High Court refuses leave for judicial review where applicant fails to show substantial grounds to quash refusal.

THE HIGH COURT

[2025] IEHC 761

[Record No. 2025/1573 JR]

IN THE MATTER OF THE ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000

AND

IN THE MATTER OF THE INTERNATIONAL PROTECTION ACT 2015

BETWEEN

M

APPLICANT

AND

THE MINISTER FOR JUSTICE, HOME AFFAIRS AND MIGRATION

RESPONDENT

EX TEMPORE JUDGMENT delivered by Mr. Justice Micheál P. O’Higgins on 18th December 2025

Introduction

1. This is my ex tempore judgment on the applicant’s application for leave to issue judicial review proceedings to quash the decision of the respondent, dated the 20 th of August 2025, made pursuant to section 49(4)(b) and section 49(7) of the International Protection Act 2015, refusing the applicant permission to remain in the State. The respondent contests the leave application and contends that the proceedings have no reasonable prospect of success.

2. On the 19th of November 2025, Bradley J. directed that the leave application should be brought on notice to the respondent. This was in circumstances where a few days earlier, on the 14th of November 2025, he had delivered judgment in a case involving what the respondent contends were identical legal issues. That other judgment is entitled S.M. v. The Minister for Justice [2025] IEHC 629. The parties are agreed that the decision under challenge is subject to section 5 of the Illegal Immigrants (Trafficking) Act 2000 and that, therefore, the threshold for leave being granted is that of ‘substantial grounds’ as distinct from the normal threshold in judicial review of ‘arguable grounds’.

3. I propose to divide my judgment into the following broad sections:

a) Background facts;

b) Grounds of challenge and extension of time;

c) Relevant case law and principles;

d) Consideration of the respondent’s decision;

e) Conclusion.

a) Background facts

4. The parties provided helpful written submissions which include a statement of relevant facts. These background facts are not in controversy. I will for convenience adopt the statement of facts set out in the applicant’s submissions. The applicant is a national of Malawi and was born in January 1997. He has been married to his wife since September 2021, having been in a relationship since 2018. They have a son and daughter together who are twins and were born in February of 2022. His wife and children reside in Malawi. His parents are deceased. The applicant’s papers indicate that he identifies as bisexual. He began feeling this way in or around 2021 and began engaging in clandestine same-sex relationships after this, including after his marriage. He says that in 2023 his sexuality became public knowledge after an incident where he was discovered with another man, and he was severely beaten and injured as a result. His wife discovered his sexuality at this time and was shocked and did not speak to him for some time. He was, effectively, in hiding due to threats and his fears of being assaulted again. He arranged for his wife and children to move to a different village, and he obtained a UK visa and travelled to the UK in July of 2023.

5. Initially he intended to seek asylum in the United Kingdom. However, having heard that the UK was sending asylum seekers to Rwanda, he says he was discouraged from applying, especially in light of the treatment of members of the LGBTQ community in Rwanda. The applicant stayed in the UK for one year before coming to Ireland. He arrived in Ireland on the 31st of July 2024 and applied for international protection on the 1st of August 2024 based on his sexuality and what he had experienced in Malawi. His application for international protection was refused at first instance and on appeal, with both the International Protection Office (the “IPO”) and the International Protection Appeals Tribunal (“IPAT”) rejecting the credibility of his claim, including rejecting his claim to be bisexual. The IPO also made an initial decision on the 22nd of November 2024 refusing his application for permission to remain under section 49 of the International Protection Act.

6. On the 11th of August 2025, the applicant submitted further information pursuant to section 49(7) of the 2015 Act and the IPO’s previous permission to remain decision was reviewed as a result. By letter of the 21st of August 2025, which was a Thursday, received on the following Monday the 25th of August of this year, the respondent notified the applicant that his review application for permission to remain had been refused. Enclosed was a section 49(7) report dated the 20th of August 2025, in which the initial permission to remain refusal decision was affirmed. The applicant and his solicitor subsequently wrote to the respondent in relation to certain medical issues with the applicant’s left eye principally and by letter of the 26th of September of 2025, received on the 29th of September, the applicant was notified that the respondent had made a deportation order in respect of him. Enclosed was a report under section

50 of the International Protection Act 2015 in which it was found that there were no refoulement concerns in his case, and the deportation order dated the 17th of September 2025.

b) Grounds of challenge and extension of time

7. Senior counsel for the applicant in oral submissions has helpfully narrowed the applicant’s grounds of challenge to a single ground. Counsel informed the court that in light of recent jurisprudence, including Mr. Justice Bradley’s decision in S.M. and also the Supreme Court’s decision in MK (Albania), legal ground one in the statement of grounds relating to the complaint that the Minister applied a threshold of exceptionality and/or wrongly limited the assessment by requiring a breach of Article 3 or Article 8 of the ECHR was not, in fact, being pursued. Ground three relating to the challenge to the deportation order, dated the 17th of September 2025, does not involve a standalone or independent ground of challenge to the Minister’s decision, but rather involves, if you like, a secondary or consequential challenge to the deportation order premised on the legal challenge to the section 49 decision succeeding. In that sense, the challenge to the deportation order only arises if the challenge to the decision refusing permission to remain succeeds.

