The Supreme Court dismissed an appeal by K.J.M., a man from the Democratic Republic of Congo, who argued that he could not be removed from Ireland while his request to re-enter the international protection process was being considered.
The judgment, delivered by Mr Justice William McKechnie on 31 March 2020, concerned a request under section 22 of the International Protection Act 2015. An international protection officer had recommended refusing consent. K.J.M. appealed that recommendation to the International Protection Appeals Tribunal, and the appeal was pending when he brought judicial review proceedings.
The High Court had dismissed his case and discharged an injunction temporarily preventing his removal. The Supreme Court considered whether the officer’s recommendation counted as a first-instance decision under the EU Procedures Directive, after which the Directive’s right to remain no longer applied.
The Court held that it did. It said the officer’s recommendation affected the applicant’s rights, while the Minister’s role was to give effect to the recommendation and did not involve an independent substantive decision. The Tribunal’s role arose on appeal, making it part of the appellate stage rather than the first-instance process. The right to remain therefore ended when the officer made the recommendation, even though K.J.M.’s appeal was still pending.
The Court also addressed whether the proceedings amounted to a collateral attack on the deportation order, which would engage procedural limits under section 5 of the Illegal Immigrants (Trafficking) Act 2000. It held that this issue did not strictly arise once it found there was no continuing right to remain under the Directive or the 2015 Act. It gave no concluded ruling on that issue in this appeal.
A separate issue concerned whether a court could refuse judicial review relief because of abusive conduct. The Court said such a power existed, but should be used sparingly and only where the conduct was serious and significant in the context of the asylum system. It did not need to reach a separate conclusion on whether that standard was met in K.J.M.’s case.
The appeal was dismissed. The Court’s conclusion addressed the claimed right to remain while the re-entry request was processed; it did not determine the pending appeal to the Tribunal or make a new deportation order.