High Court dismisses judicial review of Minister's refusal to review previous refusal of international protection. The court finds the Minister's decision lawful and compliant with statutory requirements.

APPROVED

AN ARD-CHÚIRT

THE HIGH COURT

[2025] IEHC 629

Record No. 2024/1386JR

BETWEEN:

S.M.

APPLICANT

-AND-

THE MINISTER FOR JUSTICE

RESPONDENT

JUDGMENT of Mr. Justice Conleth Bradley delivered on the 14th day of November 2025

INTRODUCTION

Preliminary

1. The issue in this case concerns the exercise by the Minister for Justice (“the Minister”) of the residual statutory power pursuant to section 49 of the International Protection Act 2015 (“the 2015 Act”) - where the International Protection Appeals Tribunal (“IPAT”) had affirmed a decision of the International Protection Office (“IPO”), pursuant to section 39(3)(c) of the 2015 Act, that the Applicant should be given neither a refugee declaration nor a subsidiary protection declaration, and the requirement, upon receiving information from the Applicant in accordance with section 49(9) - to review a previous ministerial decision taken pursuant to section 49(4)(b) of the 2015 Act to refuse to give the Applicant permission to remain.

Background

2. The Applicant is a Zimbabwean National. He applied for international protection in the State on 31st May 2022, having arrived in Ireland on the previous day from South Africa.

3. He was interviewed by the IPO pursuant to section 35 of the 2015 Act.

4. By letter dated 21st March 2023, the Applicant was furnished with a section 39 report dated 7th March 2023, in which the IPO recommended that he be given neither a declaration of refugee status nor subsidiary protection. He was also furnished with a first instance section 49(3) report dated 20th March 2023, refusing him permission pursuant to section 49(4)(b) of the 2015 Act.

5. In summary, the Applicant’s account was found not to be credible and it was determined that he had provided an inconsistent account of his claims of being beaten and tortured in Zimbabwe for political reasons. For those reasons, his application for international protection was denied.

6. The Applicant appealed that decision to the IPAT. In the course of that appeal in September 2023, he submitted a medico-legal assessment (“the SPIRASI Report”) and a Formetric Clinical Evaluation (“FCE”) to the IPAT. In summary, the SPIRASI Report determined that overall, the Applicant’s “physical and psychological symptoms and findings are highly consistent with his account of torture”.

7. Consequent upon an oral hearing held in July 2023, the IPAT on 27th September 2023 denied the Applicant’s appeal from the refusal of international protection, again, based on the finding that his claim lacked consistency, and it affirmed the decision of the IPO refusing to grant the Applicant international protection.

8. The Applicant made further representations and submissions to the Minister for leave to remain in the State pursuant to section 49(7) of the 2015 Act and in this context, where the IPAT had affirmed a recommendation as per section 39(3) of the 2015 Act, the Applicant, in October 2023, sought a review of the first instance refusal of permission to remain that had been made pursuant to section 49(4)(b) of the 2015 Act.

9. Notwithstanding those submissions, the Minister refused the Applicant’s application and notified him of that refusal by letter dated 9th October 2024. It is that decision which is the subject matter of this judicial review challenge.

Proceedings

10. These proceedings were issued on 5th November 2024. The Statement of Grounds is dated 5th November 2024 and is grounded on the Applicant’s Affidavit dated 1st November 2024, which also exhibits documentation relevant to the Applicant’s circumstances, including inter alia the first instance decision dated 20th March 2023 pursuant to section 49(4) of the 2015 Act that the Applicant should not be given permission to remain in the State (the decision the subject of the review), the initial IPO section 39(3) refusal dated 7th March 2023, the SPIRASI report dated 29th August 2023 and the IPAT report and decision dated 27th September 2023. An Affidavit was also sworn by the Applicant’s Solicitor Mary Trayers on 5th November 2024 setting out the position in relation to exhibits.

11. Leave to seek judicial review was granted on 6th December 2024 by order of the High Court (O’Higgins J).

12. A Statement of Opposition was filed and dated 16th May 2025 grounded on the Affidavit of Karl Oliver, Assistant Principal Officer, sworn on 19th May 2025.

13. On 19th May 2025, this case was selected by the High Court (Ms. Justice Siobhán Phelan) as a pathfinder (test) case with a general direction that other cases raising such grounds were to be adjourned generally to await the determination of this challenge.

14. A second Affidavit was sworn by the Applicant’s Solicitor Mary Trayers on 27th May 2025 exhibiting the Respondent’s letter dated 15th April 2025. A third Affidavit was sworn by Ms. Trayers on 5th June 2025 exhibiting Country of Origin Information and a proposed amended Statement of Grounds (and it was confirmed at the beginning of the hearing before me that this proposed amendment was not being pursued by the Applicant).

15. In summary, the central contention of the Applicant is that his case is similar to that decided by the High Court (Simons J.) in A (Albania) v Minister for Justice & Equality [2023] IEHC 692, where the court quashed the ‘section 49’ decision made in that case.

The statutory provisions

16. Section 49 of the 2015 Act deals with permission or leave to remain and provides as follows:

“49(1) Where a recommendation referred to in section 39(3)(c) is made in respect of an application, the Minister shall consider, in accordance with this section, whether to give the applicant concerned a permission under this section to remain in the State (in this section referred to as a “permission”).

(2) For the purposes of his or her consideration under this section, the Minister shall have regard to—

(a) the information (if any) submitted by the applicant under subsection (6), and (b) any relevant information presented by the applicant in his or her application for international protection, including any statement made by him or her at his or her preliminary interview and personal interview.

(3) In deciding whether to give an applicant a permission, the Minister shall have regard to the applicant’s family and personal circumstances and his or her right to respect for his or her private and family life, having due regard to—

(a) the nature of the applicant’s connection with the State, if any,

(b) humanitarian considerations,

(c) the character and conduct of the applicant both within and (where relevant and ascertainable) outside the State (including any criminal convictions),

(d) considerations of national security and public order, and

(e) any other considerations of the common good.

(4) The Minister, having considered the matters referred to in subsections (2)

and (3), shall decide to—

(a) give the applicant a permission, or (b) refuse to give the applicant a permission.

(5) The Minister shall notify, in writing, the applicant concerned and his or her legal representative (if known) of the Minister’s decision under subsection (4), which notification shall be accompanied by a statement of the reasons for the decision.

(6) An applicant—

(a) may, at any stage prior to the preparation of the report under section 39(1) in relation to his or her application, submit information that would, in the event that subsection (1) applies to the applicant, be relevant to the Minister’s decision under this section, and

(b) shall, where he or she becomes aware, during the period between the making of his or her application and the preparation of such report, of a change of circumstances that would be relevant to the Minister’s decision under this section inform the Minister, forthwith, of that change.

(7) Where the Tribunal affirms a recommendation referred to in section 39(3)(c) made in respect of an application, the Minister shall, upon receiving information from an applicant in accordance with subsection (9), review a

decision made by him or her under subsection (4)(b) in respect of the applicant concerned.

(8) Subsections (2) to (5) shall apply to a review under subsection (7), subject to the modification that the reference in subsection (2)(a) to information submitted by the applicant under subsection (6) shall be deemed to include information submitted under subsection (9) and any other necessary modifications.

(9) An applicant, for the purposes of a review under subsection (7), and within such period following receipt by him or her under section 46(6) of the

decision of the Tribunal as may be prescribed under subsection (10) —

(a) may submit information that would have been relevant to the making of a

decision under paragraph (b) of subsection (4) had it been in the possession of the Minister when making such decision, and

(b) shall, where he or she becomes aware of a change of circumstances that would have been relevant to the making of a decision under subsection (4)(b) had it been in the possession of the Minister when making such decision, inform the Minister, forthwith, of that change.

(10) The Minister may prescribe a period for the purposes of subsection (9) and, in doing so, shall have regard to the need for fairness and efficiency in the conduct of a review under this section.

(11) (a) A permission given under this section shall be deemed to be a permission given under section 4 of the Act of 2004 and that Act shall apply accordingly.

(b) A reference in any enactment to a permission under section 4 of the Act of 2004 shall be deemed to include a reference to a permission given under this section.”

