High Court holds s.5 of Illegal Immigrants (Trafficking) Act 2000 does not apply to refusal to extend appeal time.

THE HIGH COURT

JUDICIAL REVIEW

[2025] IEHC 734

[Record No. 2025/1073JR]

BETWEEN

GB

APPLICANT

AND

THE INTERNATIONAL PROTECTION APPEALS TRIBUNAL, THE MINISTER

FOR JUSTICE HOME AFFAIRS AND MIGRATION,

IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

JUDGMENT of Ms Justice Miriam O’Regan, delivered on the 18th day of December 2025.

Introduction

1. On the 20 October, 2025 a written judgment was delivered to the within parties wherein the applicant's application to quash a decision of the first named respondent of 2 July, 2025, in which the first respondent refused to extend time under Regulation (4) of the International Protection Act 2015 (Procedures and Periods for Appeals) Regulations 2017 (the “2017 Regulations”), was refused by this Court. On 25 November 2025 the costs of the proceedings were awarded to the respondent to be adjudicated upon in default of agreement.

2. This judgment addresses whether or not the within proceedings are subject to s.5 of the Illegal Immigrants (Trafficking) Act 2000 (“the 2000 Act”) such that a certificate for leave to appeal is required and, if so, should a certificate for leave to appeal be granted in the circumstances.

3. The applicant submits that s.5 of the 2000 Act does not apply to the relevant provision (namely Regulation 4(4) of the 2017 Regulations) as it is not included as one of the range of decisions listed in s.5(1) which said decisions are deemed subject to the provisions of s.5. It is argued that the Supreme Court judgment in AWK v Minister for Justice [2024] 1 IR 539 (“AWK”) can be distinguished as it was dealing with a single section in the International Protection Act, 2015 (“the 2015 Act”). Furthermore, the Minister is enabled under s.5(9) the 2000 Act to include further decisions and determinations to the list of matters covered by s.5 of the 2000 Act but has chosen not to do so. The impugned decision in this matter was dealing with an application for an extension of time and not dealing with an international protection application therefore separate and distinct from the preceding decision, being international protection application decision.

4. The respondent accepts that the decision the subject matter of the within proceedings is not enumerated in s.5(1) and that there does not appear to be any direct authority regarding the applicability of s.5 to Regulation 4(4). However, the respondent argues that such a decision is by implication subject to s.5 or is otherwise absorbed into s.5 of the 2000 Act as it is one of the suite of decisions/determinations that might be made during the course of the available procedures involved in an international protection application. The Respondent relies on AWK .

AWK

5. In AWK the Supreme Court was dealing with an applicant from Pakistan who came to Ireland in August 2015 and applied for international protection, which was rejected in the first instance decision and rejected again on appeal. Based on such rejections the Minister made a

decision under s.49 of the 2015 Act not to afford the applicant leave to remain in Ireland and subsequently made a decision on review under s.49(7) of the 2015 Act not to afford the applicant permission to remain.

6. The question that was considered by the Supreme Court was whether or not the review

decision of the Minister aforesaid was made under s.49(4)(b) of the 2015 Act and if so s.5 of the 2000 Act applied (para. 32 of AWK under the heading “Decision”).

7. Reference was made to the judgment of Humphreys J in the High Court who found that by virtue of the provisions of s.49(8) of the 2015 Act, the review decision under sub.7 resulted in the decision being included under sub.4 and was therefore associated with the original

decision which was enumerated under s.5 of the 2000 Act. Accordingly, s.5 applied to the review decision. Humphreys J expressed the view that even if he was incorrect in that regard a purposive interpretation would apply and, on that basis, he was satisfied that s.5 would apply to the review decision.

8. Reference was also made to s.5(1) of the Interpretation Act 2005 (“the 2005 Act”) which provides that in construing the provisions of any act of the Oireachtas, the intention of the Oireachtas or parliament is to be ascertained. If a literal interpretation is absurd or fails to reflect the plain intention of the Oireachtas, or is obscure or ambiguous, the provision is to be given a construction that reflects the plain intention of the instrument - where that intention can be ascertained from the instrument as a whole in the context of that enactment.