8. That leaves legal ground number two, which is articulated in the following terms in the applicant’s statement of grounds. This is a quotation from ground no. 2 on page five of the booklet: “The Respondent failed to provide sufficient reasons for refusing the Applicant’s permission to remain. The Respondent merely recited the Applicant’s submissions in support of his application, and noted the documents submitted, without engaging with same - for example finding at page 8 of the decision “It is noted that the applicant’s legal representatives have provided copies of various documents in respect of the applicant’s undertaking of further training and education in the State and his volunteering activities”, without engaging with the submission made on behalf of the Applicant.” Then there is a further recital of the impugned decision: “The Applicant’s level 5 certificate from Dundrum College in respect of training as a healthcare assistant was a new factor which had not been before the Respondent when the initial permission to remain refusal decision was made on 22 November 2024. Although the respondent finds at page 11 of the decision “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” the analysis in relation to the common good is clearly deficient, given the failure to engage in any meaningful way with the submission that more healthcare workers are needed in the State - although this submissions [sic] is set out at pages 13-14 of the decision, no comment is passed on whether this is a valid consideration and no reason has been given as to why it has not been afforded significant weight.”

9. In addition, the applicant seeks an extension of time for the purpose of bringing forward this challenge. The relevant timeline is as follows: The impugned decision was made by the Minister’s designate on the 20th of August of this year. The letter from the deciding officer was received on the 25th of August. The 28-day time limit that applies to challenging such decisions expired on the 21st of September. The applicant’s judicial review papers were filed in the Central Office on the 22nd of October. Therefore, the applicant seeks an extension of approximately one month to bring the challenge. The grounds for seeking the extension are set out in the affidavit of the applicant’s solicitor, Ms. Siobhán Conlon, sworn on the 22nd of October of this year. The affidavit focuses on the points that: the delay occurred during the long vacation; work was being done on the file during the relevant period; the fact that it is not a case of the file having been abandoned or neglected; the pleadings had to be reformulated and amended on the advices of counsel; it was appropriate, in the interests of justice and less costly for all concerned that the challenge to the deportation order should be included as part of the one set of proceedings; the fact that the applicant was within time to challenge the deportation order; the modest length of the delay overall; and the complete absence of prejudice to the respondent. I will address the substance of the extension of time issue later should that be necessary.

c) Relevant case law and principles

10. The court was provided with a number of authorities. These included the decision of the Supreme Court in MK (Albania) v. Minister for Justice [2024] 2 IR 113, and two decisions of my colleague, Mr. Justice Simons: A. (Albania) v. Minister for Justice [2023] IEHC 692 and

P. (Zimbabwe) v. International Protection Appeals Tribunal [2025] IEHC 403. I was also provided with the very recent decision of Mr. Justice Bradley that I’ve mentioned, S.M. v. The Minister for Justice, delivered on the 14th of November of this year.

11. In this ex tempore decision that I am delivering, I do not propose to carry out a review of all relevant case law touching on the legal issues that arise. That is neither desirable nor necessary in the circumstances of this case, where the parties are largely agreed as to the applicable legal principles, though not completely so, and, also, of course, differ as to the outcome that should flow from the application of the relevant principles.

12. In MK (Albania), the applicant was an Albanian national who arrived in the State as an unaccompanied minor. The applicant’s request for international protection was refused. In addition, it was recommended that the applicant should not be given permission to remain. The respondent refused to grant the applicant permission to remain in the State. The applicant appealed the refusal of international protection to IPAT, the appeals tribunal, which dismissed the appeal. He then submitted a request for a review of the refusal of permission to remain, contending that the refusal of leave to remain was extremely disruptive to his life and that the deportation represented a disproportionate interference with his private life in the State and therefore amounted to a breach of both Article 8 ECHR and Article 40.3 of the Constitution. The respondent determined that the applicant’s case did not exhibit any exceptional features such that the decision to refuse leave to remain could be said to have consequences of such gravity for the applicant as potentially to engage the operation of Article 8 and that, accordingly, a proportionality assessment did not arise. The respondent subsequently made orders refusing the applicant leave to remain in the State and providing for his deportation.