17. There is, therefore, a statutory requirement pursuant to section 49(2) of the 2015 Act for the Minister to have regard to the information. Further, there is a statutory requirement pursuant to section 49(3) of the 2015 Act that in deciding whether to grant an applicant permission to remain, the Minister must have regard to the applicant’s family and personal circumstances and his or her right to respect for his or her private and family life, having due regard to (a) the nature of the applicant’s connection with the State, if any, (b) humanitarian considerations, (c) the character and conduct of the applicant both within and (where relevant and ascertainable) outside the State (including any criminal convictions), (d) considerations of national security and public order, and (e) any other considerations of the common good.

18. It was observed by senior counsel on behalf of both the Applicant and the Respondent that section 49 of the 2015 Act is similar in format to section 3 of the Immigration Act 1999, as amended (“the 1999 Act”).1 They drew particular attention to section 3(6) of the 1999 Act as being broadly similar to section 49(3) of the 2015 Act.

19. Section 49(5) of the 2015 Act provides a requirement for reasons in that any ministerial

decision is to be accompanied by a statement of the reasons for the decision. In this case, the Applicant contends that the reasons which were furnished were not adequate and that the Minister failed to engage with his case.

Section 3(6) of the 1999 Act provides that in determining whether to make a deportation order in relation to a person, the Minister shall have regard to - (a) the age of the person; (b) the duration of residence in the State of the person; (c) the family and domestic circumstances of the person; (d) the nature of the person’s connection with the State, if any; (e) the employment (including self-employment) record of the person; (f) the employment (including self-employment) prospects of the person; (g) the character and conduct of the person both within and (where relevant and ascertainable) outside the State (including any criminal convictions); (h) humanitarian considerations; (i) any representations duly made by or on behalf of the person; (j) the common good; and (k) considerations of national security and public policy - so far as they appear or are known to the Minister.

20. In accordance with Section 49(7) of the 2015 Act where the IPAT affirms a recommendation referred to in Section 39(3)(c) of the 2015 Act, a review of the

decision made under Section 49(4)(b) of the 2015 Act is required where new information has been submitted to the Minister or the Minister has become aware of a change in circumstances that would be relevant to the making of a decision under Section 49(4)(b) of the 2015 Act.

THE DECISION: THE REVIEW UNDER SECTION 49(7) OF THE 2015 ACT

Letter dated 9th October 2024

21. Under cover of a letter dated 9th October 2024 from the Ministerial Decisions Unit of the Immigration Service Delivery of the Department of Justice, the Applicant’s application for international protection and ancillary applications were addressed in an enclosed letter, also dated 9th October 2024, which set out the following matters.

22. First, the Applicant was informed that the IPAT had affirmed the recommendation of the IPO that he should not be granted either a refugee declaration or a subsidiary protection declaration and that pursuant to section 47(5) of the 2015 Act, the Minister was refusing to give the Applicant a refugee or subsidiary protection status.

23. Second, the letter stated that the Applicant had been previously informed by the IPO that the Minister had decided to refuse the Applicant permission to remain in the State under section 49 of the 2015 Act and that this decision had been reviewed as the Applicant had submitted further information pursuant to section 49(7) of the 2015 Act.

The letter, in consequence, informed the Applicant that the Minister had decided, pursuant to section 49(4)(b) of the 2015 Act, to refuse the Applicant permission to remain in the State and enclosed a statement of the reasons. The letter enclosed the report of the ‘Review under section 49(7) of the 2015 Act’ (17 pages). It is this decision which is the subject of the Applicant’s challenge in these proceedings.

24. Third, the letter referred to the ‘current status’ of the Applicant, stating that he had now ceased to be an applicant under the 2015 Act, and, as such, the permission that he had been given to remain in the State, while his application was being examined, had expired.

25. Fourth, the Applicant was informed that if held a Temporary Residence Certificate (TRC), this was no longer valid and he was requested to return it and fifth, the Applicant was informed about the status of his permission to access the labour market.

26. Sixth, the letter contained a notice under section 48(3) of the 2015 Act and details of the option for the Applicant to voluntarily return to his country of origin.

The Report of the Review under section 49(7) of the IPA 2015

27. The letter dated 9th October 2024 enclosed the Report of the review carried out under section 49(7) of the 2015 Act.

28. As observed by the High Court (Simons J.) in A (Albania) v Minister for Justice [2023] IEHC 692 at p. 13 of his judgment, “in accordance with the Carltona principle, the

decision on an application to review an earlier decision to refuse permission to remain is made by an official within the International Protection Office as the alter ego of the designated decision-maker, i.e. the Minister for Justice (ASA v Minister for Justice and Equality [2022] IESC 49). The practice is for the official to prepare a report which records both the consideration of the application and the formal decision.”

29. In the Applicant’s case, his review was carried out by a caseworker in the IPO on 8th October 2024. On foot of that review, a different caseworker in the IPO, on the same date, made a decision pursuant to section 49(4) of the 2015 Act wherein she stated “having considered the overall circumstances of this case and the Applicant’s right to respect for his private and family life, I affirm the decision [dated] 20/03/2023 that the Applicant, [Name set out] should not be given permission to remain in this State under Section 49 of the 2015 Act.”

30. The structure of the report submitted with the letter dated 9th October 2024 carried out by the two Case Workers on 8th October 2024 was as follows:

• (1) Background; (2) Section 49(7) and Section 49(9) of the 2015 Act; (3) Section 49(3) of the 2015 Act; (4) Section 49(3)(a) – Nature of the Applicant’s connection with the State; (5) Section 49(3)(b) – Humanitarian Considerations which included ‘General humanitarian considerations’ and ‘Medical issues’, (6) Section 49(3)(c) – Character and conduct of the applicant both within and (where relevant and ascertainable) outside the State (including any criminal convictions); (7) Section 49(3)(d) – Considerations of National Security and Public Order; (8) Section 49(3)(e) – the common good; (9) Article 8 (ECHR) – Private Life; Proportionality assessment; Conclusion; (10) Article 8 (ECHR) - Family Life; (11) Section 49(3) findings;

• Under the heading ‘Conclusions/Summary of Findings’, the Report made the following ‘Recommendation’: “The applicant’s case was considered under [section 49 of the 2015 Act], on review. Consideration was also given to private and family life rights under Article 8 of the European Convention on Human Rights (ECHR). Having considered the applicant and the particular circumstances of this case and the applicant’s right to respect for his private and family life, I affirm the decision dated 20/03/2023 that the applicant, [Applicant’s name] should not be given permission to remain in the State under section 49 of the 2015 Act.” This was signed by the Case Worker of the IPO and dated 8th October 2024;

• At paragraph (12), the Decision under section 49(4) of the 2015 Act stated that: “Having considered the overall circumstances of this case and the applicant’s right to respect for his private and family life, I affirm the decision 20/03/2023 that the applicant [Applicant’s name] should not be given permission to remain in the State under section 49 of the 2015 Act” and this was signed by a different Case Worker of the IPO and also dated 8th October 2024.

31. Further, the following documentation was submitted by or on behalf of the Applicant in support of his application for review and these matters are set out on page 2 of the section 49(7) review report and were also exhibited by the Applicant:

• Representations from the Applicant’s legal representatives, Trayers & Co. Solicitors, dated 3rd October 2023 and 16th October 2023 (pages 180 – 181 of the Book of Pleadings (“the Book”));

• Section 49 Review Form dated 2nd October 2023 (page 244 of the Book);

• Copy of a letter from a Care Home company dated 2nd October 2023 (page 246 of the Book);

• Copy of Certificate of Completion from the SCOOP Foundation, which was not dated (at page 247 of the Book);

• Copies of various payslips (pages 248-249 of the Book);

• Copy of a letter from an Evangelical Church dated 1st October 2023 (page 250 of the Book);

• Copy of a screenshot of an undated email from a Lyons Club (page 252 of the Book);

• Copy of a letter from the Applicant’s employer dated 28th September 2023 (page

254 of the Book);

• Copy of biometric page from the Applicant’s passport (page 255 of the Book);

• Copy of the Applicant’s national registration card from the Republic of Zimbabwe (page 256 of the Book);

• Copy of a letter from a Volunteer Centre dated 3rd October 2023 (pages 182-184 of the Book);

• Copy of a recommendation letter dated 12th October 2023 (page 183 of the Book).

