A Supreme Court judge has concluded that appeals over Ireland's system for returning international protection applicants to the UK remain legally live despite changes made to the law in 2024.
The proceedings concern two anonymised applicants, KE and FOM. Both challenged decisions made under legislation that allowed the UK, following Brexit, to be designated a “safe third country”. That mechanism could lead to an asylum application being declared inadmissible and, subject to safeguards, the applicant being returned to the UK.
The High Court found that the system did not contain the full safeguards required by EU law, including protection against certain forms of “serious harm”. It quashed decisions affecting KE and FOM and made declarations concerning Ireland's EU obligations.
Before the appeals were determined, the Oireachtas amended the International Protection Act 2015 in 2024. The amendments introduced additional serious-harm protections and revoked the earlier order designating the UK as a safe third country. The Court of Appeal subsequently treated the appeals as moot.
In her February 18, 2026 judgment, Ms Justice Iseult Donnelly disagreed with that conclusion.
She held that a live dispute remains over whether Ireland was legally obliged under EU law to apply safeguards contained in the Recast Procedures Directive, despite Ireland not having opted into that Directive. The source of the obligation matters, she said, because EU and domestic law can have different legal consequences.
She also considered that repeal of the earlier UK designation did not automatically erase decisions already made under it. The effect of repeal had to be considered under the Interpretation Act 2005.
Ms Justice Donnelly would therefore allow the appeal on mootness and remit the substantive appeals and cross-appeals to the Court of Appeal.
This judgment does not decide whether the original UK designation or the challenged asylum decisions were lawful. Nor, standing alone, does it establish the final majority position of the Supreme Court.