The Supreme Court has dismissed ASA’s appeal against the refusal of permission to remain in Ireland, holding that the International Protection Act 2015 did not prevent an officer of the Minister for Justice from making that decision on the Minister’s behalf.
ASA, a Nigerian national, challenged the refusal under section 49 of the Act. He argued that officials involved in international protection decisions could face a conflict of roles if they also considered leave-to-remain applications. The High Court had dismissed his judicial review challenge, and the Supreme Court affirmed that judgment.
The Court said the appeal was confined to the section 49 decision. ASA had not challenged the international protection process used in his case, and the Court’s February 2022 ruling had refused an attempt to broaden the appeal to address whether that process complied with EU law. The Court said it could not act as a court of first instance on issues that had not been examined through evidence in the High Court.
The judgment explained that the Act sets different criteria and processes for international protection and permission to remain. International protection officers must act independently when performing their statutory functions. Leave-to-remain decisions, by contrast, are made by the Minister or an officer acting in the Minister’s name under the Carltona principle.
The Court found no express or implied provision in the Act requiring the Minister to make leave-to-remain decisions personally, or barring an official who is also appointed as an international protection officer from acting for the Minister in a separate decision. It noted that section 74 envisages that an international protection officer may also be an officer of the Minister, while requiring independence when that person performs IPO functions.
The High Court’s evidence showed that separate units and different officials handled international protection and permission-to-remain decisions. The Supreme Court found no evidence that the same person performed both functions in ASA’s case, or that the decision was tainted by a conflict. It stressed that an official should not make both decisions in the same case, and said evidence of an actual conflict could lead to a different result.
The Court concluded that the Minister’s officer was not shown to have acted unlawfully or without authority in refusing permission to remain. It dismissed the appeal. The decision did not determine any challenge to ASA’s international protection assessment.