32. The second page of the review report also points out that the Applicant submitted the following information during the course of his appeal to the IPAT and that these documents had been considered as part of the review assessment:

• A copy of a Zimbabwean passport (page 69 of the Book);

• A copy of a Zimbabwean registration card (page 70 of the Book);

• A copy of photographs (page 61 of the Book);

• A copy of various payslips (inter alia page 269 of the Book);

• A copy of a medical document from a District Hospital (page 273 of the Book);

• An FCE Scan (pages 274 – 288 of the Book);

• A copy of a letter confirming referral and letter of appointment (pages 289 of the Book);

• A copy of the SPIRASI Report dated 29th August 2023 (page 134 of the Book);

• A copy of written submissions (page 131 of the Book).

33. The penultimate bullet-point referred to the SPIRASI Report dated 29th August 2023. This was a medico-legal assessment conducted by an examining physician at SPIRASI.

34. Section G of this Report addressed “Interpretation of Findings and Opinion”.

35. In terms of “Physical Finding/s”, it found that the Applicant2 had a total of thirteen skin lesions which the Applicant attributed to various causes, including, for example, that three of the scars were sustained during reported assaults by members of Zanu PF in 2008.

The reference to “client” is a reference to the Applicant.

36. The SPIRASI report states that “All of the above scars could have been formed as the client describes. However, the scars are non-specific, on more exposed parts of the body prone to accidental injury, and it is not possible to exclude other causes, such as scars forming after accidental injury”.

37. Later, at paragraph 1.3, the report recites that the Applicant attributes an approximately 15mm curved area of scarring over his index finger (second digit) on his right hand to injuries he states that he sustained during an alleged assault by members of the “Dudulas” group in 2022 and, after referring to paragraph 433 of the Istanbul Protocol, the report states that “The appearance of the fingers in photographs eight and nine could have been formed as the client describes i.e. being cut or stabbed with a knife. However, it is not possible to exclude other causes, such as workplace accident during the client’s carpentry work. As such, the client’s attribution of being cut or stabbed to these findings is consistent, as per the Istanbul Protocol, paragraph 418.”

38. At paragraph 1.4 of the report, reference is made to the Applicant sustaining five examples of skin lesions caused by accidental injury.

39. At paragraph 1.5 of the report, reference is made to the Applicant being uncertain as to how an approximately 45mm area of scarring over his left chest wall occurred and an approximately 30mm wide area of circular scarring over his left lower leg; at paragraph 1.6, the report refers to a skin lesion caused by a skin boil that had burst in the past.

40. The report refers at paragraph 1.7 to backpain as follows:

“(1.7) The client also describes back pain, occurring daily to every second day at present. On examination, he appeared in discomfort when bending fully forwards or backward or during a special test of the sacro-iliac joint (i.e. the joint where the backbone and hip meet). As per the Istanbul Protocol, paragraph 507: “Pain, headaches or other physical complaints, with or without objective physical findings, are common problems among torture survivors.” Furthermore, the back pain the client reports may be a somatic symptom, which is physical manifestation of psychological distress. As per the Istanbul Protocol, paragraph 507: “Typical somatic complaints include back pain, musculoskeletal pain, and headaches.” However, back pain is a common finding in the general population, and there are a wide variety of other causes, such as poor posture or work or sporting injuries. As such, the client’s attribution of back pain to his reported assaults is consistent, as per the Istanbul Protocol, paragraph 418”.

41. The “Conclusion” at paragraph (4) of the report provides the following summary:

“(4) Conclusion:

(4.1) The client states that he is [a] 40-year-old man, originally from Zimbabwe, who states he was subject to an attack by members of Zanu PF in 2008 for failure to comply with an order from Zanu PF. He also states he was subject to an attack in South Africa by members of a group he terms “Dudulas”, due to the fact he was an immigrant in South Africa.

(4.2) In summary, with respect to the client’s physical findings as per the Istanbul Protocol, paragraph 418

• The client’s attribution of blunt force trauma during an assault by members of Zanu PF to scarring over his left buttock, left upper leg, and left lower leg is consistent

• The client’s attribution of being cut or stabbed with a knife during an assault by members of “Dudulas” to scarring over his index and little finger on his right hand is consistent

• The client’s attribution of back pain to both these assaults is consistent (4.3) In summary, in respect to the client’s psychological findings as per the Istanbul Protocol, paragraph 540

• The client’s findings of post-traumatic stress disorder and some features of complex-post traumatic stress disorder would be highly consistentwith the client’s account of being assaulted.

(4.4) As per the Istanbul Protocol, paragraph 546: “Ultimately, it is the overall evaluation of all clinical findings and not the consistency of one finding in particular that is important in assessing allegations of torture or ill-treatment.” And as per the Istanbul Protocol, paragraph 381”

“It is important to note that the highest level of consistency of an individual finding often determines the level of consistency for all of the clinical evidence.” As such, overall, the client’s physical and psychological symptoms and findings are highly consistent with his account of torture”.

42. Whilst the SPIRASI report dated 29th August 2023 finds that the Applicant’s injuries are consistent with his account, it also discusses the alternative proposition that they could have been caused by other factors and both of these views were reflected in the IPAT report. At paragraph (4.2) of her report dated 27th September 2023, for example, the IPAT accepted that the medical findings contained in the SPIRASI report demonstrated that the Applicant suffered injuries and psychological impacts as a result, but in addressing the SPIRASI report at paragraph (4.9) of her report, the IPAT stated that “[w]hat the Spirasi report does not say and cannot say is who carried out the trauma and in what circumstances. The Tribunal must thus weigh the medical evidence in light of the other evidence before it. In doing so the Tribunal has regard to the negative credibility issues outlined above. The Tribunal has weighed and evaluated all the issues set out above and has considered the core elements of the Appellant’s claim. The Tribunal does not accept that the Appellant has provided credible evidence in relation to his dealings with the Zanu-PF. In coming to this finding the Tribunal has considered the findings in the Spirasi report along with the other documentation submitted. Given the credibility issues as outlined above and the fact that it cannot be ruled out that the Appellant was injured in circumstances other than that which is claimed, the Tribunal finds that the Appellant’s claim to a well-founded fear of persecution is not credible, on the balance of probabilities, for the reasons given. There are no facts or circumstances in which the benefit of the doubt can apply taking into account relevant case law and the UNCHR handbook.”

43. In terms of the ministerial section 49 considerations, the fact is that the IPAT’s findings in relation to the question of torture have not been challenged and on behalf of the Minister it was submitted that to consider the question of torture would be inconsistent with the unchallenged findings of IPAT. Therefore, it was submitted that the other way which the SPIRASI report may be relevant was as evidence of certain medical conditions and these, it was submitted on behalf of the Minister, were addressed in the

decision which is now sought to be impugned by the Applicant.

44. As stated earlier in this judgment, it was argued on behalf of the Applicant that his case was ‘on all fours’ with the judgment in A (Albania) v Minister for Justice & Equality [2023] IEHC 692 where the court quashed the ‘section 49’ decision made in that case. In his written submissions, at paragraph 15, the Applicant submitted that the following general propositions could be extracted from the judgment of the High Court (Simons J) in A (Albania) v Minister for Justice and Equality [2023] IEHC 692:

“(a) The section 49 inquiry that the Minister must carry out requires an assessment of the relevant considerations, to include humanitarian considerations, which said assessment must be separate and distinct from any consideration afforded under Article 8 ECHR (see paragraphs 20-26 of A(Albania));

(b) Section 49 of the 2015 Act encompasses a wider assessment that is over and above that which is required for the purpose of the ECHR (paragraph 39 of A (Albania));

(c) The grant of a section 49 permission does not[3] require the existence of any “exceptional circumstances” (see paragraph 39 of A (Albania));

(d) The threshold for a successful application for permission to remain under section 49 is lower as a matter of domestic law and is not necessary to demonstrate a breach of the individual applicant’s ECHR rights (paragraph

39 of A (Albania)); and

(e) The decision of the Minister under section 49 must be properly reasoned. It is not sufficient for the decision-maker simply to summarise the submissions made on behalf of an individual applicant, without any substantive engagement with or assessment of same (see paragraph 26 of A (Albania)).”

