High Court dismisses judicial review where subsidiary protection was granted despite a Tribunal error on refugee status refusal.

THE HIGH COURT

JUDICIAL REVIEW

2024 No. 702 JR

[2026] IEHC 344

BETWEEN:

I. D. (SOMALIA)

APPLICANT

AND

THE INTERNATIONAL PROTECTION APPEALS TRIBUNAL AND THE

MINISTER FOR JUSTICE, HOME AFFAIRS AND MIGRATION

RESPONDENTS

JUDGMENT of Ms. Justice Mary Rose Gearty delivered on 12th June, 2026

1. Introduction

1.1 This Applicant sought international protection claiming that his opposition to Al-Shabaab made him a target for political violence and led to an attack on his workplace. He was refused refugee status but granted subsidiary protection.

1.2 Two entirely separate errors were made in this case, but the combination does not require a rehearing of his application. The first, mistakenly refusing him protection, was corrected by excising any reference to the error from the final

decision. The second, a failure to send supporting documentation in time, was not an error on the part of the Respondent Minister [the Minister] and cannot be corrected by the Court. The decision made by the Tribunal, and as corrected, was supported by evidence and was not irrational.

2. Summary of Decision and the Applicant’s Arguments

2.1 The Applicant applied for protection pursuant to the International Protection Act of 2015 and the International Protection Office [IPO] recommended that he be granted subsidiary protection but refused refugee status.

2.2 The Applicant appealed this refusal and, on 24th April 2024, the International Protection Appeals Tribunal [the Tribunal] mistakenly refused to grant him subsidiary protection (an issue which was not before the Tribunal) and upheld the refusal of refugee status. That decision, therefore, was clearly incorrect. The Minister then amended the decision by striking out certain paragraphs and by adding an addendum confirming that he was granted subsidiary protection. The Applicant seeks an order of certiorari quashing the entire decision.

2.3 In this regard, the Applicant points to references to the refusal of subsidiary protection which remain in the body of the document even post-amendment. The purpose of the addendum and the striking out of certain passages makes this a very weak argument, however. The document, as amended, is entirely clear: refugee status is refused, and the granting of subsidiary protection is confirmed. There is a further argument that the whole decision is tainted by this obvious error and requires reconsideration by a decision maker who has not mistakenly concluded that the IPO had refused subsidiary protection.

2.4 The Applicant also seeks a declaration that the Tribunal erred in failing to consider additional material documentation. He submits that the Tribunal has authority, pursuant to Regulation 10 of the International Protection Act 2015 (Procedures and Periods for Appeals) Regulations 2017 [the 2017 Regulations] to reopen a decision where a substantial error has had a material effect on that

decision. The Tribunal specifically asked for certain supporting

documentation. The Applicant offered to provide it within a week. While he sent the material to his solicitor within that timeframe, his solicitor did not forward it to the Tribunal. The Applicant submits that the material should have been considered when the decision was reopened for correction.

2.5 The decision to grant subsidiary protection is a significant one but not dispositive of the case. While the Applicant has been granted protection, his status is not equivalent to that of a refugee albeit he now receives substantially the same rights of integration in terms of employment and healthcare, for instance. The two categories are comparable but distinct: refugees’ right to remain is linked directly with persecution and they often achieve naturalisation or reunification rights more easily than those granted subsidiary protection.

3. Chronology, Procedural History and Submissions

3.1 The Applicant is a Somali national who applied for international protection within a month of his arrival in the State. The Applicant claimed a well-founded fear of persecution in Somalia on the basis that he had been targeted by Al- Shabaab, a group of insurgents, for social and political reasons.

3.2 The International Protection Office Report recommended the refusal of refugee status. It was recommended that the Applicant be granted subsidiary protection however, as there were substantial grounds for believing that he would face a real risk of serious harm if he returned to Somalia, due to indiscriminate violence in a situation of internal armed conflict there. The Applicant appealed against the refusal of refugee status. The Minister subsequently granted subsidiary protection to the Applicant.

3.3 At the appeal hearing, on 12th December 2023, the Tribunal heard the Applicant’s description of the violence in Somalia and, in particular, heard an allegation that the Applicant’s workplace had been bombed by Al-Shabaab in a targeted act of political violence. The Tribunal requested further support for this claim, and the Applicant undertook to supply confirmation within a week. On 19th December 2023, the Applicant provided his solicitor with letters from his employer and from a member of the Somali Federal Parliament confirming that a bomb-blast had occurred. The letters were not forwarded to the Tribunal.

