A majority of the Supreme Court has found that State appeals concerning Ireland’s former designation of the United Kingdom as a safe third country are not moot, according to a judgment delivered by Mr Justice Woulfe, who reached the opposite conclusion.
The cases concern KE, a Nigerian national, and FOM, an Iraqi national. Both had previously sought asylum in the UK before applying for international protection in Ireland. Their Irish applications became subject to procedures based on a 2020 order designating the UK as a safe third country.
In March 2024, the High Court found that Ireland’s statutory safe-third-country regime did not contain all protections required by EU law and quashed decisions affecting both applicants. The State appealed.
Before the Court of Appeal determined those appeals, legislation enacted in 2024 revoked the 2020 UK designation and amended the International Protection Act 2015 to add further safeguards. The Court of Appeal consequently held that the State appeals had become moot because any future decisions would have to be made under the amended legislation.
The State brought a further appeal to the Supreme Court, arguing that rulings made under the earlier regime could still have legal consequences and that important questions remained about Ireland’s obligations under EU asylum law.
Mr Justice Woulfe rejected that argument. He concluded that the Court of Appeal had been correct to regard both appeals as moot. In KE’s case, he found that the earlier inadmissibility decision could not retain legal force after revocation of the 2020 designation. In FOM’s case, he considered that a fresh non-refoulement assessment would be required before any removal to the UK.
However, his judgment records that the majority of the Supreme Court took a different view and found that the appeals were not moot. Mr Justice Woulfe therefore did not decide the separate question of whether the court should exercise discretion to hear an appeal even if moot.