High Court certifies point of law on balancing state immigration interests against individual rights in section 49 reviews.

APPROVED

AN ARD-CHÚIRT

THE HIGH COURT

[2026] IEHC 138

Record No. 2024/1386JR

BETWEEN/

S.M.

APPLICANT

-AND-

THE MINISTER FOR JUSTICE

RESPONDENT

(No.2)

JUDGMENT of Mr. Justice Conleth Bradley delivered on the 6th day of March 2026

INTRODUCTION

1. This is the Applicant’s application for leave to appeal from the judgment delivered in S.M. v Minister for Justice [2025] IEHC 629 (“the principal judgment”).

2. The principal judgment concerned a challenge to the exercise by the Minister for Justice (“the Minister”) of the residual statutory power in s. 49 of the International Protection Act 2015 (“the 2015 Act”) to review a previous ministerial decision taken pursuant to s. 49(4)(b) of the 2015 Act to refuse to give the Applicant permission to remain.

3. The principal judgment had determined that the ministerial decision of 9th October 2024, and the report of the review dated 8th October 2024, in the circumstances and facts which applied to the Applicant, had complied with the requirements of s. 49 of the 2015 Act, and the associated caselaw, including the requirement to give reasons and was, therefore, lawful.

4. Section 49 of the 2015 Act deals with permission to remain.

5. This application for judicial review was focused on the provisions of s. 49(7) of the 2015 Act and in particular, the 17-page report of the “Review under section 49(7) of the 2015 Act” dated 8th October 2014, which was enclosed under cover of letter dated 9th October 2024.

6. The principal judgment at para. 30 sets out the structure of that report of the s. 49(7) review, para. 31 refers to the documentation which had been submitted in support of the Applicant’s application for a review and para. 32 refers to the listing of the documentation in that report which had been submitted as part of the appeal to the IPAT, which included a copy of a SPIRASI Report dated 29th August 2023 which is referred to at paras 33 to 43 of the principal judgment.

7. The main thrust of the argument on behalf of the Applicant was that his case was ‘on all fours’ with the judgment in A (Albania) v Minister for Justice & Equality [2023] IEHC 692 (“A (Albania)”) where the court quashed the ‘section 49’ decision made in that case (para.

44 of the principal judgment).

8. In summary, the principal judgment distinguished the facts in the Applicant’s case from that which had applied in A (Albania). The principal judgment found (for example, at para. 81) that the facts of the Applicant’s case were different and distinct from the facts and

decision of the High Court (Simons J.) in A (Albania) where, in the circumstances and facts of that case, it was found that 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.

9. Likewise, the principal judgment distinguished the facts in the Applicant’s case from that which had applied in HK (Western Sahara) v The Minister for Justice & Equality [2022] IECA 141 (“HK (Western Sahara)”) where the assessment was solely through the prism of the ECHR.

10. The particular individual circumstances and facts of each case are, therefore, central considerations when assessing a ministerial decision taken pursuant to s. 49 of the 2015 Act and I will return to that later in this judgment.

THE STATUTORY APPEAL PROCESS

11. The appeal process is prescribed by s. 5(6) of the Illegal Immigrants (Trafficking) Act 2000 (“the 2000 Act”).

12. This requires a putative appellant to satisfy the cumulative requirements that a point (or question) of law arising from the principal judgment is of exceptional public importance and that it is desirable in the public interest that an appeal should be taken in respect of it:

“(6)(a) The determination of the High Court of an application for leave to apply for judicial review to which this section applies, or of an application for such judicial review, shall be final and no appeal shall lie from the decision of the High Court to the Supreme Court in either case except with the leave of the High Court which leave shall only be granted where the High Court certifies that its decision involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken to the Supreme Court.

(b) This subsection shall not apply to a determination of the High Court in so far as it involves a question as to the validity of any law having regard to the provisions of the Constitution.”

PRINCIPLES APPLICABLE TO THE APPLICATION FOR A CERTIFICATE

13. The applicable principles involved in a certificate application are well-settled.

14. In MAU v The Minister for Justice Equality and Law Reform (No.3) [2011] IEHC 59 at para. 6, the High Court (Hogan J.) set out the relevant principles as follows:

“First the decision must involve a point of law, so that the point of law in question arises directly from the judgment sought to be appealed. Second, the point of law must be one of exceptional public importance and this is a “significant additional requirement”: see Glancré Teo. v. An Bord Pleanála [2006] IEHC 205, per MacMenamin J. Third, it must be desirable in the public interest that the appeal be taken to the Supreme Court. The Oireachtas has clearly signalled via the 2000 Act that finality of litigation in the asylum area is in the public interest and, as MacMenamin

J. put it in Glancré Teo., the power to certify should be exercised “sparingly.” This suggests that the power to certify should be confined to those cases where it is desirable that, for example, some uncertainty in the law should be clarified for once and for all by the Supreme Court. Fourth, while the statutory requirements overlap to some degree, they are cumulative and these statutory requirements each call for individual consideration.”