9. Although reference was made to s.5 of the 2005 Act and other possible mechanisms to ascertain the meaning of a particular legislative provision ultimately the Supreme Court was satisfied that the matter could be resolved on the basis of an application of the literal rule, being the primary rule of interpretation. In coming to its conclusion at para. 32 of the judgment of McKechnie J posed the question as to whether or not the review decision is made under s.49(4)(b) or is it a separate and distinct decision. At para. 33 McKechnie J expressed himself satisfied that the issue could be resolved by a consideration of the text used, when correctly contextualised by reference to the subject matter of the legislation as a whole.

10. In making a determination based on a literal approach the basic obligation of such an exercise is to determine the intention of parliament (para. 34). At para.35 the judgment noted that the most appropriate means of achieving this objective is by reference to the words used as the text published is the basic material involved because it is the most pre-eminent indicator of intention.

11. At para. 41 it was noted that only one decision subsisted in respect of the grant or refusal of permission to remain and at para. 42 the court indicated that it was satisfied that on a literal interpretation of the provisions of s.49 of the 2015 Act, the decision which stands after the negative review is that as originally made under s. 49(4)(b) of the 2015 Act. At para 43 it was indicated that if the applicant’s submission is correct it would have consequences entirely discordant with the 2015 Act - it would mean that both the antecedent and subsequent decisions, namely refusing permission to remain and the making of a deportation order which are so closely related to a review decision, were subject to the restrictive regime but not the review.

12. At para. 50 the court quoted Clarke J in Kadri v Governor of Wheatfield Prison [2012] IESC 27 to the effect that under s.5 of the 2005 Act the court’s mandate is to engage in constructive interpretation rather than rewriting.

Submissions

13. The respondent argues that the same logic that was applied in AWK can be applied to the instant circumstances, as, what remains following a refusal to extend time under Regulation 4(4) would be the recommendation of the International Protection office under s.39(3)(c) which is enumerated in section 5(1) of the 2015 Act. In addition, the respondent relies on the finding by McKechnie J in AWK that if the s.49(7) decisions were not subject to s.5 then this would have consequences entirely discordant from the overall scheme of the Act if antecedent and subsequent decisions were subject to the restrictive twenty-eight day regime, but not the review

decision. The respondent submits that it would be entirely incongruent if there were ten working days to lodge an appeal against an IPO recommendation but any refusal to extend time for an appeal was subject to the three month time limit provided in O.84 of the Rules of the Superior Courts as opposed to the twenty-eight day period provided for by s.5 of the 2000 Act in circumstances where s.5 of the 2000 Act does apply to the IPO and IPAT recommendation/decision.

14. Finally the respondent also relies on the judgment of Ms Justice Phelan in MYM v Minister for Justice Home Affairs and Migration [2025] IEHC 611 where the court held that a challenge to a s.50 refoulement decision, taken at the same time as a challenge to a s.51 deportation order were both governed by s.5 of the 2000 Act, but only s.51 being referenced in s.5(1) of the 2000 Act. In so finding the court noted that context can be critical, and the legislature cannot have intended a result that is absurd. In that matter leave was granted on the basis that s.5 of the 2000 Act applied.

15. The applicant's argument is to the effect that under s.5(9) of the 2000 Act the Minister is enabled to prescribe any decision, determination or recommendation to be a decision to which sub.1 applies. Furthermore, it is noted that there has been a series of insertions in respect of decisions to which s.5 applies but none include Regulation 4(4) of the 2017 Regulations. The applicant argues that if it was intended that a decision under Regulation 4(4) would be a

decision, recommendation or determination to which s.5(1) applied then same could have been included at any time since 2017.