3.4 The Tribunal decision issued on 22nd April 2024, erroneously stating that the Applicant had been refused both refugee status and subsidiary protection. Further, the Tribunal discussed the basis for the Applicant’s fear of persecution and noted, in respect of his evidence supporting claims of the bomb attack: “The Tribunal in assessment of these photographs notes there is no date imprinted thereon and there is no identifiable or identifying mark/logo/ identifier thereon. The Tribunal notes that that the Tribunal Member sought at the end of the hearing a letter from the Appellant’s former employer confirming the occurrence of the bomb blast. The Tribunal notes that this has not been furnished to it and nor was the reason as to its nonavailability advised to the Tribunal.” The Tribunal found that the Applicant had not established a well-founded fear of persecution.

3.5 The Applicant’s solicitors wrote to the Tribunal seeking a withdrawal of the

decision on two grounds: A. that there was an error in the assessment and refusal of subsidiary protection where it had already been recommended by the IPO and granted by the Minister; and B. “in the interests of justice” where the Applicant’s legal representative had failed to forward letters supplied by the Applicant, confirming that his office was attacked by Al-Shabaab.

3.6 On 2nd May 2024, the addendum issued correcting the error regarding subsidiary protection, i.e. Ground A. The Tribunal accepted that the original finding in this regard was legally void, as it concerned a matter not properly before it, and apologised for the error. However, the Tribunal refused to accede to the request on Ground B., stating it had limited power to amend errors and did not have the power to withdraw a decision. The Tribunal referred to Regulation 10 of the 2017 Regulations which facilitates the amendment of errors, concluding that it did not allow the Tribunal to reconsider substantive matters nor did it permit the re-opening of an appeal to consider new evidence.

3.7 The Applicant argues that the decision was ultra vires and must be quashed. This submission conflicts with the Applicant’s argument that Regulation 10 is sufficient to correct both errors, however, so each must be considered in turn.

3.8 The Applicant submits that the addendum renders the decision ultra vires as it is no longer clear what decision has been made. This is simply incorrect. While there are references to the incorrect decision, even in the amended decision, it is very clear that the previous conclusion in respect of subsidiary protection was incorrect and any substantive decision in that regard has been excised. Read with the Addendum, the amended decision is not ambiguous.

3.9 The Applicant submits that, having identified this error, the Tribunal should have quashed the decision itself. The Applicant seeks to distinguish N.D. (Albania) v. IPAT [2020] IEHC 451, in which the High Court confirmed that Regulation 10 does not permit a re-hearing, on the basis that N.D. concerned new evidence rather than, as this Applicant characterises it, a “fundamental jurisdictional error.” He relies on Diouf v. Ministre du Travai de l’Emploi et de l’Immigration (Case C-69/10) submitting that the right to an effective remedy requires a remedy that is capable of examining both the facts and the law.

3.10 Finally, the Applicant submits that the Respondents are selective and inconsistent, allowing one error to be corrected while refusing to reopen the appeal to allow new evidence to be adduced. He submits that if Regulation 10 cannot be applied to this case, it is incompatible with EU law.

4. Correcting Errors and Re-opening Cases

4.1 Regulation 10(1) of the 2017 Regulations states: “The Tribunal may correct any error or omission in any decision made by the Tribunal under the Act of 2015.” This is a wide and seemingly unrestricted power but on its clear, literal terms, the power is limited to correcting errors or omissions and does not extend to rehearings or re-opening cases to adduce new evidence.

4.2 The Applicant submits that the Tribunal adopted an unduly narrow interpretation of its powers under Regulation 10 and that in circumstances where the appeal had been reopened for correction by addendum, the Tribunal should have considered the additional material documentation. Firstly, it is a mistake to refer to events leading to the addendum as “reopening” the appeal. The sole purpose of the addendum was to remove any reference to a mistaken refusal of subsidiary protection and to confirm that this had been granted. There was no question of hearing further evidence and no reconsideration of the substance of the case as none was necessary. An error was made and was rectified: references to refusing subsidiary protection were removed.

4.3 The Tribunal, in response to the Applicant’s claim, noted that it has “limited power to amend or correct its own errors or omissions” but “does not have the power to withdraw its decisions”. The Minister submits that Regulation 10 allows for the correction of an error such as that in Ground A., rectified in the addendum, but does not allow the Tribunal to reconsider substantive matters. The Minister submits that the Tribunal was functus officio in respect of the appeal and was "precluded by law" from considering the additional material documentation.