45. On behalf of the Applicant it was submitted that the decision of the High Court in A (Albania) v Minister for Justice and Equality was authority for the proposition that the Minister must determine the application made under section 49 of the 2015 Act in a properly reasoned fashion and that the section 49 consideration must not be ‘rolled up’ with the assessment of any ECHR derived rights and there must be a separate and distinct section 49 consideration.

46. Whilst this is a helpful adumbration of the relevant principles, it remains contested between the parties as to whether or not the facts of the Applicant’s case are similar to, Emphasis in the Applicant’s Legal Submissions. or can be distinguished from, those in A (Albania) v Minister for Justice and Equality. It is that question which I now address.

DISCUSSION & DECISION

Application under section 49(7) of the 2015 Act

47. The Applicant’s application for a review under section 49 of the 2015 Act was made on his behalf by his solicitors on 3rd October 2023 and was stated to be “without prejudice to his right to apply for judicial review of the Tribunal decision.” The e-mail from his solicitors attached the supporting documentation and submitted that the Applicant had “obtained private life rights since his arrival into Ireland and these rights ought to be strongly considered in this application process.”

48. The documents which were submitted on the Applicant’s behalf were set out earlier in this judgment.

49. This documentation included the completed pro forma ‘Section 49 Review Form’ (2 pages), character references from, the Duty Manager at an Accommodation Centre dated 2nd October, 2023, an Elder of an Evangelical Church dated 1st October 2023, the HR Manager at the Applicant’s place of work dated 28th September 2023, a character reference dated 12th October 2023, a certificate of completion by the Applicant of a mindfulness and meditation four-week course, a number of copy payslips, an acknowledgement of the Applicant registering with a Volunteer Centre for a Regatta Event and an acknowledgement to various persons, including the Applicant, who volunteered as marshals for an awareness-raising walk for childhood cancer, a copy of his passport, a copy of his driving licence, photocopies of pictures from the SPIRASI report and the medical scan which is referred to in the decision.

50. Together, the documentation submitted to the decision-maker shows the Applicant’s employment history since his arrival in the State, a level of engagement by the Applicant with the local community and church and participation with at least two voluntary organisations. These are reflective of the normal activities of someone who has been living, albeit precariously, in the State for over two years at the time of his application for a section 49 review. A question which arises, therefore, is whether the Applicant’s circumstances constituted “something more” which the Minister failed to properly consider in the exercise of his discretion when carrying out a review pursuant to section 49 of the 2015 Act.

51. For the following reasons, I do not consider that the manner in which the Minister carried out this review was unlawful such that the Applicant would be entitled to the reliefs sought as per his Statement of Grounds dated 5th November 2024. I do not consider, for example, that the decision which is sought to be impugned in the Applicant’s case suffered from the same frailties identified in the decisions of the Court of Appeal in HK (Western Sahara) v The Minister for Justice & Equality [2022] IECA

141 or the High Court in A (Albania) v Minister for Justice and Equality.

52. In considering these matters, both parties characterised a principal element of the Applicant’s legal proceedings as including a ‘reasons’ challenge.

53. Section 49(5) of the 2015 Act, for example, provides that the Minister is obliged to notify, in writing, the applicant concerned and his or her legal representative (if known) of his or her decision under section 49(4) of the 2015 Act, and this notification is required to be accompanied by a statement of the reasons for the decision.

54. Accordingly, a central argument made on behalf of the Applicant refers to what is asserted to be a lack of engagement by and on behalf of the Minister when addressing and determining, for example, the question of humanitarian considerations. It is submitted, for example, that the Minister simply summarised the Applicant’s submissions without engagement.

55. The reference made on behalf of the Applicant to sub-Article 8 and sub-Article 3 (i.e., when a rights issue is involved, such as Article 8 ECHR ‘rights’ or Article 3 ECHR ‘rights’) does not reflect the fact that the ECHR assessment which was carried out, was distinct and different from the other aspects of the assessment.

A general residual discretionary jurisdiction

56. Further, the gravamen of a section 49(3)(b) humanitarian assessment invokes a general residual discretionary jurisdiction where, for example, it may be the case there are no ‘rights’ involved, or, alternatively where, earlier in the decision-making process, those rights had been determined in a way which was not in the Applicant’s favour.

57. This is made clear in the decision of the Supreme Court in DE (an infant) v Minister for Justice [2018] 3 I.R. 326 and by the Court of Appeal (Murray, Donnelly and Ní Raifeartaigh JJ.) in HK (Western Sahara) v The Minister for Justice & Equality [2022] IECA 141.

58. In HK (Western Sahara) v The Minister for Justice & Equality [2022] IECA 141, Donnelly J. refers, at paragraph 104 of her judgment, to the requirement to give reasons in the context of the statutory jurisdiction that is exercised in a section 49 review, pointing out the importance of the actual reasons offered in any given case.

59. Donnelly J., for example, states that it is “an inescapable corollary of the obligation to give reasons for an administrative decision that the question of whether the decisionmaker has complied with his or her statutory remit must be determined by reference to the reasons that are actually offered in the determination.”

60. Immediately after stating this, Donnelly J. refers to the approach which should be followed by a decision-maker (also at paragraph 104 of her judgment), stating that the manner in which the decision-maker had framed his conclusions could “only be interpreted as meaning that the conclusion in relation to humanitarian considerations was directed, and directed only, to the matters referred to in the preceding paragraphs; that is in the assessment of how they affected Article 3 and Article 8 ECHR rights[4] but not to a separate consideration of purely humanitarian concerns which did not reach the level of rights.[5] Overall, the Review gives no indication that the reviewer considered and applied the legal requirement that humanitarian considerations must go further than considerations of whether Article 8 ECHR rights in particular had been Emphasis in the judgment of Donnelly J. Emphasis in the judgment of Donnelly J. violated. At no point were matters concerning the appellant’s private and family interests expressly treated as possible considerations of a humanitarian nature. That means there was no apparent consideration of his mental health, which, although not reaching the standard of a breach of his rights if deported, could amount to a humanitarian ground on which he could or ought to be granted PTR”.

61. Unlike the situation in HK (Western Sahara) v The Minister for Justice & Equality [2022] IECA 141 there is, for example, an express statement in the review at page 7 of the report dated 8th October 2024 that “Notwithstanding the above conclusions in respect of Article 3 and/or Article 8 ECHR, it is acknowledged that humanitarian considerations may arise that do not meet the threshold of breaches under Articles 3 and/or 8 ECHR” and these considerations were then addressed in the review.

62. The decision of the Supreme Court in DE (an infant) v Minister for Justice [2018] 3 I.R

326 concerned an application pursuant to section 3(11) of the Immigration Act 1999 to revoke a deportation order made in the context of a child who suffered from sickle cell disease and who had unsuccessfully applied for asylum. Ultimately, the applicants’ appeal was refused by the Supreme Court (after an earlier determination had allowed an appeal to it and in circumstances where the High Court had refused to grant leave to apply for judicial review and had also refused to certify an appeal to the Court of Appeal).

63. Contextually, following the initial refusal of leave to apply for judicial review by the High Court, the European Court of Human Rights (“the Strasbourg Court”) had delivered its judgment in Paposhvili v Belgium (App. No. 41738/10) (13th December 2016), [2017] Imm AR 867, which concerned the circumstances in which the deportation of a person suffering from a life-threatening illness who required particular medical treatment would be precluded by Article 3 of the ECHR. The Paposhvili v Belgium decision was discussed by the UK Supreme Court (in the judgment of Lord Wilson) in AM (Zimbabwe) (Appellant) v Secretary of State for the Home Department (Respondent) [2020] UKSC 17.

64. In that case, the Supreme Court had been asked to consider whether the return of AM to Zimbabwe would violate his rights under Article 3 of the ECHR not to be subjected to inhuman treatment by reason of his medical condition, in light of the decision of the Strasbourg Court in Paposhvili v Belgium [2017] Imm AR 867 and on the facts of that case, the court allowed the appeal and remitted the appellant’s claim under Article 3 ECHR to be heard by the Upper Tribunal on up-to-date evidence properly directed to the substantive and procedural requirements set out by the Strasbourg Court in Paposhvili v Belgium. It summarised the decision in Paposhvili v Belgium inter alia as follows.

