uncertain the public interest suggests an appeal is warranted.”

10. In Shillelagh Quarries Ltd v. An Bord Pleanála [2020] IEHC 22, Barniville J. stated (at para. 28) that, in considering the points or questions put forward as amounting to points of law of exceptional public importance, the task of the court is not to assess the merits of the arguments which may be made by the parties in respect of those points, or the strength or prospects of any appeal based upon them, rather it is primarily to consider whether the law with respect to the particular point advanced is unclear or uncertain.

In that case, Barniville J. distinguished between a point of public importance and one of exceptional public importance and held that, in considering whether a point of law is of “exceptional public importance”, an important task for the court is to determine whether the law in question, to which the point of law relates, is in a state of uncertainty or is evolving. If the law is not uncertain, then the court will generally conclude that the point of law raised is not of “exceptional public importance”.

11. It is clear therefore that a particularly important issue for me to consider on an application for a certificate is whether there is uncertainty in the law.

DISCUSSION AND DECISION

12. I propose to address each proposed question in turn:

The First Question

I. Does s. 5 of the 2000 Act, when interpreted literally exclude s. 50 refoulement decisions from is restrictive regime and is a purposive interpretation allowed to include them;

13. In relation to proposed question 1, the first glaring and incongruous feature of this application is that it was not contended at leave stage before me that this case was captured by s. 5 of the 2000 Act. Indeed, I have revisited the papers in this matter for the purpose of deciding on this consequential application and note that in the opening lines of the written submissions dated 8th of September, 2025, relied upon by me in ruling on the application to proceed by way of judicial review, it is unambiguously stated in writing:

“The standard for review is “substantial grounds.” The 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”).

14. Given that the application was moved before me on the express basis that the decision sought to be impugned was captured by s. 5 of the 2000 Act and its requirements, it is difficult to see how it can now coherently be maintained that a point of law of exceptional public importance arises from my refusal of leave applying the very standard and test which the Applicant told me applied. The point which is now agitated was not only not an issue before me and therefore not decided by me, but the Applicant moved his application on a basis which is at direct odds to the position he now maintains in applying for a certificate to pursue an appeal on this ground.

15. It seems to me that it is indeed a stretch to now contend that my earlier ruling involves a point of law when the issue identified was not an issue in the application and was not itself the subject of a ruling by me. I accept, however, as a matter of principle that a

decision may involve a point of law without that point of law being the subject of

decision and so I have considered whether the threshold set in s. 5(6)(a) of the 2000 Act is met having regard to the point of law identified in the first question.

16. Even if the fact that the issue now sought to be ventilated on appeal was neither argued before me nor decided by me in refusing leave were surmountable on this application for a certificate because the issue now arises in the context of access to an appeal against my decision to refuse leave, it remains the position that the caselaw against the Applicant on the point which it is sought to pursue on appeal is compelling and, in my view, clear and unambiguous. I am helpfully referred in this regard to the decision in E.D. and A.D. (Zimbabwe) v. Minister for Justice [2024] IEHC 303 and A.W.K. v. The Minister for Justice [2020] IESC 10.

17. It is contended on behalf of the Applicant that E.D. and A.D. (Zimbabwe) v. Minister for Justice was wrongly decided because it was based on an incorrect application or extension of the ratio in A.W.K. v. The Minister for Justice. I am not told, however, that there is an extant appeal against the decision E.D. and A.D. (Zimbabwe) v. Minister for Justice. It seems that the decision is final and that the Supreme Court in a written determination ([2024] IESCDET 144) refused leave to appeal against this decision stating:

“15. The Court is of the opinion that the decision of the High Court involved the application of well established principles of statutory interpretation to the statutory provisions at issue in these proceedings. The applicants contend that a matter of general public importance arises as to whether a literal interpretation of s. 5 of the 2000 Act excludes a s. 50 “decision” and, if so,

whether a purposive interpretation may be employed to include a s. 50 “decision”.

16. However, this contention presupposes that a separate “decision” arises under s. 50, independent of the s. 51 decision to deport. The High Court held that there is no statutory requirement for a separate s. 50 decision, in circumstances where the new information submitted could not change the initial decisions not to grant refugee status, and where it was clear that this information could not affect a decision to deport. In such circumstances the negative opinion of the Minister under s. 50 was held to be a “necessary staging post on the way to a s. 51 decision”, rather than a separate independent

decision.