4.4 The Minister relies on Humphreys J. in N.D. (Albania) v. IPAT [2020] IEHC 451: “Firstly, as regards the applicants’ request for a rehearing of their appeal, it is true that reg. 10 of the International Protection Act 2015 (Procedures and Periods for Appeals) Regulations 2017 (S.I. No. 116 of 2017) allows for correction of errors in IPAT decisions. However, that does not give any authority to set aside a decision in full and to hold a rehearing after the decision has been made; nor is there any other legal authority for such a course. The request to the IPAT to rehear the matter was totally misconceived.”

4.5 The Applicant cites no authority for the proposition that the Tribunal could have set aside its own decision but invites this Court to discard the remedy offered under Regulation 10 and, instead of allowing the correction of an obvious error, to quash the decision in its entirety allowing a fresh application for refugee status and subsidiary protection, and allowing the Applicant to adduce late evidence. This would be contrary to the decision in N.D. There is no provision which permits a re-hearing to adduce late evidence. Nor is there a provision permitting a Tribunal to quash its own ultra vires decision.

4.6 The statutory regime under which the Minister and the Tribunal operate can be contrasted with other legislation, such as s. 301(1) (a) of the Social Welfare Consolidation Act 2005, which, as the Minister submits, expressly provides that a deciding officer may revise a decision if it appears to him that the decision was erroneous “in light of new evidence or of new facts”.

4.7 The Applicant’s argument conflates two separate errors and two separate remedies to conclude with a submission for which there is no precedent. The error in refusing subsidiary protection was a significant, but an obvious error. The Tribunal could not stand over a decision that contradicted the IPO recommendation, that was already the subject of a positive decision by the Minister and that could easily be remedied under Regulation 10 by simply striking out the relevant references and confirming the status of the Applicant. This is the essence of the remedy applied: a correction, not a rehearing.

4.8 The submission that the decision not to allow refugee status was tainted by this error is difficult to accept. While it is odd that such a comprehensive decision missed a significant and well supported finding, namely, that the violence in Somalia and the Applicant’s evidence generally supported the finding in respect of subsidiary protection, nonetheless this was easily corrected.

4.9 The decision was detailed and rational insofar as it dealt with the refusal to grant refugee status. Section 2(1) of the International Protection Act 2015 separates the two processes and defines a person eligible for subsidiary protection as one who “does not qualify as a refugee”. It is inevitable that such an applicant has been refused refugee status, therefore. The submission that the error tainted the decision in respect of refugee status is not persuasive as the two decisions require different legal tests and are two separate processes.

5. Effective Remedies: Additional Evidence and Time Limits

5.1 The Applicant submits that the impugned decision breached his right to an effective remedy under Articles 32 and 39 of Council Directive 2005/85/EC based on the failure of the Tribunal to reopen the appeal to allow further documentation to be considered. The Applicant claims that the Minister’s reliance on ND (Albania) v. IPAT [2020] IEHC 451, as authority for its inability to revisit its decision, is in conflict with Articles 32 and 39. He relies on M.M. v. Minister for Justice, Equality and Law Reform (Case C-277/11) to argue that the right to an effective remedy requires that procedures be sufficiently flexible to allow applicants to make their case. However, this principle does not require an open-ended process allowing new evidence to be submitted at any time.

5.2 Neither Article imposes an obligation to make provision for the reopening of appeals after they have been determined: Article 32 applies to subsequent applications, as distinct from the re-opening of a finalised application and Article 39 is not breached by imposing time limits.

5.3 Article 32 is headed ‘Subsequent applications’ and reads:

1. Where a person who has applied for asylum in a Member State makes further representations or a subsequent application in the same Member State, that Member State may examine these further representations or the elements of the subsequent application in the framework of the examination of the previous application or in the framework of the examination of the decision under review or appeal, insofar as the competent authorities can take into account and consider all the elements underlying the further representations or subsequent application within this framework.

2. Moreover, Member States may apply a specific procedure as referred to in paragraph 3, where a person makes a subsequent application for asylum:

(a) after his/her previous application has been withdrawn or abandoned by virtue of Articles 19 or 20;

(b) after a decision has been taken on the previous application. Member States may also decide to apply this procedure only after a final decision has been taken.

3. A subsequent application for asylum shall be subject first to a preliminary examination as to whether, after the withdrawal of the previous application or after the decision referred to in paragraph 2(b) of this Article on this application has been reached, new elements or findings relating to the examination of whether he/she qualifies as a refugee by virtue of Directive 2004/83/EC have arisen or have been presented by the applicant.