13. The applicant commenced judicial review proceedings seeking inter alia an order of certiorari of the review of the leave to remain decision and the consequent deportation order. Ms. Justice Burns in the High Court held that a migrant with a non-settled or precarious residential status could not assert Article 8 rights unless exceptional circumstances arose. The court further concluded that until such time as Article 8 was actually engaged, there was no necessity to conduct a proportionality assessment as, otherwise, such an assessment would be conducted without the applicability of Article 8 having been established in the first place. The applicant was granted leave to appeal directly to the Supreme Court.

14. It was held by the Supreme Court, in dismissing the appeal, that it was in the nature of any decision that refused leave to remain in the State and rendered future residence unlawful that such a decision was normally likely to have an impact of such gravity on an individual who had been living lawfully in the State for any appreciable length of time to engage the operation of Article 8 ECHR. That was so even if that residence was precarious on the basis of a permission that was necessarily temporary and limited, and where the decision to refuse leave to remain or, indeed, to deport was no more than the enforcement and application of the limitation of that permission or its termination in accordance with its terms.

15. Separately, the Supreme Court held that it was only in exceptional circumstances and where there was something more than the inevitable disruption of removal from a country in which a person had lived that it could be argued that Article 8 ECHR rights prevailed or, more precisely, that interference with that private life was not justified by the State interest involved. That question ought to be addressed by considering a proportionality assessment and factoring in the precarious nature of the applicant’s residence in that balance. Further, the Supreme Court held that, where residence was precarious - and this has particular relevance to this case - 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 indeed deportation, necessarily involved, unless there was something more. It was sufficient that, without something more, 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. An individual’s circumstances seldom outweigh the rights of a contracting state. Further, the Supreme Court held that the weight to be accorded to private life established during precarious residence was less than what would be accorded to the same private life when established by a settled migrant or a citizen and, therefore, it was more readily outweighed by the legitimate interests of the State.

16. The other decision I will mention in the interests of brevity is the decision of Mr. Justice Bradley in S.M., which featured heavily in the arguments of both sides. This was selected as a test or a path-finder case to determine the outcome of other cases backing it up which involved the same legal issues. The central contention of the applicant in S.M. was that his case was similar to that decided by Mr. Justice Simons in A. (Albania), where the court quashed the section 49 decision of the Minister refusing leave to remain. This submission was rejected by Bradley J. as noted at para. 51 of the judgment in S.M. It seems to me the following paragraphs of the judgment of Bradley J. are particularly relevant: paras. 79, 80, 81, 82, 83 and 86. At para. 79, Bradley J. noted that the manner of the exceptionality of the ‘leave to remain’ jurisdiction and the pre-designated waiting system was further described by Chief Justice O’Donnell in his judgment in MK (Albania) 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. Then there’s a further quotation from O’Donnell C.J.

17. At para. 80, Bradley J. stated that: “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.” Bradley J. continued at para. 81 to state: “The assessment carried out on behalf of the Minister in this case… 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 … [2021] 2 I.R. 752… 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, in the view of Bradley J., were 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, where there was no engagement by the decision-maker and where there was rather simply a summary of the arguments that were made and a statement of a conclusion. Bradley J. also cited the decision of the Supreme Court in Connelly v. An Bord Pleanála and emphasised that the underlying objective is the attainment of fairness in the process.

18. At para. 83, Bradley J. stated that: “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.” And then at para. 86. Bradley J. stated the following: “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.” And then Bradley J. proceeded to set out why he considered that those requirements were satisfied in that particular applicant’s case in S.M.

19. Looking at the reasons given by the Minister in S.M., Bradley J. found that they were sufficient and that, crucially, they met the standards identified by the Supreme Court in the case law on reasons generally and in the more specific jurisprudence dealing with the section 49 process. I do not in any sense wish to cut across or take from the careful language and reasons identified by Mr. Justice Bradley’s assessment of the legal issues arising in that case, save to note the following conclusions reached by the court. At para. 109, Bradley J. paraphrased the observations of O’Donnell C.J. in MK (Albania) that, having regard to the facts of that 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 that had been given previously. In his conclusion at para. 110, Bradley J. observed that, generally, an individual’s circumstances seldom outweigh the rights of a contracting state and that this is particularly so when the jurisdiction is a review application in the circumstances of section 49 of the 2015 Act. From a general perspective again, it is an indicium 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 maintaining control of its borders and upholding the integrity of the immigration system.

