High Court allows certiorari against asylum refusal where a significant psychiatric report was omitted from first instance decision.

THE HIGH COURT

[2025] IEHC 690

[Record No. 2024/855JR]

BETWEEN

EL (GEORGIA)

APPLICANT

AND

CHIEF INTERNATIONAL PROTECTION OFFICER

AND

THE MINISTER FOR JUSTICE

RESPONDENTS

AND

THE INTERNATIONAL APPEALS TRIBUNAL

NOTICE PARTY

JUDGMENT of Mr Justice Barr delivered electronically on the 5th day of December 2025.

Introduction.

1. In these proceedings the applicant challenges the decision of the first respondent to refuse her a declaration of asylum or international protection on the basis that the decision was taken without the benefit of a psychiatric report which the applicant's solicitor had requested the first respondent to await before reaching his

decision.

2. Despite this request, the first respondent made his decision without the benefit of the medical report. The report of the first respondent was made on 17 April 2024. The medical report that had been obtained by the applicant's solicitor was furnished to the respondent on 23 April 2024.

3. The first respondent resists the application on the following grounds: (a) that a

decision cannot be struck down on the basis of information that was not before the

decision maker at the time that the decision was taken; (b) as the applicant had fled from a designated safe country, her application for asylum or international protection was subject to the accelerated procedures provided for in the International Protection Act 2015 (hereinafter "the 2015 Act"), as such, the respondent was not obliged to await production of the medical report before reaching his decision; (c) even if the first respondent acted wrongly in failing to await production of the medical report and in failing to consider same, the applicant had an adequate alternative remedy by way of an appeal to the International Protection Appeals Tribunal (IPAT), such that it was inappropriate to grant the relief sought against the first instance decision of the first respondent.

Background.

4. The applicant arrived in Ireland on 17 February 2024. She attended her substantive s.35 interview with the IPO on 4 March 2024. In essence, her case was that she was a young woman living in Georgia, who is gay. She stated that in Georgia there is considerable persecution against people who are gay. In particular, she stated that she had had a number of gay relationships in the course of her life. She stated that she lived with her father and with her stepmother, her mother having died when she was quite young. She stated that she got on well with them. However, at a birthday celebration held in October 2023, which was held at her place of work in a hospital, her current partner arrived at the birthday celebration. It became clear that she was in a gay relationship with her. The applicant stated that as a result she was dismissed from her position in the hospital.

5. The applicant was very upset about her dismissal. She stated that when she told her father why she had been dismissed from her position in the hospital, he proceeded to beat her. He then confined her to the house. She stated that he beat her on several occasions because she was unwilling or unable to change her sexual orientation.

6. The applicant stated that when the beatings at the hands of her father continued, she fled from Georgia on 16 February 2024.

7. The applicant was asked why she had not reported either her dismissal from the hospital, or the beatings at the hands of her father to the appropriate authorities. She stated that she had not reported her dismissal as she did not think that there was any point in doing so, given the prevalent attitude towards gay people in Georgia. She stated that she did not report the assaults at the hands of her father, due to the fact that he was an ex-policeman. She stated that it would have been futile and possibly even dangerous for her to have reported the matter to the police in Georgia.

8. Following her s.35 interview, the applicant applied for and was granted legal aid. Her present solicitor was appointed to look after her interests. She had a consultation with her solicitor on 3 April 2024. By letter dated 8 April 2024, the applicant's solicitor wrote to the first respondent. In that letter he made representations on behalf of the respondent in support of her application for international protection. He also enclosed a number of reports relating to conditions in Georgia. The letter also contained the following:

“NB. The applicant is scheduled to be assessed by Dr Gillian Moore Groarke, Consultant Psychologist, Cork, on 17 April 2024 at 11.00am and we would expect to be in a position to furnish your office with a report from Dr Moore Groarke shortly thereafter and, in the circumstances, would ask that your office refrain from making any decision on client's application until you are furnished with same report.”

9. The applicant was examined by the consultant psychologist on 17 April 2024. The psychologist issued her report on 19 April 2024. It was furnished to the first respondent by the applicant's solicitor by letter dated 23 April 2024.