15. As referred to in MAU, the oft-quoted judgment of the High Court (MacMenamin J.) in Glancré Teo v An Bord Pleanála [2006] IEHC 250 (“Glancré Teo”) is the seminal judgment which dealt with the (then) analogous provisions of the planning code.

16. In Glancré Teo MacMenamin J. stated as follows at para. 7:

“I am satisfied that a consideration of these authorities demonstrates that the following principles are applicable in the consideration of the issues herein.

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

2. The jurisdiction to certify such a case must be exercised sparingly.

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

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

5. The point of law must arise out of the decision of the High Court and not from discussion or consideration of a point of law during the hearing.

6. The requirements regarding “exceptional public importance” and “desirable in the public interest” are cumulative requirements which although they may overlap, to some extent require separate consideration by the court (Raiu).

7. The appropriate test is not simply whether the point of law transcends the individual facts of the case since such an interpretation would not take into account the use of the word “exceptional”.

8. Normal statutory rules of construction apply which mean inter

alia that “exceptional” must be given its normal meaning.

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

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

17. A number of statutory provisions prescribe a similar appellate process across a range of legislative scenarios and, in addition to requiring the cumulative requirements that a

decision must involve a point of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken to the Court of Appeal, some of these also contain an extra statutory criterion which provides that the Court of Appeal has jurisdiction to determine only the point of law certified and determined by the High Court and to make only such order as necessarily follows from that determination.

18. This extra statutory limitation is not present in s. 5(6) of the 2000 Act.

19. Thus, it could be said that s. 5(6) of the 2000 Act represents what was understood to be the position as per s. 29 of the Courts of Justice Act 1924. The provisions of s. 50(4)(f)(i) of the Planning and Development Act 2000 (which have now been revised and amended) and s. 5(6) of the 2000 Act were also drafted in similar terms to s. 29 of the 1924 Act. The case law which applied to the (then) s. 50(4)(f)(i) of the 2000 Act, such as in Glancré Teo, applies mutatis mutandis to s. 5(6) of the 2000 Act.

20. Therefore, on the basis of the statutory provisions which are currently applicable, once leave is certified by the High Court, it is open to an appellant to raise additional points which arise on the specific appeal: by analogy, see S.T.E. & Ors v the Minister for Justice and Equality & Ors [2019] IECA 332 (Whelan, McGovern and Baker JJ. (judgment of McGovern J.)); MAK v The Minister for Justice and Equality [2018] IESC 18 (per O’Donnell J. (as he then was) at paras 15 and 16; Clinton v An Bord Pleanála [2007] 1 I.R.

272 at 280 to 284 per Denham J. (as she then was); L. O’S v The Minister for Health and Children [2015] IESC 61 per Clarke J. (as he then was) at paras 3.4, 3.5, 3.12 and 3.13; People (Attorney General) v Giles [1974] I.R. 422; People (Director of Public Prosecutions) v Shaw [1982] I.R. 1; People (Director of Public Prosecutions) v Lynch [1982] I.R. 64; and People (Director of Public Prosecutions) v Kelly (No. 2) [1983] I.R. 1.

APPLICATION TO THE PRINCIPAL JUDGMENT

21. In accordance with s. 49(7) of the 2015 Act where the IPAT affirms a recommendation referred to in s. 39(3)(c) of the 2015 Act, a review of the decision made under s. 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 s. 49(4)(b) of the 2015 Act.

22. On 19th May 2025 the Applicant’s case was selected by the list judge 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.

23. At the hearing of this application for a certificate seeking leave to appeal, I was informed by counsel for the State that there are approximately 126 cases in a holding list and that in relation to some of those cases, applications had been made to seek hearing dates. It was submitted that between 90 and 95 cases may await a final determination in this case and share a similar factual matrix.