17. In arriving at this finding, the High Court employed well established principles of statutory interpretation, including the requirements to read a statutory provision “in its context”, and not to construe a provision in a manner that would lead to a “pointless absurdity”; see, e.g., Nestor v Murphy [1976] IR 316 at 329. In the circumstances the Court is satisfied that the matters arising are case specific, and are not matters of general public importance justifying an appeal to this Court. 18. Further, the Court is satisfied that the applicants have failed to set out any matter whereby an appeal to this Court should be permitted on the basis of the interests of justice.”

18. It might be observed that the fact that an application for a certificate is being made is an acknowledgement on the part of the Applicant that I am bound by the decision in E.D. and A.D. to conclude that this case comes within the ambit of s. 5 of the 2000 Act.

Notably, Worldport jurisprudence has not been invoked on behalf of the Applicant to invite me to reach a different conclusion to that recorded in E.D. and A.D. (Zimbabwe)

v. Minister for Justice and determine that these proceedings fall outside the scope of s.

5 of the 2000 Act.

19. In certifying that a decision involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken in this case, I would need to be persuaded that there is a lack of clarity in the law, such that the point has a transcending general importance making it desirable in the public interest that the question be determined on appeal. The mere existence of a legal argument does not suffice. There should be a genuine lack of clarity in the law which is of broader application beyond the facts of the individual case.

20. To assess whether there is a genuine lack of clarity in the law, I have considered the submissions made on behalf of the Applicant in respect of A.W.K. v. The Minister for Justice insofar as it has been contended that it does not bear the meaning and effect given to it in E.D. and A.D. (Zimbabwe) v. Minister for Justice in the decision refusing leave in that case. While not a binding precedent, I also have regard to the determination of the Supreme Court refusing leave to appeal against the decision in E.D. and A.D. referred to above. While an argument has been advanced, I am not persuaded by the submissions made on behalf of the Applicant that the basis for distinguishing that decision insofar as decisions under s. 50 are concerned has any real substance or enough substance to establish any real uncertainty in the law such as might justify me in certifying that a point of law of exceptional public importance which requires to be determined in this case.

21. It seems to me that the ratio of the Supreme Court in A.W.K. v. the Minister for Justice equally applies in respect of a challenge to a decision under s. 50 as it does to a challenge to a decision under s. 49(7) of the 2015 Act. As noted in A.W.K., context can be “critical” and it is to be presumed that the legislature did not intend any provision enacted by it to produce an “absurd result” in view of the underlying rationale for the provision in question.

22. Just as the Supreme Court concluded in A.W.K. in the context of a decision on review under s. 49(7) of the 2015 Act, it would undermine the whole purpose of s. 5 restrictions were it possible to circumvent that provision by framing a challenge as one which does not engage consideration of the enforceability of a deportation order made under s. 51, which order is clearly subject to s. 5 of the 2000 Act (pursuant to the express terms of s. 5(1)(oj) thereof). The consideration of the Minister under s. 50 of the 2015 Act as to whether to enforce a deportation order is not a decision which exists independently of the deportation process. It is clear from the terms of s. 50 that the Minister’s opinion in respect of the prescribed considerations is intrinsically tied with the enforceability of the deportation order made under s. 51 and it would make no sense at all therefore to

treat the non-refoulement consideration process as a separate decision-making process falling outside s. 5 of the 2000 Act.

23. Based on the cogent reasoning of the Supreme Court in A.W.K., I am satisfied that the law is crystal clear and no uncertainty exists which might warrant the grant of a certificate on this question. The only distinguishing feature between this case and A.W.K. is that the Supreme Court was focusing on an earlier stage of the process. Given the clear reasoning of the Supreme Court, however, this distinguishing feature is not enough to establish any legal uncertainty. Of course, if I am wrong in my view on this, then a certificate granting leave to appeal would not be required in any event and my refusal of a certificate granting leave to appeal would not operate as any impediment to the bringing of an appeal.

24. Insofar as the application to me is concerned, the cumulative nature of the test is also important. Not only should the decision involve a point of law of exceptional public importance which requires to be clarified but, in addition, it is required that it is desirable in the public interest that an appeal be taken. I have difficulty accepting that anything in the facts and circumstances of this case make it desirable in the public interest that an appeal be taken, recalling specifically the approach adopted in seeking leave which was unequivocal in acknowledging that s. 5 of the 2000 Act applied in this case, which very approach acknowledges a lack of genuine doubt as to the applicability of that provision on the Applicant’s part. I cannot accept that the Applicant laboured under any ambiguity in this regard with the result that this case is not one in which it would be appropriate to certify this question in this case.