65. Mr. Paposhvili was a citizen of Georgia who had lived in Belgium for 18 years with his family and his application for asylum was rejected. He had been convicted of various criminal offences, including robbery and, ultimately, involvement in an extortion racket for which he was sentenced to imprisonment for three years. Belgium sought to deport him to Georgia and he challenged this by reference to his rights under Article 8 of the ECHR and Article 3 of the ECHR in light of his grave ill-health. The Fifth Section of the Strasbourg Court held that his deportation would not violate his ECHR rights and the Grand Chamber accepted the referral of his application. After the hearing but prior to the delivery of its judgment, Mr. Paposhvili had died. In giving its judgment in December 2016, the Grand Chamber of the Strasbourg Court held that, if carried out at the stage proposed by Belgium, Mr. Paposhvili’s deportation to Georgia, without the Belgian authorities having assessed the risk faced by him and the impact of his removal in the light of the information concerning his state of health and the existence of appropriate treatment in Georgia, would have violated his rights under Article 3 and Article 8 of the ECHR.

66. In DE (an infant) v Minister for Justice [2018] 3 I.R. 326, Clarke CJ. considered, for example, the similar residual discretion involved in the ministerial consideration of the revocation of a deportation order (which is similar to that exercised in a section 49 review).

67. At paragraphs (32) to (35) of his judgment, Clarke CJ. noted, for example, that in such a case it was unlikely that legal rights or entitlements would arise as questions of, for example, refugee status or subsidiary protection would have already been decided in the process and that additionally, the requirements of section 3(1) of the ECHR Act 2003, may apply in the context of a deportation and that any ministerial decision which involved “a determination in respect of legal rights and entitlements” would have been subject to a judicial review challenge applicable to any decision affecting rights and entitlements.

68. In that context, Clarke CJ. observed at paragraph (33) of his judgment that “there is a residual issue for the Minister to consider on an application to revoke a deportation order which is not concerned with whether there is a legal right to remain in the State but rather with whether the Minister should exercise the more general humanitarian jurisdiction which is conferred on the Minister” and at paragraph (35) stated as follows:

“it is inevitable that somewhat different considerations must apply in practice where a very general question such as the appropriateness or otherwise of a Minister granting a humanitarian leave to remain arises. Such an issue is not, strictly speaking, concerned with legal rights and entitlements but rather subject only to the entitlement of a relevant person to make representations to the Minister as to the basis on which it is said that the Minister might be persuaded to grant humanitarian leave and to the entitlement to have the Minister consider those representations. But the criteria, under the legislation, to be applied in respect of such an application are very much at the open-ended end of the spectrum. In such an application, the Minister is not concerned with whether a legal entitlement exists, but rather whether general humanitarian considerations ought to lead to the person concerned not being deported. In passing, it should be noted, of course, that it may be that a party also puts forward, in the course of the same representations, an argument which does touch on a legal entitlement. For example, the issue which arises in this case and which concerns the contention that it would be in breach of DE’s ECHR rights to deport him having regard to the health issues raised, does give rise to a contention that a legal entitlement exists. Different considerations apply to that question. However, on the assumption that no legal entitlement arises, then the decision of the Minister can, in my view, be properly described as the one involving the exercise of a very broad discretion”.

69. Accepting, therefore, the general proposition that questions concerning rights per se can arise and be addressed in a section 49 application, insofar as section 49(3)(b) of the 2015 Act states that in deciding whether to give an applicant a permission, the Minister shall have regard to the applicant’s family and personal circumstances and his or her right to respect for his or her private and family life, having due regard to inter alia humanitarian considerations, in this case, however – and similar to the situation in DE (an infant) v Minister for Justice – the Applicant, has had unsuccessful asylum and subsidiary protection applications which addressed the question of any putative rights and entitlements which arose in those specific contexts and which have not been challenged by way of judicial review.

70. Accordingly, the entitlement of the Applicant at this juncture, insofar as his claim pursuant to section 49(3)(b) of the 2015 Act is concerned (i.e., humanitarian considerations), is that of making representations to the Minister as to the basis on which it is said that the Minister might be persuaded to grant humanitarian leave and to the entitlement to have the Minister consider those representations.

71. The Applicant’s case does not present a situation where the Minister has excluded consideration of any of the other matters under section 49(3) of the 2015 Act. They are addressed separately. The ‘rights-based’ matters in relation, for example, to private and family rights (and Article 8 of the ECHR) are addressed in the ‘report of the review’ but are separate to the ministerial assessment of humanitarian considerations, which were addressed separately and distinctly.

72. Section 49 of the 2015 Act, for example, prescribes a general humanitarian ministerial discretion which is broad-brush and raises questions of discretion and judgment. At paragraph (92) of his judgment in DE (an infant) v Minister for Justice [2018] 3 I.R. 326, O’Donnell J. (as he then was), under the sub-heading “Humanitarian considerations” in observing that there was a difference between what a decision-maker must do and may do, stated as follows:

“Humanitarian considerations are not limited to, or defined by, the necessarily high threshold for consideration of breaches of Article 3 which would require a Minister in a case such as this not to deport an individual. Situations which may not reach the high threshold posed by Article 3 may nevertheless properly be taken into account by a decision maker in considering the broad question of humanitarian leave to remain. In the present case, the Minister can decide to permit the applicant to remain in Ireland, even if the Minister considered that he was not obliged to do so because of the ECHR and the Constitution. Here the appellant has been more than nine years in this country, was born here, and has lived all his life here. Not only does he suffer from a serious medical condition, but he had the benefit of committed expert medical care since birth. The Minister is entitled, indeed required, to take all that information into account, including his medical condition, prognosis, history of treatment and likely future care, as well as the degree of integration in the community and other factors in deciding on the deportation, or on the revocation of the deportation order. Humanitarian considerations are not the sole preserve of the courts, national or supra-national. It may also be useful to recall that even after ECHR and constitutional considerations are exhausted, the exercise of discretion remains the subject of domestic law. After the issue of “must” has been determined, the question of “may” properly remains, and any decision in that regard may still be subject to searching review for conformity with domestic principles including the consideration of all relevant factors, and the exclusion of irrelevant considerations, as well as for rationality and proportionality”.

73. The exceptionality of the section 49 ministerial discretion in assessing whether to grant permission or leave to remain was recognised in MK (Albania) v Minister for Justice & Equality [2022] IESC 48, [2024] 2 I.R. 113, where a majority of the Supreme Court inter alia held that where residence was precarious, the State’s interest in maintaining an orderly immigration system prevailed, and justified the interference with private life that a refusal of leave to remain in the country (or deportation) necessarily involved, unless there was ‘something more’.

74. O’Donnell CJ. held it was sufficient, without something more, that the State’s interest in maintaining the integrity of the immigration system justified interference with private life when all that could be asserted was that a life had been lived in a country where that residence was, and was known to be, precarious.

75. The jurisprudence of the Strasbourg Court established that it will only be rarely, and in exceptional circumstances, that the State’s interest will not justify the interference with that private life.

76. In CI v Minister for Justice, Equality and Law Reform [2014] IEHC 447, the High Court (Mac Eochaidh J.) held, at paragraph (45) of his judgment, that as it was lawful for the State to regulate the presence of non-nationals on its territory and that immigration control did not per se offend rights protected by the ECHR, something other than the natural consequences of deportation involving, as it did, the cessation or termination of private life in the deporting state, would be required if the proportionality analysis was to yield a positive result for a claimant.

77. In referring to this judgment and that of the Strasbourg Court in Jeunesse v Netherlands

(2015) 60 EHRR 17, at paragraph 108, and Pormes v The Netherlands CE:ECHR:2020:0728JUD002540214, O’Donnell CJ., at paragraph (24) of his judgment in MK (Albania) v Minister for Justice & Equality agreed that “exceptionality is more of a description and not a legal test, but it is a formulation here which describes something that is important in the present context”.