Decision

16. I am satisfied that the Respondent has not demonstrated that s.5 of the 2000 Act does apply to the determination made under Regulation 4(4), at issue in the within proceedings for the following reasons: – a. The Supreme Court came to its determination on the basis of a literal interpretation of the provisions of s.49 rather than on the basis of an interpretation based on implication, or being absorbed, as per the Respondent’s submission in relation to re. 4(4). Furthermore, although the Supreme Court did consider s.5 of the 2005 Act and a purposive approach (given the parties’ submissions) neither were relevant to the Court’s ultimate decision. b. In coming to its decision, the Supreme Court raised the query as to whether or not the review decision was made under s.49(4)(b) or was it separate and distinct. In the instant matter clearly the IPO decision, and had there been an appeal to IPAT, the IPAT decision, would both deal with the application for international protection made by the applicant however the Regulation 4(4) decision confined its determination, correctly, on the basis of the provisions of Regulation 4, to the provisions of Regulation 4(5) concerning the basis for the delay in lodging an appeal. Accordingly, the Regulation 4 determination was separate and distinct from the IPO, and potentially IPAT, decision(s). c. It is not simply a situation whereby an applicant has ten days to appeal an IPO

decision under the Regulations as there is provision to extend that time provided Regulation 4(5) is satisfied. Furthermore, there is no time limit incorporated in the Regulations as to when ultimately an application for an extension of time to appeal might be made. d. In MYM aforesaid leave was granted on the basis that s.5 applied although that in and of itself would not necessarily have been dispositive of the outcome. In addition. however, the order under s.51 of the 2015 Act is included in s.5 of the 2000 Act whereas the decision under s.50 is not. The s.50 decision and the s.51 order were taken at the same time, and the court was satisfied that this context can be critical in a consideration of the intention of the Oireachtas. e. In the Supreme Court it was indicated that it is permissible to view the measure in issue by reference to the surrounding words or other relevant provisions and, if necessary, by reference to the Act as a whole. In the instant matter to find that Regulation 4(4) is included (by implication or being absorbed) in s.5 of the 2000 Act would require the court to go beyond what was said to be permissible by the Supreme Court and to look not at the surrounding words or other relevant provisions or the Regulations as a whole but to look at the Act of 2015. Accordingly, it seems to me that such an exercise would involve a rewriting of the Regulations as opposed to an engagement in constructive interpretation. f. Given the fact that there is no time limit prescribed in making an application to extend time to appeal the IPO decision contained in the 2017 Regulations it could not be said that an interpretation of those regulations that s.5 of the 2000 Act did not apply is absurd or does not reflect the plain intention of the Minister (as opposed to the Oireachtas in the case of the 2015 Act). g. The fact that antecedent and subsequent decisions are subject to s.5 of the 2005 Act, on that basis alone, does not, nor did it in AWK, amount to a sufficient basis to arrive at a construction that s.5 applies to the determination in respect of the extension of time. The ratio of the judgment is contained in paragraphs 32 to 45, being the paragraphs included under the heading of “Decision”. h. The argument that s.5 of the 2005 Act applies by implication or being absorbed amounts to a very broad sweep without a consideration of the words used (see para.

35 of AWK). i. Although clear from the long title to the 2017 Regulations same included the purpose of ensuring efficiency of the Tribunal and expeditious disposal of the process, there is no mention of s.5. j. As the Regulation stands there is nothing obscure, ambiguous or absurd in it’s provisions. Nor is it evident that reg.4 thereof does not reflect the intention of the Minister having regard to the words used, the surrounding provisions or the Regulations as a whole.

Conclusion and Costs

17. In the light of the foregoing, I am not satisfied that AWK affords sufficient authority to imply that s.5 of the 2005 Act applies to a refusal to extend time by the first named Respondent of 2 July, 2025 such that leave from this court is required to appeal to the Court of Appeal. In the circumstances an order providing for the costs of this portion of the matter will be made in favour of the Applicant to be adjudicated upon in default of agreement.