Judgment: 2022-07-18 · Court archive

Supreme Court restores right to seek late protection appeals

The Court quashed IPAT’s decisions refusing to consider two late appeal applications, but did not decide whether either appeal should be allowed.

The Supreme Court ·

Who, what, where, when and why

Who
  • A (Appellant)
  • B (Appellant)
  • International Protection Appeals Tribunal
  • John MacMenamin (Judge)
What

The Court quashed IPAT’s decisions refusing to consider two late appeal applications, but did not decide whether either appeal should be allowed.

Where

Places mentioned in the report

  • Brazil
When

Judgment:

Why

Reasons reported in the judgment

The Court held that the International Protection Act 2015 did not expressly bar a person from applying for an extension of time after a ministerial refusal under section 47(5). Although the Act provides that a person may cease to be an “applicant”, the Supreme Court found no words making that status a condition for seeking an extension under the appeal regulations.

The Supreme Court has ruled that two people whose international protection applications were refused may apply to extend the time for appealing, even though the Minister had already refused their applications and made deportation orders.

The linked appeals concerned A, from Georgia, and B, from Brazil. Both had received negative recommendations from international protection officers and missed the 15-working-day deadline to appeal to the International Protection Appeals Tribunal (IPAT). The Minister later refused to grant either form of international protection and made deportation orders. Solicitors then asked IPAT to extend the appeal deadlines.

IPAT declined to consider the requests, saying the Minister’s decisions meant the matters were no longer for the Tribunal. The High Court upheld those decisions. The Supreme Court, in a judgment delivered by Mr Justice John MacMenamin on 18 July 2022, reversed that part of the High Court ruling.

The Court held that the International Protection Act 2015 did not expressly bar a person from applying for an extension of time after a ministerial refusal under section 47(5). Although the Act provides that a person may cease to be an “applicant”, the Supreme Court found no words making that status a condition for seeking an extension under the appeal regulations.

IPAT’s interpretation of the Act’s provisions together had created an effective bar to even making an application. The Court said that interpretation denied fair procedures. It ruled that IPAT acted unlawfully and outside its powers by refusing to entertain the requests on that basis. The Court was not persuaded that the relevant provisions themselves breached EU law, and it did not strike them down as unconstitutional. Instead, it interpreted the legislation in a way consistent with constitutional fair procedures.

The Supreme Court quashed IPAT’s decisions and sent both extension applications back to the Tribunal for decisions under the regulations. It did not extend either deadline, decide whether special circumstances existed, or determine whether either appeal should succeed. Those questions remain for IPAT. The judgment also said the Tribunal may consider delay, a failure to engage with the process, abuse of process and whether an appeal is manifestly ill-founded when deciding whether to grant an extension.

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