20. At para. 114, Bradley J. stated that: “In Connelly v An Bord Pleanála … at paragraph (84) of his judgment, Clarke CJ. observed … 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).” Then at para. 116, Bradley J. concluded that for the reasons set out in his judgment, the ministerial decision in that case and the report of the review dated the 8th of October 2024 complied with the requirements of section 49 of the 2015 Act, the associated case law setting out the applicable principles of law and the requirement to give reasons and was, therefore, in the view of Bradley J., lawful.

21. It seems to me that that comprehensive judgment does have a strong bearing on the case I have to decide. The applicant acknowledged that it, effectively, addresses or, if you like, knocks out, ground one of his challenge relating to exceptionality which is not being pursued, but contends that ground two relating to the reasons side of his argument is unaffected or, at least, still has validity when one considers the actual reasons given in the decision under discussion here. Before returning to the impugned decision itself, I will mention one other theme that is evident from the case law, and that is the reality that, at this stage of the process, we are not in ‘rights-based’ terrain, but rather in the more uncertain waters of ministerial discretion. This is important because in cases such as the decision of the Supreme Court in D.E. (An Infant) v. Minister for Justice [2018] 3 IR 326, Chief Justice Clarke noted that such cases are 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. As noted by Clarke C.J., the Minister’s assessment in this regard involves the exercise of a very broad discretion. In my view, this legal reality also impacts the extent of the duty on the Minister to give reasons for his decisions.

d) Consideration of the respondent’s decision

22. For reasons of brevity, I do not propose to read out the full decision as it runs to some

22 pages and, it is fair to say, is detailed. The decision records the important consideration that the Minister’s assessment of the application occurred against the backdrop of the applicant being a failed asylum seeker because the IPO had found that he was not in need of international protection. The decision also notes that, according to the applicant’s statements, he arrived in the State on the 31st of July 2024 and, therefore, on that basis had been in the State, by the time of the decision, for no more than 13 months. Moreover, since his wife and children reside in Malawi, he has no family connections to the State. The applicant is an adult, obviously, and the particular vulnerability that he pressed was that he was bisexual and had, as a result, been victimised and assaulted in Malawi. The decision records his submission that he was a vulnerable person and a victim of community violence by reason of his sexuality. At the same time, the decision notes the IPAT finding that the tribunal rejected the core material assertion that the applicant identified as bisexual and had difficulties in Malawi due to his identified sexuality, including having suffered a serious assault. That finding is, of course, not under challenge in this application. In my view these various findings, as recorded in the impugned

decision, do impact the likelihood of the applicant’s application for leave to remain succeeding. In other words, putting things somewhat bluntly, the core facts underpinning the application for leave to remain were not the most promising from the applicant’s point of view. There were echoes of this reality in different sections of the 22 pages of the reasons given in the impugned

decision.

23. On page 11 of the decision, it is noted that the applicant’s legal representative submitted copies of various letters of reference and recommendation and copies of various documents in respect of his undertaking of further training and education in the State, amongst other submissions. The decision stated that while the applicant is residing in the State and has made connections in the community, it can be noted that these were retained whilst his status in the country was yet to be determined. This has been discussed in the previous section and the conclusions made are also applicable here. The decision continues: “However, while the applicant has made submissions with regards to humanitarian considerations, he has not demonstrated how returning to Malawi would result in a decline of his mental or physical health, or that he would not have access to the same services he [is] currently availing of in Ireland - education, religious freedom etc.” The decision indicates, in relation to the medical issues raised, that it should be noted that the applicant has also not indicated that he could not avail of treatment should he be returned to his country of origin. The decision-maker indicates that he analysed the humanitarian considerations of the application, and based upon that analysis had found that the common good in maintaining the integrity of the international protection and immigration system outweighed the features of the applicant’s case.

24. Turning to page 13 of the decision, the decision-maker considers the submission of the applicant with respect to the common good. It is this submission that the applicant contends was not properly engaged with. The submission is recorded in the following terms: “The applicant’s legal representatives have submitted that it is in the common good to grant the applicant permission to remain given the particular circumstances of his case. It is submitted that the applicant has been training as a healthcare worker, and it is submitted that the State is in need of healthcare workers and it would seem contrary to the common good to train and employ such a worker only to deport that worker.” The decision-maker then states the following at page 14: “It is noted that the Minister fully acknowledges the contribution the applicant has made to the Irish economy through his commitment to upskilling and his volunteering in the community since he came to the State. Those qualifications will be of benefit to him notwithstanding whether he is granted permission to remain in the State or not. However, the Minister is also responsible for maintaining the integrity of the immigration system and having weighed all matters in the balance, including the fact that the applicant has failed in his application for international protection, the Minister is of the considered view that the applicant’s family and personal life in the context of his humanitarian circumstances are not as strong as the interests of the State. In considering the applicant’s case, the Minister has interfered with the applicant’s rights no more than is necessary having regard to the State’s legitimate interests.