24. In response to the submissions of counsel for the Applicant that there were now two judgments of the High Court which were in conflict with each other, it was submitted by counsel on behalf of the State that this was not in fact the case and rather, reference was made to what was described as the practical difficulty where in some of these other cases, it was being contended that the facts mirrored those in A (Albania) where the High Court had held, on the facts of that case, that there was no engagement by the decision-maker and there was instead a summary of the arguments which were made and the statement of a

conclusion rather than being similar to the facts and circumstances which arise in the Applicant’s case.

25. The proposed point of law which is suggested by the Applicant now arises for certification

– namely, “when assessing an application for permission to remain under s.49 of the 2015 Act, may the application be granted in circumstances where there are “exceptional circumstances”” – does not, I believe, reflect the findings in the principal judgment and is also subtended on an incorrect contention that the principal judgment is in conflict with the judgment in A (Albania).

26. I have, rather, determined, for the following reasons, that a point of law of exceptional public importance arises from the principal judgment in relation to which it is desirable in the public interest that an appeal should be taken to the Court of Appeal and this point of law is set out at the end of this judgment

27. First, the particular individual circumstances and facts of each case are central considerations when assessing a ministerial decision taken pursuant to s. 49 of the 2015 Act.

28. As set out at para. 48 of the principal judgment, para. 30 sets out the structure of the report of the s. 49(7) review which was carried out in this case, para. 31 refers to the documentation which had been submitted in support of the Applicant’s application for a review and para. 32 refers to the listing of documentation in that report which had been submitted as part of the appeal to the IPAT, which included a copy of a SPIRASI Report dated 29th August 2023 which is inter alia addressed at paras 33 to 43 of the principal judgment.

29. The application made pursuant to s. 49(7) of the 2015 Act on behalf of the Applicant by his solicitors is also referred to at paras 47 to 49 and at paras 50 and 51 of the principal judgment it is stated that:

“(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.”

30. After setting out the applicable legal principles inter alia in DE (an infant) and MK (Albania), and the reasons jurisprudence in Connelly v An Bord Pleanála [2018] IESC 31, [2021] 2 I.R. 752 the principal judgment, at paras 87 to 109, then sets out how these were complied with on the facts and circumstances of the Applicant’s case by reference to the ‘section 49(7) review’ carried out in this case, with para. 99 for example, referring to ‘humanitarian considerations’ and paras 100 to 103 stating that:

“(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 [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.”

31. The principal judgment, at paras 104 and 105 references inter alia the provisions of s. 49(3) of the 2015 Act and at para. 106 further reference is made to the fact that the Article 8 private life and family life assessments book-end the ‘proportionality assessment’ (pp. 10/11 to 13 of the review report) which is carried out at paras 106 to 108, along with the observation made at para. 109 of the principal judgment that “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.”

32. Second, this application specifically addressed s. 49(3)(b) of the 2015 Act which states that in deciding whether to give an applicant a permission, the Minister shall have regard inter alia 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 humanitarian considerations and where I stated in the principal judgment (at paras 56 to 58) that this involved 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 against an individual, and in doing so I referred to the judgments of the Supreme Court in DE (an infant) and the Court of Appeal in HK (Western Sahara).

33. Insofar as the question proposed to be certified by the Applicant is concerned, and the reference therein to “exceptional circumstances”, the principal judgment, at para. 78, referred to O’Donnell C.J.’s reference at paras 24 to 26 of MK (Albania) to the judgment of the High Court (MacEochaidh J.) in CI v Minister for Justice, Equality and Law Reform [2014] IEHC 447 and the decisions of the ECtHR in Jeunesse v Netherlands (2015) 60 EHRR 17, at para. 108, and Pormes v The Netherlands CE:ECHR:2020:0728JUD002540214. Here O’Donnell C.J. inter alia held that ‘exceptionality’ was more of an important description and not a legal test and went on to describe the ‘pre-designated weighting exercise’ involved, observing, for example, that Article 8 ECHR did not confer any “right” to choose the country in which an individual wishes to live and that an applicant was required to “show something more” and instanced, non-exhaustively, some examples which may “tip the balance”, as follows:

“(25) … 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.

(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. 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 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” (emphasis/underlining contained in the principal judgment).

34. The principal judgment, at para. 79, then referred to the ‘exceptionality’ of the ‘leave to remain’ jurisdiction and that the pre-designated weighting system was further described by O’Donnell C.J. at para. 28 of 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, and observed that “[t]he 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.”

35. Third, in the principal judgment, I found that the facts of the Applicant’s case were different and distinct to the facts and context of those cases where there was no engagement, such as the circumstances in A (Albania) where it was held that there was no engagement by the

decision-maker and where there was, rather, a summary of the arguments that were made and a statement of a conclusion.

