The Supreme Court has refused an appellant’s application to add a new argument to his appeal over the refusal of permission to remain in Ireland. The proposed argument would have challenged how the international protection system operated under the International Protection Act 2015.
The ruling, delivered by Mr Justice John MacMenamin on 2 February 2022, concerned the scope of the appeal, not its substantive outcome. The appeal itself arose from a High Court decision refusing judicial review of the Minister’s refusal of permission to remain under section 49(4) of the 2015 Act. The appellant had not challenged the separate decision refusing him refugee status and subsidiary protection under section 39.
The appellant sought permission to argue that, because the International Protection Office was not a statutory body, it could not qualify as a “Determining Authority” under the EU Procedures Directive. He argued that international protection officers should not perform both protection assessment and functions on behalf of the Minister concerning permission to remain.
The Minister opposed the application. The Minister accepted that the appellant could argue that section 49(4) required a separation of roles, including by reference to EU law, but said the proposed wider challenge was a different case from the one argued in the High Court and could require further evidence.
MacMenamin J concluded that the new argument would amount to a systemic challenge to the administration of the 2015 Act, including the section 39 process that the appellant had never challenged. The court said the relevant information about how the system operated had been available during the High Court proceedings. Allowing the new point, it held, could circumvent the strict 28-day limit for starting judicial review and require the Supreme Court to consider issues as a court of first instance.
The court refused the application. It did not decide the substantive appeal or determine whether the proposed interpretation of the Act or EU law was correct.