4. If, following the preliminary examination referred to in paragraph 3 of this Article, new elements or findings arise or are presented by the applicant which significantly add to the likelihood of the applicant qualifying as a refugee by virtue of Directive 2004/83/EC, the application shall be further examined in conformity with Chapter II.

5. Member States may, in accordance with national legislation, further examine a subsequent application where there are other reasons why a procedure has to be re-opened.

6. Member States may decide to further examine the application only if the applicant concerned was, through no fault of his/her own, incapable of asserting the situations set forth in paragraphs 3, 4 and of this Article in the previous procedure, in particular by exercising his/her right to an effective remedy pursuant to Article 39.

7. The procedure referred to in this Article may also be applicable in the case of a dependant who lodges an application after he/she has, in accordance with Article 6(3), consented to have his/her case be part of an application made on his/her behalf. In this case the preliminary examination referred to in paragraph

3 of this Article will consist of examining whether there are facts relating to the dependant’s situation which justify a separate application.

5.4 The Article is set out in full as it makes the context of this entitlement clear. The fact that, under paragraph 1, a Member State may examine further representations falls well short of creating a right on the part of applicants to have any further representations whatsoever considered by the Minister. The reference must be read in the context in which it appears, namely, a provision regarding subsequent applications which are envisaged after a claim has been abandoned or withdrawn, or where new elements or findings relating to the examination of whether he/she qualifies as a refugee have arisen.

5.5 In this case, there were no new elements arising. Here, the evidence in question was always in the possession or procurement of the Applicant, he was given time to produce it, his lawyers did not forward the material, nor did they explain why it was not provided. In the circumstances, the Tribunal was entitled to presume there was no such material: it had been promised and never arrived. This created a credibility problem for the Applicant.

5.6 Article 39 refers to ‘the right to an effective remedy’ and it reads:

1. Member States “shall ensure that applicants for asylum have the right to an effective remedy before a court or tribunal, against the following:

(a) a decision taken on their application for asylum, including a decision:

(i) to consider an application inadmissible pursuant to Article

25(2),

(ii) taken at the border or in the transit zones of a Member State as described in Article 35(1),

(iii) not to conduct an examination pursuant to Article 36;

(b) a refusal to re-open the examination of an application after its discontinuation pursuant to Articles 19 and 20;

(c) a decision not to further examine the subsequent application pursuant to Articles 32 and 34;

(d) a decision refusing entry within the framework of the procedures provided for under Article 35(2);

(e) a decision to withdraw of refugee status pursuant to Article 38.

2. Member States shall provide for time-limits and other necessary rules for the applicant to exercise his/her right to an effective remedy pursuant to paragraph 1.

3. Member States shall, where appropriate, provide for rules in accordance with their international obligations dealing with:

(a) the question of whether the remedy pursuant to paragraph 1 shall have the effect of allowing applicants to remain in the Member State concerned pending its outcome;

(b) the possibility of legal remedy or protective measures where the remedy pursuant to paragraph 1 does not have the effect of allowing applicants to remain in the Member State concerned pending its outcome. Member States may also provide for an ex officio remedy; and

(c) the grounds for challenging a decision under Article 25(2)(c) in accordance with the methodology applied under Article 27(2)(b) and (c).

4. Member States may lay down time-limits for the court or tribunal pursuant to paragraph 1 to examine the decision of the determining authority.

5. Where an applicant has been granted a status which offers the same rights and benefits under national and Community law as the refugee status by virtue of Directive 2004/83/EC, the applicant may be considered as having an effective remedy where a court or tribunal decides that the remedy pursuant to paragraph 1 is inadmissible or unlikely to succeed on the basis of insufficient interest on the part of the applicant in maintaining the proceedings.

6. Member States may also lay down in national legislation the conditions under which it can be assumed that an applicant has implicitly withdrawn or abandoned his/her remedy pursuant to paragraph 1, together with the rules on the procedure to be followed.

5.7 Again, the entire Article is set out in order to provide a context in which to interpret the right. Immediately, at para. 2, this right to a remedy is constrained by the entitlement of the Member State to apply and enforce “necessary rules.” The only rule singled out and named, presumably because it is ubiquitous and necessary in every such system of asylum law, is that States are not just entitled to, but are required to impose time limits. The reason for this is obvious: no system would function if there was no time limit imposed and no deadline after which applications or evidence would not be accepted. Such a process would indeed be open-ended, as the Minister submits, which is not required under the Regulations nor would it be effective, for obvious reasons: cases would never end as disappointed applicants could perpetually add new evidence.