10. In the medical report issued by Dr Moore-Groarke on 19 April 2024, she came to the following conclusions:

“This young lady is suffering from severe psychological trauma. She is totally isolated and remains severally [sic] depressed and anxious. She has fitful and disturbed sleep which is best described as severe insomnia. She describes having nightmares, flashbacks and she is hypervigilant and feels that someone will kill her.

She has eight years’ experience of working as a nurse. She hopes to learn English and find work here in Ireland. Her diagnosis constitutes PTSD. She would benefit from seeing a psychiatrist to put some counselling support in place, and to return to taking her medication.”

Submissions of the Parties.

11. It was submitted on behalf of the applicant that the first respondent had acted both unlawfully and unreasonably in failing to await the production of the medical report, as had been requested by the applicant's solicitor. It was submitted that this was a crucial document in relation to her narrative. It would have provided significant support to her narrative and therefore would have helped the credibility issue which had been ultimately determined against her in the report that had issued from the first respondent.

12. It was submitted that because the first respondent had not awaited production of the medical report and therefore had not considered a highly relevant document, the

decision had to be set aside as the applicant's application for international protection had not been properly considered by the first respondent.

13. In relation to the alternative submission that had been put forward on behalf of the first respondent that the applicant should not be granted the reliefs sought in the present proceedings as she had an adequate remedy by way of appeal to IPAT, it was submitted that such an appeal would not remedy the defect that had occurred in the first instance decision because the medical report would only be considered on the appeal and therefore the applicant would lose the opportunity of having it considered both at first instance and if necessary, on an appeal. It was submitted that in these circumstances it was appropriate to grant the applicant the reliefs sought in her statement of grounds.

14. The position of the first respondent in relation to whether he was obliged to await production of the medical report was pleaded in the following way at para. 7 of the respondents’ statement of opposition:

“The respondent received a psychologist's report in respect of the applicant on

23 April 2024. It is admitted that the psychologist's report was not considered by the International Protection Officer in preparing the s.39 report in circumstances where that report had been completed on 17 April 2024. It is denied any unlawfulness arises. Without prejudice to the generality of the foregoing: (a) no reasonable explanation was advanced for the delay in submitting the psychologist's report; (b) as a matter of statute, applications for international protection from applicants from safe countries of origin are required to be dealt with under accelerated procedures. In the circumstances, it was reasonable to conclude the examination of the international protection application without awaiting the psychologist's report; (c) in correspondence of 8 April 2024, the applicant placed emphasis on the need to await the psychologist's report in respect of her permission to remain application. No specific submission in respect of the importance of the psychologist's report to the international protection application was advanced.”

15. It was submitted on behalf of the respondent that it was not necessary for the first respondent to await production of the medical report before concluding his report pursuant to s.39 of the 2015 Act. In the alternative, it was submitted that the medical report did not significantly advance the credibility of the applicant's narrative, such that it could be said that had that report been before the decision maker at first instance, he would have reached a different decision on the credibility of the applicant's narrative.

16. In the further alternative, it was submitted that having regard to the fact that there is an extensive appeal mechanism provided for under the 2015 Act, it would be inappropriate for the court to grant certiorari of the first instance decision, when the applicant had an adequate alternative remedy by way of an appeal to IPAT.

Discussion and Conclusions.

17. It was accepted by the first respondent that the applicant is a national of Georgia and is a gay woman.

18. Georgia is, and was at the material time, designated as a safe country. As such, the applicant's application for asylum or international protection fell to be considered pursuant to the accelerated procedures provided for in the 2015 Act.

19. The chronology of the relevant events is as set out above. The respondent is correct that in general, a decision cannot be struck down on the basis that the decision maker did not consider material that had not been placed before him or her.

20. The central issues that arise for determination on this application are: was the first respondent wrong to proceed to make its report in the absence of the medical report, when the applicant’s solicitor had requested that the first respondent should await its production?

21. If the answer to that is in the affirmative, the second issue is whether the applicant has an adequate and effective remedy by way of an appeal to the IPAT, such that she should be refused the reliefs sought in her statement of grounds.

22. The provisions of Art. 4 of Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualifications and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted (hereinafter “The Qualification Directive”), have been transposed into Irish law in s.28 of the 2015 Act.