78. In MK (Albania) v Minister for Justice & Equality [2022] IESC 48, [2024] 2 I.R. 113, O’Donnell CJ., at paragraphs (25) and (26) of his judgment described the balancing and the pre-designated weighting exercise involved as follows:

“(25) It must be remembered that it has been consistently stated that Article

8 does not give any right to choose the country in which you wish to live. The private life an individual establishes necessarily involves pursuing that life in circumstances most of which are not within the control of the individual. An individual may wish to live in a certain country or in a certain area, and may wish to become friends and associate with other individuals, but cannot compel that outcome. The choice and desires of an individual in this respect are themselves important and have a value as part of a person's development and therefore, their private life. However, it is now well established that their choices and desires, unless accompanied by something more, can never outweigh the State's interest in maintaining an orderly immigration system.[6]

(26) These weights and their relative relationship are, as it were, preloaded. Where on one side of the balance there is the State’s interest in maintaining an orderly immigration system, and on the other side there are the social ties established by the fact of residence. But where that residence is precarious, then the State's interest prevails, and will always justify the interference with private life that a refusal of leave to remain in the country, or indeed, deportation, necessarily involves, unless, adopting the language of Mac Eochaidh J, there is something more.[7] The case law establishes the type of thing which may be something more, and which may have the capacity to tip the balance. This may be because of circumstances relating to the health of the individual, whether physical or mental, or the impact upon the individual by reason of their sexual identity, or orientation, or perhaps because of the manner in which they came to the country and their awareness or lack of it of the precarious nature of their residence, or the depth, length and intensity of the relationships they have established, and the particular circumstances of the persons involved in the nature of those relationships. I would not like Emphasis added. Emphasis added. to try to set out a definitive list of such circumstances. It is sufficient that without something more, that the State interest in maintaining the integrity of the immigration system will justify interference with private life when all that can be asserted is that a life has been lived in a country where that residence is and is known to be precarious.”

79. The manner of the exceptionality of the ‘leave to remain’ jurisdiction and the predesignated weighting system was further described by O’Donnell CJ. at paragraph (28) of his judgment in MK (Albania) v Minister for Justice & Equality [2022] IESC 48, [2024] 2 I.R. 113 when he stated that it was “clear and unavoidable that there was nothing in the facts of [the] case which was capable of amounting to such exceptional circumstances” and that the question as to whether there were exceptional circumstances over and above the necessary interference with any private life which would be a consequence of a refusal of leave to remain had been addressed and answered, and observed as follows:

“The relative weights the ECHR assigns to the legitimate state interest in maintaining the integrity and effectiveness of its immigration system and the private life of a precarious resident are well established, and it will only be in exceptional circumstances, and where there is something more than the inevitable disruption of removal from a country in which a person has lived that it can be argued the Article 8 rights can prevail, or more precisely that interference with that private life will not be justified by the state interest involved”.

80. Sections 49(2) and 49(3) of the 2015 Act involve a consideration of rights and nonrights issues and the section 49(7) review addresses, for example, each of the subheadings in section 49(3) of the 2015 Act and the factors which are required to be considered by the Minister in the exercise of his or her discretion on a review based on the information submitted by a claimant with sufficient flexibility to allow the Minister, where applicable, to evaluate broader based issues such as humanitarian considerations in circumstances where a claimant may, for example, have been refused a ‘rights based’ refugee status or subsidiary protection.

81. The assessment carried out on behalf of the Minister in this case, in my view, satisfied the above jurisprudential principles which have described the manner in which the section 49 jurisdiction should be exercised and also met the twin requirements of Connelly v An Bord Pleanála [2018] IESC 31, [2021] 2 I.R. 752, [2018] 2 I.L.R.M. 453 in that the Applicant was able to engage and respond to the issues raised in the section 49(7) review by the decision-maker and had participated fully in that process. The facts of the Applicant’s case are, in my view, different and distinct to the facts and context of those cases where there was no engagement such as the decision of the High Court (Simons J.) in A (Albania) v Minister for Justice [2023] IEHC 692 where there was no engagement by the decision-maker and there was, rather, simply a summary of the arguments that were made and the statement of a conclusion and in HK (Western Sahara) v The Minister for Justice & Equality [2022] IECA 141 where the assessment was solely through the prism of the ECHR.

82. The decision in Connelly v An Bord Pleanála [2018] IESC 31, [2021] 2 I.R. 752, [2018]

2 I.L.R.M. 453, for example, emphasises that the underlying objective is the attainment of fairness in the process.

83. First, if the process is fair, open and transparent and the affected person has been enabled to engage and respond to issues raised by the decision-maker, there may be situations where the reasons for the decision are obvious and that effective judicial review is not precluded.

84. Second, a distinction can be made between the situation where a person has participated in a process and someone who has not. Thus, where someone has participated in a process and is closely involved, a decision-maker can, in some cases, point to information in documentation which would be obvious to that person, by dint of their participation, for the purposes of explaining a decision. The opposite scenario may, of course, be the case where a person had not been engaged in the process and was not so aware.

85. The question of participation is also linked to the related question of the identification of documents, material or information. Indeed, the decision in Connelly v An Bord Pleanála contemplates that where, for example, reasons may be found in materials outside of both the decision itself and materials expressly referred to in the decision, care needs to be taken to ensure that any person affected by the decision in question can readily determine what the reasons are, notwithstanding the fact that those reasons do not appear in the decision itself or in materials expressly referred to in the decision. The range of persons who are able to challenge a particular decision will vary from case to case as will the extent of their involvement in the process and the requirement that reasons be given for a decision must be adequate necessitates that, where the reasons are not included in the text of the decision itself, they must be capable of being readily determined by any person affected by the decision.

86. Generally, therefore, the ‘reasons’ jurisprudence explains that as an adjunct to the requirement of fair procedures, a recipient of a decision should be able to understand how their arguments were addressed by the decision-maker and to allow an applicant and their legal representatives to assess the validity and correctness of the process. I now set out why I consider that those requirements were satisfied in the Applicant’s case.

The manner of the engagement in the Applicant’s case

87. In terms, therefore, of the Applicant’s central argument, the section 49(7) review, in my view, does confirm that the Minister did engage with the Applicant’s application. The factual context involved in this application and the material relied upon by the Applicant has a correlation with the ministerial decision made and the reasons for that

decision and reflects the fact that the Applicant had been in the State for over two years.

88. Section 4 of the section 49(7) review addresses, for example, the nature of the Applicant’s connection with the State (as per section 49(3)(a) of the 2015 Act).

89. At pages 3 and 4 of the report, the facts are summarised in seven paragraphs which point out, for example, that on the basis that the Applicant arrived in the State on 30 th May 2022, he had been in the State for approximately 2 years and 4 months at the time of the making of the application for review. This also includes the Applicant’s access to the labour market and his (then) employment and includes the details of some of the representations and documents (listed earlier in this judgment) which refer to the Applicant attending church and his involvement with the voluntary sector. The report of the section 49(7) review then states that “Whilst the above indicates some level of connection to the State, these were formed during a time when the applicant’s status was precarious and their length of residency cannot be considered lengthy or exceptional”.

90. The section 49(7) review referenced the judgment in MK (Albania) to the effect that migrants are not entitled to a choice of their country of residence and that duration of stay or residence may only become a factor in exceptional cases of very lengthy residence, and stated as follows:

“While the applicant has been living in the State, albeit as an unsettled migrant, he has formed connections with their community through employment, volunteering. These connections were formed during a time when his status in the State was precarious. Furthermore, the applicant’s length of time in the State is 2 years and 4 months and cannot be considered a very lengthy residence or exceptional in nature. It is acknowledged that moving countries can often be a challenging and difficult situation for individuals, however, the European Court of Human Rights has consistently asserted that migrants are not entitled to choose their country of residence and there are no exceptional circumstances arising in the applicant’s case. In conclusion and based on submissions received from or on behalf of the applicant, it is decided that his connections to the State do not warrant a grant of permission to remain.”

91. This represents the type of judgment and assessment which is envisaged in a section 49(7) review in the context of the Applicant’s particular circumstances and in light of the information furnished by, and on behalf of, the Applicant to the decision-maker which includes an assessment that the Applicant’s status was precarious and was informed by his length of time in the State which was not particularly lengthy or exceptional.

92. Similarly, section 5 of the ‘section 49(7) review’ addresses humanitarian considerations (as per section 49(3)(b) of the 2015 Act) at pages 5 to 8 of the report and includes, for example, sub-headings “General humanitarian considerations” and “Medical issues” which overlap with each other.