25. For these reasons I am not satisfied that the first question reaches the threshold set in s.5(6)(a) of the 2015 Act.

The Second Question

Is the Minister required to conduct an Article 15(c) assessment in a s. 50 refoulement decision when adopting IPO/IPAT decisions, especially if the Applicant’s refugee claim was rejected on credibility grounds, the applicant is from a conflict-ridden country with evidence of indiscriminate violence and belongs to a vulnerable minority group?

26. In this question, the Applicant returns to the core legal grounds advanced in seeking leave to proceed by way of judicial review. The arguments mirror arguments already considered by me in refusing leave. I acknowledge that the “substantial grounds” test governing the grant of leave under s. 5(2) of the 2000 Act is not on all fours with the test governing the grant of a certificate of leave to appeal under s. 5(6)(a). Nonetheless, it difficult to conceive of any circumstances in which I would refuse leave on the application of a substantial grounds test (a relatively low test as interpreted through the caselaw), absent some feature in the case which operated to disqualify an applicant such as standing or time limits or lack of candour or futility of an effective, alternative remedy (none of which does not arise here), but yet conclude the case raised a point of law of exceptional public importance. The latter is a far more onerous test, compounded by the requirement that it be desirable in the public interest that the exceptional question be determined. It seems to me that any point of law in respect of which there is some uncertainty which is potentially determinative of proceedings and therefore properly arises should meet the low substantial grounds threshold under s.

5(2) of the 2000 Act. Bearing in mind that it is established that the power to certify an appeal on a point of law is to be exercised sparingly, and only in cases where the legal question is genuinely significant and unresolved, the same cannot be said of the s.5(6)

test. I agree with McKechnie J. in Kenny that the test is unlikely to be met in a case where a relatively low “substantial grounds” test has operated to refuse leave.

27. The fact that I have refused leave to seek judicial review on this ground for the reasons set out in my written ruling delivered on the 18th of September, 2025, reflects my view that far from being a point of law of exceptional public importance, the point lacked any real merit. Had I considered the point to be other than tenuous or to have any real substance, I would have acceded to the application for leave. It seems to me that if the point were sufficiently stateable then it would follow that were any ambiguity resolved in the Applicant’s favour it could ground the grant of orders in favour of the Applicant thereby warranting the grant of leave.

28. My consideration of the second question could possibly end here as I have already concluded on the application of a low test that the legal argument lacks merit. I am mindful, however, that I should approach the mooted question on the basis that I may be wrong in my assessment of the weakness of the argument made. It is well established that the court considering an application for leave to appeal should not get into the merits of the arguments which resulted in the substantive decision of the court from which leave to appeal is sought. Nor is it appropriate for an intending appellant to seek to reargue the points already decided upon by the court in its substantive decision.

Instead, on this application, I should divorce myself from my view on the merits of the legal argument. Instead, I should consider whether the test for the grant of a certificate for leave to appeal is met on the assumption that I may have been wrong in the conclusions I have already reached on the merits in refusing leave but with a renewed focus in this application on whether it has been demonstrated that there is a want of legal certainty arising in connection with the question sought to be pursued on appeal.

29. I have considered the arguments now advanced by way of submission in support of a certificate granting leave to appeal with a view to seeing if notwithstanding my refusal of leave in this case anything advanced persuades me that there is a point of exceptional public importance identified which it is desirable in the public interest should be clarified on appeal. To this end, my point of departure has been whether there is a lack of legal certainty as to the range of factors the Minister must consider under s. 50 of the 2015 Act. I accept that if there is some lack of legal certainty, then I must also consider whether the question has systemic or broader implications in the sense of meeting the test for a broader public interest in a clarification of the issue.

30. Viewing the question through the prism of whether there is a want of legal certainty, it is important to situate s. 50 of the 2015 Act within the international protection system established under the Act as a whole. Section 50 of the 2015 Act applies at the end of the protection process and provides for a prohibition of refoulement. The process which is bookended by the s. 50 application provides for a full consideration of an international protection claim at first instance, a right of appeal and a right to seek permission to remain on humanitarian grounds. The said process also provides for a subsequent application for international protection where new elements or findings have arisen or have been presented by the person which make it significantly more likely that the person will qualify for international protection, and the person was, through no fault of the person, incapable of presenting those elements or findings for the purposes of his or her previous application. At the end of this detailed process, s.