23. That section provides that an International Protection Officer shall in cooperation with the applicant assess the relevant elements of the application. The section goes on to provide that in so doing, the International Protection Officer shall consider the applicant’s statements and all the documents submitted by him or her regarding his or her age; background; including that of relevant relatives; identity; nationality or nationalities; country or countries, and place or places of previous residence; previous asylum applications, whether made in the State or outside it; travel routes; identity and travel documents; and reasons for applying for international protection.

24. The section provides that the assessment shall be carried out on an individual basis and shall include taking into account the following: all relevant facts as they relate to the country of origin at the time of taking a decision on the application; the relevant statements and documentation presented by the applicant; and the individual position and personal circumstances of the applicant. The section also provides that the fact that an applicant has already been subject to persecution or serious harm or to direct threats of such persecution or such serious harm, is a serious indication of the applicant’s wellfounded fear of persecution or real risk of suffering serious harm, unless there are good reasons to consider that such persecution or serious harm will not be repeated.

25. I hold that the fact that the applicant has fled from a designated safe country and therefore that her application was being dealt with under the accelerated procedures provided for under the 2015 Act, does not mean that her right to have her application fully considered was taken away or abridged.

26. That is made clear by the decision of the CJEU in HID, BA v Refugee Applications Commissioner & Ors. (case C–175/11) where the court clearly stated that a prioritised procedure must not deprive applicants coming within that category of the guarantees required by Art. 23 of Directive 2005/85, which apply to all forms of procedure. The court went on to hold that the establishment of a prioritised procedure must allow in full the exercise of the rights that that directive confers on applicants for asylum who are Nigerian nationals. In particular, the court held that applicants must enjoy a sufficient period of time within which to gather and present the necessary material in support of their application, thus allowing the determining authority to carry out a fair and comprehensive examination of those applications and to ensure that the applicants are not exposed to any dangers in their country of origin.

27. Accordingly, I hold that the fact that the applicant’s application for asylum or international protection was being dealt with under the accelerated procedures provided for in the 2015 Act, did not mean that she was not entitled to a full consideration of her application.

28. Based on the chronology of events as set out above, I find that the applicant’s solicitor did not delay in obtaining the medical report, or in submitting it to the first respondent. It has to be remembered that in the letter appointing him to represent the applicant, it was made clear that he could only seek to obtain additional reports if that was sanctioned in advance by the Legal Aid Board: see letter from the Law Centre (Cork North) to the applicant’s solicitor dated 26 March 2024.

29. I am satisfied that the applicant's solicitor acted promptly in obtaining an early examination by a suitably qualified expert. On 8 April 2024, he wrote to the first respondent informing him that an appointment had been arranged for the applicant to be examined by a psychologist on 17 April 2024. The first respondent was asked to await receipt of that report before issuing his final report pursuant to s.39 of the 2015 Act.

30. In the circumstances which transpired, the first respondent did not do that. He proceeded to issue his final report on 17 April 2024, being the day that the applicant was medically examined by the psychologist. The medical report was obtained two days after the examination and was forwarded immediately by the solicitor to the first respondent by letter dated 23 April 2024.

31. I hold that in failing to await production of the medical report, the first respondent acted in breach of the terms of s.28 of the 2015 Act. He did not cooperate with the applicant in the presentation and consideration of her application for asylum or international protection.

32. I hold that in so doing, the first respondent acted unreasonably. He had been asked by a solicitor to await production of a medical report, which the solicitor had considered was necessary in order to put his client’s application fully before the first respondent. The solicitor was not seeking a deferral of the conclusion of the report to some indeterminate date in the future. He informed the first respondent that he had obtained an expedited appointment with the psychologist. It was reasonable to assume that the report would be forthcoming within a short period of that examination. In the events which transpired, the report issued two days after the examination. It was furnished to the first respondent four days later.

33. I hold that in these circumstances, notwithstanding that the applicant's application was being dealt with under an accelerated procedure, the first respondent acted unreasonably in failing to await production of the medical report.

34. In argument at the bar, counsel for the respondent submitted that even if the first respondent had been wrong not to have awaited production of the medical report, it did not go so far as to establish that her PTSD had arisen as a result of her treatment at the hands of her father and therefore did not establish that had it been produced and considered, the decision of the first respondent would have been different in relation to her lack of credibility.