93. Under the sub-heading ‘General humanitarian considerations’, the section 49(7) review refers to the Applicant’s employment and access to the labour market giving requisite periods, his involvement with Church and the voluntary sector. The report states that after his interview, the IPO, on the balance of probabilities and with the benefit of the doubt, found that Applicant’s nationality and personal circumstances were credible. On appeal, however, the IPAT accepted that the Applicant was a national of Zimbabwe and determined that the story recounted by the Applicant was not credible and found that there was no well-founded subjective fear and that the Applicant’s claim failed at that juncture.

94. Under the sub-heading ‘Medical issues’ (from pp. 5-8 of the report) it is stated that a medical matter was highlighted in the Applicant’s previous Section 49(3) review where it was found not to breach either Article 3 or Article 8 ECHR. Reference is then made to the SPIRASI medico-legal report (referred to earlier in this judgment) which had been submitted by the Applicant’s legal representative, and which medico-legal report stated that some features of PSD were consistent with the Applicant’s account of being assaulted, that the physical and psychological symptoms were consistent with the Applicant’s account of torture and that the Applicant had been referred for counselling with SPIRASI. The review refers to the IPAT’s consideration of the SPIRASI medicolegal report and (as referred to earlier in this judgment) states that the IPAT “noted that the SPIRASI report does not say and cannot say … who carried out the trauma and in what circumstances” and that the IPAT “found that given the credibility issues and the fact that it cannot be ruled out that the applicant was injured in circumstances other than claimed, the [IPAT] found that the applicant’s claim to a well-founded fear of persecution is not credible on the balance of probabilities”.

95. Reference is then made to the medical findings in the FCE (Formetric Clinical Evaluation) Scan which had been submitted to the IPAT by the Applicant’s legal representatives and the proposed treatment and noted that the IPAT “found that the information provided in this report [does] not have the effect of overriding the previous negativity credibility findings”.

96. The review stated that “No further submissions or medical evidence which have not been previously assessed have been submitted in support of the applicant’s permission to remain review application in relation to medical issues.”

97. The review then refers to an extract of the judgment of the Supreme Court in DE (an infant) v Minister for Justice [2018] IESC 16, [2018] 3 I.R. 326, where, at paragraph (8.10), Clarke C.J. had observed that “it is important to identify the sequence of events which the ECtHR suggest requires to be followed in order that the question of whether deportation might give rise to a breach of Article 3 rights can properly be assessed. The first obligation is on the relevant applicant to adduce evidence capable of demonstrating that there are substantial grounds for believing that, in substance, there was a real risk that they would be “exposed to a serious, rapid and irreversible decline in their state of health resulting in intense suffering or a significant reduction in life expectancy”. It is only when that evidence (sufficient to establish a real risk) is presented that the obligation shifts to the authorities to dispel any doubts thereby raised. It is also clear that the appropriate benchmark is not the level of care existing in the returning State.”

98. The extract quoted was from that part of Clarke CJ.’s judgment in DE (an infant) v Minister for Justice which was discussing the judgment of the Strasbourg Court in Paposhvili.

99. In referring to these matters, the report of the section 49 review makes clear that they are being assessed through the lens of humanitarian considerations. For example, after the referring to the above quoted extract in DE (an infant) v Minister for Justice, the report states the following (at pages 7-8):

“However, in this particular case, the medical evidence available does not support the contention that there are substantial grounds for believing that there is a real risk that, if returned to his country, the applicant would be exposed to a serious, rapid and irreversible decline in their state of health resulting in intense suffering or a significant reduction in life expectancy.

Having considered all the information and [representations] [sic.] on file, the applicant’s medical condition does not reach the threshold of a violation of Article 3 ECHR and therefore no further consideration of Article 3 ECHR is required.

The applicant submitted representations in relation to their medical matters in the State, however, they have not submitted any evidence on how the impact of returning to Zimbabwe would affect their mental or physical health. Therefore, Article 8 ECHR has not been engaged and there is no interference with respect to his private life on the basis of his medical grounds.

Although the applicant’s medical history does not reach the level of a breach of his rights under Article 3 of the ECHR, it is nonetheless a humanitarian consideration and has been considered in light of this.

The applicant’s international protection claim was refused by the IPO and affirmed by the IPAT as he was determined to be a person not in need of international protection.

The humanitarian considerations of these submissions are noted here.

Notwithstanding the above conclusions in respect of Article 3 and/or Article

8 ECHR, it is acknowledged that humanitarian considerations may arise that do not meet the threshold of breaches under Articles 3 and/or 8 ECHR. Against this background, general humanitarian considerations have been taken into account for this decision. These are separate from Articles 3 and 8 ECHR on whether the Applicant should be given a permission to remain on the basis of humanitarian considerations, in particular due to his family and personal circumstances, and any medical conditions. While the applicant is residing in the State and has made connections in the community, it can be noted that their status in the country has always been precarious. However, while the applicant has made submissions with regard to humanitarian considerations, he has not demonstrated how returning to Zimbabwe would result in a decline of his mental or physical health, or that they would not have access to the same services they are currently availing of in Ireland – education, religious freedom, etc. In relation to the medical issue raised above, it should be noted that medical treatment is available in the applicant’s country of origin, ‘physiotherapy and occupational therapy treatment for people who have or had: low back pain’ is available [the report references, by way of a footnote, a report from the UK Home Office, ‘Country Policy and Information Note Zimbabwe: Medical Treatment and Healthcare’, Country Policy and Information Note: Zimbabwe: Medical treatment and healthcare (publishing.service.gov.uk), p. 23, (April 2021) (Accessed 02/10/2024).] The applicant has also not indicated that he could not avail of this treatment should he be returned to their country of origin. I have analysed the humanitarian considerations of this application and based upon this analysis I have found that the common good in maintaining the integrity of the international protection and immigration system outweigh the features of this case.”8

100. This extract of the report is consistent with the approach referred to by the Supreme Court in DE (an infant) v Minister for Justice and the general residual ministerial discretion to be exercised on a review which, insofar as section 49(3)(b) of the 2015 Act is concerned, does not ask with whether there is a legal right per se to remain in the State but rather with whether the Minister should exercise his or her more general humanitarian jurisdiction when looking at, for example, Article 3 and Article 8 issues, medical questions as well as a much broader range of issues from a humanitarian perspective. Whilst, the review finds that the medical evidence being discussed did not meet Article

8 of the ECHR, these medical issues were being assessed through the prism of humanitarian considerations as per the final paragraph on page 7 of the report which states that “Notwithstanding the above conclusions in respect of Article 3 and/or Article

8 ECHR, it is acknowledged that humanitarian considerations may arise that do not meet the threshold of breaches under Articles 3 and/or 8 ECHR.” Thus, this is not an ECHR (or Article 8 of the ECHR) assessment. Rather, it is a section 49(3)(b) assessment where the ministerial discretion focuses on general humanitarian considerations. This further distinguishes the facts of this case from A (Albania) v Minister for Justice and Equality Underlining/Emphasis added in this judgment. [2023] IEHC 692 where, as found by the High Court (Simons J.), there was no such engagement.

101. As quoted above, the report of the review states that “[a]gainst this background, general humanitarian considerations have been taken into account for this decision. These are separate from Articles 3 and 8 ECHR on whether the Applicant should be given a permission to remain on the basis of humanitarian considerations, in particular due to his family and personal circumstances, and any medical conditions” and addresses, on the basis of material submitted by and on behalf of the Applicant, the application of the general humanitarian discretion including, for example, whilst the Applicant was residing in the State for over two years, his position was, nonetheless, “precarious” and he had not demonstrated that a return to Zimbabwe would result in a decline in his mental or physical health or that he would not be provided with services that he currently availed of in Ireland, education, religious freedom, etc., which are references to the material submitted.

102. This, in my view, is an example of the exercise of the section 49 discretion where the

decision-maker is balancing, weighing and having due regard to the factors prescribed in section 49(3) of the 2015 Act involved, including the humanitarian considerations, and comes to a reasoned judgment which (echoing the terminology used in the case law referred to earlier) finds that the common good in maintaining the integrity of the international protection and immigration system outweighs the arguments posited on behalf of the Applicant i.e., on the facts of this case the Applicant has not established the requisite ‘something more’.

103. It is, therefore, an ‘engagement’ with the Applicant’s case and the material which was submitted on behalf of the Applicant and can be contrasted with the lack of engagement which occurred in A (Albania) v Minister for Justice [2023] IEHC 692 and the interocular ECHR-centred focus (to the exclusion of relevant humanitarian considerations) which took place in HK (Western Sahara) v The Minister for Justice & Equality [2022] IECA 141.