It is further noted that it is also in the interests of the common good to uphold the international protection and immigration-related procedures of the State.”

25. This is the key passage in the decision. However, it must be viewed in its proper context and ought not be viewed in isolation from the balance of the decision. It must also be viewed in light of the case law that I have referenced and particularly the onus that faces an applicant at this stage of the process to establish that “something more” has been placed onto the scales to outweigh the State’s interest in maintaining an orderly immigration system. As noted by the Supreme Court in MK (Albania), where an applicant’s residence is precarious, the State’s interest in maintaining an orderly immigration system will prevail and will justify the interference with private life that a refusal of leave to remain in the country or, indeed, deportation necessarily involves, unless there is something more placed in the balance.

26. In my view, judging the decision here against the standards identified by the Supreme Court in MK (Albania) and by my own colleagues in the High Court in subsequent cases, it is evident from the decision that the decision-maker is saying that the applicant’s point that it would be contrary to the common good to train and educate the applicant only to deport him, particularly in light of the shortage of healthcare workers in Ireland, has been taken into account but, in the view of the decision-maker, has been adjudged to come up short in that it has not been considered sufficient to discharge the pre-loaded onus of placing “something more” into the scales.

27. The decision expressly acknowledged the contribution the applicant has made to the Irish economy through his commitment to upskilling and his volunteering in the community since he arrived in Ireland. The decision notes that those qualifications will be of benefit to him, irrespective of whether he is granted permission to remain or not. The decision comments upon the short length of time the applicant has been in Ireland. The decision-maker expressly states, however, that the Minister also has responsibility to maintain the integrity of the immigration system and that having weighed all matters in the balance, which, in any fair assessment, in my view, must include the applicant’s common good points, the Minister is of the considered view that the applicant’s interests are not as advanced or not as strong as the interests of the State. The passage concludes with the statement that it is also in the interests of the common good to uphold the international protection and immigration-related procedures of the State.

e) Conclusion

28. In all of these circumstances and viewing matters in the round and in their proper context, I am not satisfied that the claimed frailty in the decision, as suggested by the applicant, is reasonable or realistic. I am satisfied that the decision-maker has addressed the applicant’s points concerning the common good and has weighed them in the balance against the competing interests of the State. It is not the case that the decision-maker has merely recited submissions without comment. I think counsel for the respondent, Mr. Fitzgerald, is correct in his submission that, viewing matters in the round and in context, the respondent has weighed and considered the applicant’s representations, finding that the applicant has not established the requisite “something more” as per MK (Albania) to outweigh the State’s interest in maintaining an orderly immigration system.

29. As the Supreme Court emphasised in Connelly v. An Bord Pleanála, and as noted in the leading case on the duty to give reasons, Rawson v. Minister for Defence [2012] IESC 26, the underlying objective at the end of the day is the attainment of fairness in the process. It has not been demonstrated here that the process was anything other than fair and transparent. The applicant was given an opportunity to participate in the process and make submissions. Moreover, the detailed nature of the decision under challenge, viewed in the context of the facts of the case, demonstrates that the decision-maker engaged with the representations made and evidently adjudged them to come up short of the mark. In my view, on a fair appraisal, the reasons why the application was refused are evident from the decision.

30. On the facts of this case, it seems to me that counsel for the applicant had very little to work with. Notwithstanding the considerable skill with which the limited materials and points available were deployed, I am not satisfied that the proceedings enjoy a reasonable prospect of success. In accordance with the decision of Phelan J. in G.L. v. IPAT [2025] IEHC 185, I am not satisfied that the applicant has identified reasonable or weighty grounds for the relief sought. Therefore, the substantial grounds test set out within the legislation for the granting of leave has not been met in my view. This conclusion obviates the necessity to consider the separate issue concerning the extension of time. In all the circumstances, therefore, I refuse the applicant’s application for leave.

Signed: Micheál O’Higgins

Appearances: For the applicant: Anthony Hanrahan SC and Luke Flanagan BL instructed by Siobhán Conlon Solicitors For the respondent: Patrick Fitzgerald BL instructed by the Chief State Solicitor’s Office