35. I hold that that is not the correct test. I accept the submission made by Mr Conlon SC on behalf of the applicant that it is only necessary to establish that the evidence which was not considered might have led to a different credibility finding being made. I am satisfied that when one has regard to the content of the medical report, which confirmed that the applicant was a significantly traumatised person who had a diagnosis of PTSD, that represented significant evidence which supported the credibility of her narrative. I am satisfied that had that report been considered, it might have led to a different conclusion on the credibility issue. That is sufficient for the present purposes where the court has come to the conclusion that the first respondent ought to have considered that document.

Alternative Remedy Issue.

36. I turn now to the second main ground of argument which was to the effect that even if the first respondent had been wrong not to have awaited and considered the medical report, relief should be refused as the applicant has an adequate remedy in the form of a full de novo appeal to the IPAT.

37. In support of the submission that where a statutory appeal mechanism has been put in place, it is only in rare and exceptional cases that an applicant will be permitted to seek judicial review of the first instance decision, rather than by being obliged to pursue their remedy by way of appeal, counsel for the respondent referred to the wellknown dicta in the following cases: State (Abenglen Properties) v Dublin Corporation [1984] IR 381; EMI Records (Ireland) Ltd v Data Protection Commissioner [2013] 2 IR 669; BNN v Minister for Justice [2009] 1 IR 719; Chubb European Group SE v HIA [2022] 2 IR 686; ESO v International Protection Office [2023] IEHC 197; AE v Chief International Protection Officer [2023] IEHC 695; MM v The International Protection Office [2025] IEHC 118.

38. Counsel for the applicant, accepted that it is only in exceptional cases that an applicant will be permitted to challenge a first instance decision by way of judicial review proceedings, rather than pursue the appeal procedure provided for by statute. However, he submitted that in appropriate cases where a significant injustice has been done in the process at first instance, which cannot be remedied by an appeal, judicial review of the first instance decision will be allowed, see: Stefan v Minister for Justice, Equality & Law Reform [2001] 4 IR 203; AE v CIPO [2023] IEHC 695.

39. In 2023, Phelan J delivered two significant judgments on the issue of the existence of an alternative remedy. The first of these was the ESO case which was delivered by Phelan J in April 2023. In the course of her decision, she noted that in the Stefan case the Supreme Court had stated that the existence of a fair appeal did not cure an unfair hearing. That dictum was made in circumstances where the first instance

decision had been made in breach of fair procedures because an important part of the applicant’s questionnaire had been omitted and had not been put before the decision maker. Phelan J. noted that the Supreme Court had held that once it was determined that certiorari may be granted, the court still retained a discretion in all the circumstances of the case as to whether an order should issue. The circumstances identified in the judgment in that case as relevant to the exercise of a discretion in judicial review proceedings included the existence of an alternative remedy; the merits of the application; the consequence to the applicant if an order is not granted; and the degree of fairness of the procedures.

40. The judge went on to hold that if a clear and compelling case was not demonstrated by the applicant that an injustice had been done at first instance, which was incapable of being remedied on appeal; the applicant must avail of the procedure that had been set up by the Oireachtas to appeal the first instance decision. By way of example of cases which might be amenable to judicial review, Hedigan J. in a previous case had identified situations where only a partial appeal was available with the result that the injustice complained of may be incapable of being remedied on appeal.

41. In the case before her however, Phelan J. noted that while some frailty had been identified with the first instance decision, such frailty as had been identified could adequately be addressed in an appeal to the IPAT without risk of injustice to the applicant. For that reason, she refused the reliefs sought by the applicant.

42. In AE v CIPO, which was delivered by Phelan J. in December 2023, she reviewed the cases where a party had been allowed to proceed with a challenge by way of judicial review proceedings to a decision granted at first instance and also had regard to the case law which had held that it was only in “rare and exceptional” cases that such a challenge would be allowed. She stated that the decision as to whether a challenge should be allowed to a decision granted at first instance, fell to be determined in the following manner:

“37. It seems that key to a court’s decision as to which side of the dividing line between granting and refusing relief a case may fall where an appeal is available is whether the failure to consider a document gives rise to such a fundamental unfairness in the process as to undermine the integrity of the process or, put otherwise, whether the substance of the excluded evidence is such that its exclusion so prejudices the assessment of the claim as to render the process so unsatisfactory as to undermine its integrity. Ultimately, the answer as to which side of the line a case falls may depend on the degree of potential unfairness which flows from the identified error or what Murray C.J. termed “the degree of fairness of procedures” or “the degree to which fairness of the hearing was compromised” in A . K . ( K a y o d e ) . This is determined by an assessment on the facts of a given case of whether the process has broken down in a manner which draws into question the overall reliability or trustworthiness of a decision to be taken on the fundamentally important issue of an entitlement to international protection.”