104. Further, later in the report of the section 49 review, it references Article 8 of the ECHR in the context of private life and family life at pages 9 and 10 were under the sub-heading “(9) Article 8 (ECHR) – Private Life”9 and at pages 14 and 15 under the sub-heading “(10) Article 8 (ECHR) – Family Life.”10

105. After having addressed the statutorily prescribed factors such as the character and conduct of the Applicant both within and (where relevant and ascertainable) outside the State (including any criminal convictions) (section 49(3)(c) of the 2015 Act in section

(6) of the report at pp. 8-9), considerations of national security and public order (section 49(3)(d) of the 2015 Act in section (7) of the report on p. 9), the common good (section 49(3)(e) of the 2015 Act in section 8 of the report, the report addresses in section 9 (commencing on p. 9) the question of private life in Article 8 of the ECHR and the issue of family life in Article 8 of the ECHR is dealt with in section (10) of the report (at pp.

14 and 15).

Underlining added. Underlining added.

106. The report’s Article 8 private life and family life assessments book-end the ‘proportionality assessment’ which (while beginning at the bottom of page 10, is carried out between pp. 11 to 13 of the report).

107. The assessment of the Applicant’s rights under the ‘proportionality assessment’ is detailed and carried out in the “context of the factual matrix” of the Applicant’s circumstances having due regard to the matters set out in the documentation submitted on behalf of the Applicant as part of the section 49 review, including, for example, the time the Applicant has been in the State, his employment history, his involvement with the voluntary sector and local Church, his participation in a mindfulness and meditation course, the medical reports which had been submitted to IPAT all of which presents “some details of the [A]pplicant’s associations and personal development in the State, although it is noted that this is limited in nature” and states that “[h]aving examined the facts and circumstances, it is not considered that there are exceptional circumstances arising”.

108. Having regard to the majority judgments of the Supreme Court in MK (Albania) the proportionality assessment in this case and the substance of the report of the review confirm that the proportionality assessment was carried out over and above, first, the earlier finding in the report (at section (9), beginning on page 9 under the sub-heading “Article 8 (ECHR)-Private Life”) that it was accepted that a decision to refuse the Applicant permission to remain would constitute an interference with the right to respect for private life under Article 8(1) of the ECHR but that it was justified by reference to Article 8(2) ECHR as (1) it was in accordance with law – sections 49 and 51 of the 2015 Act provide for the possibility of refusing permission to remain and for the making of a deportation order in respect of a person who has been refused permission under section 49(4); (2) pursued a pressing need and legitimate aim – the legitimate aim of the State to control immigration; (3) it was necessary in a democratic society, in pursuit of a pressing social need, and proportionate to the legitimate aim being pursued within the meaning of Article 8(2) of the ECHR and, second, the finding that a decision to refuse the Applicant permission to remain did not constitute an interference in the right to respect for family life under Article 8(1) of the ECHR.

109. In paraphrasing the observations of O’Donnell C.J. in MK (Albania), at paragraph 28 of his judgment, in the review carried out on behalf of the Minister by the Case Workers on 8th October 2024, having regard to the facts of the Applicant’s case, there was nothing which was capable of amounting to such exceptional circumstances which would warrant a different recommendation and decision than those given on 8th October 2023.

CONCLUSION

110. Generally, an individual’s circumstances seldom outweigh the rights of a contracting State and this is particularly so when the jurisdiction is a review application in the circumstances of section 49 of the 2015 Act. Again, from a general perspective, it is an indicia of sovereignty, and the common good, that the executive arm of government, in this case the Minister, is entitled to point to the interests of the state in upholding and in maintaining control of its borders and in upholding the integrity of the immigration system.

111. In this section 49(7) review, there was, in summary, a comprehensive engagement by the Case Workers on behalf of the Minister with the Applicant’s application which distinguishes it from the facts which applied in A (Albania) v Minister for Justice [2023] IEHC 692.

112. To recap, in A (Albania) v Minister for Justice, Simons J., at paragraph (16) of his judgment, set out how the report (of the review) in that case addressed each of the five sub-paragraphs in section 49(3) of the 2015 Act, and states at paragraph (17) of the judgment that “[a]s appears from the foregoing, there is no assessment, in this part of the impugned decision, of the submissions made on behalf of the Applicant. Rather, the submissions are summarised without comment.”

113. On the facts of that case, Simons J. describes how the decision-maker erred in misinterpreting section 49 of the 2015 Act at paragraphs (21) and (22) of his judgment, as follows:

“(20) The impugned decision suffers from precisely the same error of law as that identified by the Court of Appeal in F.K. (Western Sahara). More specifically, it is apparent from the report/decision that the

decision-maker has failed to appreciate that the inquiry under Section

49 of the International Protection Act 2015 requires more than simply a consideration of whether there has been a breach of the individual’s rights under the ECHR.

(21) There is almost nothing in the decision/report by way of

engagement with or assessment of the submissions made by the

Applicant. Such assessment as there is has been carried out through the lens of ECHR rights. This is evident, in particular, from §10 of the report (cited above). The wording used in the present case is identical to that held to be deficient by the Court of Appeal in F.K. (Western Sahara). In each case, the decision-maker mistakenly confined their consideration to determining whether there had been a breach of the Applicant’s ECHR rights. This approach fails to recognise that the inquiry under Section 49 is wider. It requires consideration, relevantly, of the Applicant’s connection to the Irish State. Here, the impugned

decision fails to assess at all the submissions made on behalf of the Applicant on 27th May 2019. It is not sufficient simply to recite the submissions made without in any way engaging with same”.

114. In Connelly v An Bord Pleanála [2018] IESC 31, [2021] 2 I.R. 752, [2018] 2 I.L.R.M.

453 at paragraph (84) of his judgment, Clarke CJ. observed, for example, that “[t]here is a middle ground between the sort of broad discursive consideration which might be found in the judgment of a court, on the one hand, and an entirely perfunctory statement that, having regard to a series of factors taken into account, the decision goes one way or the other. There is at least an obligation on the part of decision-makers to move into that middle ground, although precisely how far will depend on the nature of the questions which the decision-maker had to answer before coming to a conclusion” (as referred to by Simons J. at paragraph (32) of his judgment on A (Albania) v Minister for Justice [2023] IEHC 692).

115. The report carried out in the Applicant’s case does not contain the same errors of approach or substance as that identified in the decisions in F.K. (Western Sahara) and in A (Albania) v Minister for Justice where there was no engagement and no reasoned assessment. In contrast to the facts in A (Albania) v Minister for Justice [2023] IEHC

692 (at paragraph 33), the impugned decision in the Applicant’s case before me does not “simply [summarise] the submissions without comment”.

116. Accordingly, for the reasons set out in this judgment, the ministerial decision of 9th October 2024 and the report of the review dated 8th October 2024, in the Applicant’s case, comply with the requirements of section 49 of the 2015 Act, and the associated case law setting out the applicable principles of law, and the requirement to give reasons and is, therefore, lawful.

117. In the circumstances, therefore, I shall refuse the reliefs sought by the Applicant in this application for judicial review.

PROPOSED ORDER

118. I propose, therefore, to make an order refusing the reliefs sought by the Applicant.

119. I shall put the matter in for mention at 10.30am on Tuesday 25th November 2025 to deal with any ancillary matters which may arise, including the question of costs.

120. My provisional view is that as the Respondent has been entirely successful in opposing this application for judicial review, the default position under sections 168 and 169 of the Legal Services Regulation Act 2015, together with Order 99 of the (recast) Rules of the Superior Courts 1986 (as amended), applies, and the Respondent would be presumptively entitled to recover such measured legal costs (including reserved costs, if any) against the Applicant which may be agreed, or adjudicated upon in default of agreement, by the Office of the Legal Costs Adjudicator.

121. However, in the event that either party seeks a different form of costs order, that matter can be addressed further at the For Mention date.

Appearances

122. Michael Conlon SC and Ian Whelan BL appeared for the Applicant instructed by Trayers and Company Solicitors

123. Eoin Carolan SC and Sarah Cooney BL appeared for the Respondent instructed by the Chief State Solicitor’s Office.

CONLETH BRADLEY

14th November 2025