5.8 There is a requirement that the State provide an effective remedy for applicants but there is no requirement that it be effective no matter what delays occur during the process. The converse is the case: the remedy must be effective and must also operate within time limits identified by the Member States. In line with Diouf, this remedy provides for an examination of the facts and the law.

5.9 The material confirming the bombing, which might have been relevant to a question of credibility, or even persecution, was requested by the Tribunal and promised by the Applicant but was never forwarded to the Tribunal. In those circumstances, there is no authority for the proposition that the Tribunal was required to reopen the case. Nor is that decision contrary to Articles 32 or 39. The State has provided an effective remedy, subject to time limits which were not observed. As set out above, Regulation 10 allowed the Minister to correct an error, but this did not amount to a reopening of the case. The conflation of the two remedies is just that and cannot merge to amount to a finding that because one error had to be corrected, the other should require a rehearing of the case. The two are distinct events, governed by different rules.

6. Irrationality: Missing Evidence and the Function of the Tribunal

6.1 The Applicant argues that, even if these errors do not vitiate the impugned

decision, it was irrational. This argument is based on well-established facts in the Country-of-Origin information to the effect that the political situation in Somalia is volatile and dangerous, and the accepted facts in respect of the Applicant and his work, which brought him to the attention of Al-Shabaab.

6.2 The Tribunal accepted that the Applicant was a native of Somalia and that he had held a position which made him a potential target. The problem for the Applicant is that he made a very specific claim, that his workplace was bombed, and told the Tribunal that he could substantiate that claim but did not do so.

6.3 The Tribunal, correctly, noted the UNHCR handbook guidance in respect of the benefit of the doubt which reads: “The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant’s general credibility. The applicant’s statements must be coherent and plausible and must not run counter to generally known facts.”

6.4 The Tribunal went on to discuss two letters of reference given to the Applicant from named persons, at least one of whom is an elected representative in Somalia and the other is a former employer, and the Tribunal noted that neither of the authors gave details about the claimed persecution of the Applicant, nor of a dramatic bomb attack. Both letters were written after the Applicant entered the international protection process in Ireland and the Tribunal was “concerned as to why these two individuals who the Appellant claims are very familiar with his circumstances would not have addressed these issues in their letters.” As noted above, the Applicant offered to supply confirmation of the bomb, but the relevant letters were never forwarded to the Tribunal. This is not an error on the part of the Tribunal nor on the part of the Minister.

6.5 The decision concludes: “…the Tribunal herein, on the balance of probabilities finds that all of the available evidence has not been obtained, and the examiner, the Tribunal herein is not satisfied as to the Appellant’s general credibility and that the Appellant’s statements are not coherent and plausible, and that they do run counter to generally known facts. For these reasons, the Tribunal finds in assessing all before it on the balance of probabilities that the Appellant’s claims are not credible and they are rejected. The Tribunal finds that the Appellant is not entitled to the benefit of the doubt.”

6.6 There is no irrationality in this decision. The general danger and unrest in the country, coupled with the Applicant’s particular work, substantiated a finding that he was entitled to subsidiary protection. His very specific claims, about a bomb and more individually targeted persecution, were claims that he positively asserted his employer would substantiate and he undertook to provide further evidence within a week. When that evidence was not forthcoming, the Tribunal was entitled to take the view that this undermined the Applicant’s credibility in respect of those claims and to reach the conclusion that his evidence fell short of establishing a well-founded fear of persecution.

6.7 In M.E. v. R.A.T. [2008] IEHC 192 Birmingham J. noted: “[27] …the assessment of whether a particular piece of evidence is of probative value, or the extent to which it is of probative value, is quintessentially a matter for the Tribunal Member.” Equally, the Tribunal is entitled to view an evidential gap as probative, or even dispositive.

6.8 This decision does not meet the relatively high bar of irrationality set out in in cases such as Meadows v. Minister for Justice, [2010] 2 I.R. 701.

7. Conclusions

7.1 The Applicant has not established that he is entitled to a decision quashing the refusal to grant him refugee status. The failure to submit evidence in time is not an error on the part of the Tribunal and does not require a re-hearing.

7.2 The Applicant has been granted subsidiary protection in an unambiguous correction of the initial, erroneous decision.

7.3 My preliminary view is that the Respondents are entitled to costs. If the parties wish to address the Court in this regard contact the Registrar within 14 days.

Appearances

Mr. Eamonn Dornan B.L. for the Applicant instructed by Daly Lynch Crowe & Morris Solicitors Mr. David Fennelly S.C. with Mr. Hugh Guidera B.L. for the Respondents instructed by the Chief State Solicitor’s Office