43. In MM v IPO this Court had to deal with the issue of the existence of an alternative remedy. The court stated that it was settled law that normally where there was a statutory appeal provided to an applicant, they would have to exhaust that method of redress before bringing judicial review proceedings challenging the first instance

decision. However, the court noted that in some rare and exceptional cases it would be appropriate for a party to proceed to challenge a decision at first instance, notwithstanding that there may be an appeal provided for under the relevant statutory code.

44. The court stated that this would only arise where the hearing at first instance was so deficient, or so unfair, that it could not be said that there was any proper consideration of a material issue in the case, such that to force a disappointed party to proceed by way of an appeal, would, in effect, mean that he or she would only get one

decision on the issue being the decision on appeal: see paras 13 and 14.

45. The court also notes that the Supreme Court has recently admitted into its list an appeal which deals with the issue of whether it is appropriate to allow a challenge to a first instance asylum decision when there is an appeal to IPAT available. On 30 July 2025, in AB v CIPO [2025] IESCDET 110, the Supreme Court admitted into the list the following issue which they deemed raised a matter of general public importance:

“Where an applicant for international protection under the International Protection Act 2015 is dissatisfied with a decision made at first instance on their application, in what circumstances may such an applicant seek judicial review of that decision given the availability of an appeal from that decision to the International Protection Appeals Tribunal under Part 6 of the International Protection Act 2015.”

46. In the present case, I am satisfied that the medical report from Dr Moore- Groarke was a significant document. It confirmed that the applicant had suffered psychiatric trauma in Georgia. It confirmed a diagnosis of PTSD. I am satisfied that it is a document that could have altered the decision that was made at first instance. At the very least, it provided significant support to the applicant’s narrative and thereby would have bolstered her position on credibility.

47. If the applicant is refused relief in these proceedings and is forced to proceed by way of an appeal, it will mean that this significant document will only be considered on one occasion, being on the appeal to IPAT. That will deprive the applicant of the significant benefit of having the medical report considered at first instance as well.

48. I am satisfied that the medical report in this case is similar to the omitted material in the Stefan case and to the omitted documentation concerning the location and nature of the applicant's employment as a border guard which was considered in the AE case.

49. Given that I am satisfied that this document provides significant support to the applicant's narrative and therefore could result in a different conclusion being rendered when her credibility is properly assessed, in these circumstances, I am satisfied that it is appropriate to allow the applicant to seek certiorari of the first instance decision, rather than compel her to pursue a remedy by way of appeal to IPAT.

Other Grounds.

50. While it was not argued at the hearing, but was pleaded in the statement of grounds that the first respondent did not adequately or properly consider country of origin information that had been submitted on behalf of the applicant; this is not a ground on which this Court could strike down the decision of the first respondent, as that country of origin information was considered by the first respondent in his report. If the applicant feels that her country of origin information was not properly considered by the first respondent, that is quintessentially a matter for an appeal.

Proposed Order.

51. Having regard to the findings made in this judgment, the court would propose that the final order should provide for the following: grant certiorari of the s.39 report of the first respondent dated 17 April 2024; remit the matter back to the first respondent for fresh consideration.

52. As the decision of the second respondent did consider the medical report, but as this decision is predicated on the existence of a refusal of international protection to an applicant, the court will hear the parties on the appropriate order to be made in this regard.

53. As this judgment has been delivered electronically, the parties will be allowed four weeks within which to furnish brief written submissions of not more than 1000 words on the terms of the final order and on costs and on any other matters that may arise.

54. The matter will be listed for mention at 10.30 hours on 27 January 2026 for the purpose of making final orders.