36. Accordingly, the principal judgment was not in conflict or in disagreement with the

decision in A (Albania) being a judgment of equal jurisdiction.

37. That this is so, is also clear from the following findings in the principal judgment:

(i) At para. 44 of the principal judgment, reference is made to the Applicant’s submissions which set out the propositions which could be extracted from the judgment in A (Albania). These are set out at para. 44(a) to (e) and para. 46 of the principal judgment states that “[w]hilst 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, or can be distinguished from, those in A (Albania) v Minister for Justice and Equality. It is that question which I now address.” This question is then addressed in the “Discussion and Decision” section of the principal judgment, which commences from para. 47 onwards;

(ii) At para. 51 of the principal judgment, it was stated that for the reasons set out in the judgment, I did not consider that the decision which was 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) or the High Court in A (Albania).

(iii) I found at para. 81 that the facts and circumstances of the Applicant’s case were different and distinct from those which applied in A (Albania) where there had been no engagement by the decision-maker and there was merely a summary of the arguments that were made and the statement of a conclusion and that, likewise, the facts and circumstances of the Applicant’s case were different and distinct from those which applied in HK (Western Sahara) where the assessment was solely through the prism of the ECHR.

(iv) In the ‘Conclusion’ section, the principal judgment inter alia stated at para. 111 that “[i]n this s. 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”.

(v) At para. 112 of the principal judgment reference was made to paras 16 and 17 of the judgment in A (Albania) and para. 113 quotes from extracts at paras 21 and 22 of the judgment in A (Albania).

(vi) The principal judgment at para. 114 refers to para. 32 of A (Albania), culminating in the finding at para. 115 that “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 HK (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””.

38. Fourth, the principal judgment, at para. 52, referred to the ‘reasons’ grounds and the Applicant’s arguments that the Minister failed to engage with the question of humanitarian considerations and pointed out that the characterisation made on behalf of the Applicant did not reflect the fact that the ECHR assessment carried out in the Applicant’s case was distinct and different from the other aspects of the assessment.

39. The principal judgment, for example, from paras 58 to 61 referred to extracts of the judgment of Donnelly J. in HK (Western Sahara) and, after doing so stated at para. 61 that “Unlike the situation in HK (Western Sahara) … 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.”

40. The principal judgment, from paras 62 to 65, referred inter alia to extracts of the judgment of the Supreme Court in DE (an infant) and the decision of the ECtHR in Paposhvili v Belgium (App. No. 41738/10) (13th December 262016), [2017] Imm AR 867 which was discussed by the UK Supreme Court in AM (Zimbabwe) (Appellant) v Secretary of State for the Home Department (Respondent) [2020] UKSC 17.

41. The principal judgment at para. 66 stated that in DE (an infant), Clarke C.J. had considered the similar residual ministerial discretion involved in the revocation of a deportation order. The principal judgment sets out the reference by Clarke C.J. in DE (an infant) (at para. 35), to the very broad discretion involved and that “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” noting at the same time that it may be the case that “a party also puts forward, in the course of the same representations, an argument which does touch on a legal entitlement”.

42. The principal judgment at para. 70 stated that the entitlement of the Applicant, insofar as his claim pursuant to s. 49(3)(b) of the 2015 Act was concerned (i.e., in relation to humanitarian considerations) was that of making representations to the Minister as to the basis and circumstances in which he (the Minister) might be persuaded to grant humanitarian leave.

43. In this regard the principal judgment stated as follows at paras 71 to 75:

“(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 supranational. 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.”

CERTIFIED POINT OF LAW

44. Accordingly, having regard to the aforesaid, I shall certify the following question as meeting the requirements pursuant to s. 5(6)(a) of the 2000 Act as involving a point of law of exceptional public importance and in relation to which it is desirable in the public interest that an appeal should be taken to the Court of Appeal:

In the exercise of ministerial discretion carried out pursuant to s. 49(7) of the 2015 Act, including in particular s. 49(3)(b) of the 2015 Act dealing with general humanitarian considerations, is the Minister entitled to weigh, as part of the balancing exercise carried out, the State’s interest in maintaining the integrity of an orderly system of international protection, asylum and immigration, on the one hand, and the other facts and circumstances which apply specifically to the individual who has made an application for a review, in assessing whether such factors, facts and circumstances amount to ‘something more’ than inter alia private rights, including (but not limited

to) residence etc., such further other rights and other non-rights which apply to that individual, on the other hand?

CONLETH BRADLEY

6th March 2026