The Court of Appeal has quashed a decision refusing permission to remain in Ireland to an anonymised Western Sahara national, finding that the review did not show humanitarian considerations had been assessed beyond whether his rights under the European Convention on Human Rights (ECHR) would be breached.
The judgment, delivered electronically on 24 June 2022 by Ms Justice Donnelly, with whom Justices Murray and Ní Raifeartaigh agreed, allowed the appeal on that ground. It rejected the appellant’s other grounds, including challenges concerning an interview report, an addendum to that report and the prohibition on refoulement. The court did not itself grant permission to remain.
The appellant had sought international protection after arriving in Ireland in 2015. His claims for refugee status and subsidiary protection were refused, and the Immigration Protection Appeals Tribunal (IPAT) affirmed the refusal. The Minister for Justice also refused permission to remain. After receiving further representations, including a medico-legal report from Spirasi, the Minister reviewed that decision under section 49(7) of the International Protection Act 2015 and again refused permission.
The Court of Appeal held that the section 49(7) review had considered the Spirasi report in relation to Articles 3 and 8 of the ECHR. But the statutory humanitarian assessment was broader than deciding whether those rights would be violated. The report described signs consistent with the appellant’s account of maltreatment, psychological effects of trauma and a recommendation for specialist therapy. The court found that the review did not make clear that these matters had been considered as humanitarian grounds in their own right.
The court also pointed to submissions that the appellant had been living in Ireland for almost four years and had become integrated into Irish society. Those matters appeared in the review’s discussion of Article 8, but the judgment found no indication that his personal circumstances and mental health had been assessed separately as possible humanitarian reasons to grant permission to remain. The reviewer might have concluded those considerations were insufficient, the court said, but the review did not show that they had been weighed on that broader basis.
The appellant also argued that an interview report had been incomplete and that a later addendum was prepared without notice to him. The court held that attempts to challenge the original report and earlier decisions were significantly out of time, with no good reason for the delay. It rejected the addendum challenge, finding no demonstrated prejudice or breach of fair procedures. It also rejected the refoulement ground: the appellant had made no specific submission on the issue in his review request, and the Minister had considered the country information and concluded the prohibition was not breached.
The court ordered certiorari of the section 49(7) review on the humanitarian-considerations ground. The judgment left the question of costs open for agreement between the parties or a later hearing.