50 provides that:

“A person shall not be expelled or returned in any manner whatsoever to the frontier of a territory where, in the opinion of the Minister—

(a) the life or freedom of the person would be threatened for reasons of race, religion, nationality, membership of a particular social group or political opinion, or

(b) there is a serious risk that the person would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment.”

31. The language of s. 50 is clear. The matters which the Minister is required to consider in forming an opinion under s. 50 at the tail end of the decision-making process are expressly stated, unambiguous and finite. The Minister is not required under the terms of s. 50 of the 2015 Act to consider Article 15(c) of the Qualification Directive at this end stage of the process. It is recalled that Article 15(c) of the Qualification Directive is addressed to a risk of serious and individual threat to life or person by reason of indiscriminate violence in situations of armed conflict and this risk is assessed as part of the international protection claim before a deportation order is made or on an application to revoke the deportation order or on any permitted subsequent application.

32. As already addressed in my ruling on the leave application, the Applicant has not pointed me to any provision of EU law which mandates routine consideration of Article 15(c) of the Qualification Directive again after the making of a deportation order and before it is enforced. The requirements of the Qualification Directive insofar as the obligation to consider protection needs against the risks specified in Article 15(c) is concerned are discharged through the elaborate statutory process which provides for a full consideration of a protection claim and provides for the possibility of a subsequent assessment and the revocation of a deportation order. I have not been referred to any provision of EU law which would require that s. 50 be read as if a further limb were added to the prohibition on non-refoulement at the end of that process and where Article 15(c) considerations form part of that process.

33. In forming an opinion under s. 50, the Minister is not reconsidering the entire protection claim anew. Instead, where fresh consideration of the protection claim is warranted, separate provision is made for such consideration. At risk of unnecessary repetition, were it considered that a risk of serious harm arose due to a change in circumstances since full consideration of the international protection application (including Article 15(c) of the Qualification Directive) it is open to a claimant to make a subsequent application under s. 22 of the 2015 Act or to apply to revoke the deportation order.

34. It bears note in the context of considering whether legal uncertainty has been demonstrated that I have not been referred to any other case in which it has been contended that the Minister has erred in failing to conduct an Article 15(c) assessment under s. 50 of the 2015 Act and there is no factual basis for concluding that practitioners are confused as to the extent of the prohibition on non-refoulement in s. 50. Nor is there any suggestion that there have been conflicting decisions on the scope of the duty of consideration on the Minister under s. 50 of the 2015 Act. In the circumstances, I cannot accept that there is any lack of certainty in the law.

35. I am not satisfied that the Applicant has demonstrated any confusion as to the proper interpretation and application of s. 50. The case made is one which supposes an additional limb to the test under s. 50(1) but without rooting the requirement to interpret the provision as so providing, even when it does not do so in language from which such an intention on the part of the Oireachtas might be inferred, in some provision of EU law or other international obligation capable of direct application without a transposing measure or at all. Section 50 forms part of a broader process which is designed to ensure that relevant protection needs are fully considered but does not in its own terms require further full consideration before enforcing a deportation order.

36. In the absence of legal uncertainty, a question of law which might warrant consideration as to its exceptionality or the desirability of an appeal simply does not arise. I accept, however, that were there a basis for contending that the law was uncertain, then I would have little hesitation in concluding that the question would have systemic implications and would reach the threshold as a matter requiring clarification in the public interest in an appropriate case. However, where the legal uncertainty invoked is contrived based on an interpretation for which no legal authority or support is advanced, then it is my view that the Applicant does not meet the primary limb of the s.5(6) test.

Accordingly, it is unnecessary to proceed to rule on the next limb of a cumulative test.

CONCLUSION

37. For reasons more fully set out above, I have not been persuaded that either of the two questions for which leave to appeal is sought identifies a point of law in respect of which some uncertainty exists, still less a point of exceptional public importance.

Furthermore, I do not consider that an appeal on either point is necessary to resolve conflicting decisions or address systemic issues or any other circumstances that would make it desirable that the case be appealed. As I do not consider that it has been established that the law is uncertain or in need of clarification, I refuse this application for a certificate for leave to appeal.