The Supreme Court has upheld the Court of Appeal’s decision against an anonymised Palestinian-origin man who sought to make a new asylum application after withdrawing an earlier one in 2000. The Court held that his later proceedings were an impermissible collateral challenge to earlier decisions that he had not challenged through judicial review within the required time limits.
The man, identified in the judgment by the initials XX and also referred to by the pseudonym Khalid, arrived in Ireland with his family in early 2000 and applied for asylum. He withdrew that application by letter in August, saying he had applied for residency based on his Irish-born child. The Department acknowledged the withdrawal and said the residency application would be sent to its immigration division. The asylum application was not interviewed or processed, and the man was instead treated as seeking immigration permission. He was granted residency in February 2001.
In 2015, after his residency permission had expired, he sought to apply for refugee status again. The Refugee Applications Commissioner indicated that the application would not be processed without the Minister’s consent under section 17(7) of the Refugee Act 1996. The Minister refused consent in June 2015, and the Commissioner later refused the renewed application. The man brought judicial review proceedings seeking a declaration that he could apply and an order requiring the application to be considered. The High Court refused relief in 2016, and the Court of Appeal dismissed his appeal.
The Supreme Court found that when the 1996 Act came into force in November 2000, the man’s asylum application had already been withdrawn. It was therefore no longer an application that could be treated under later legislation as refused. The Court agreed with the Court of Appeal’s reasoning on that issue.
However, the Court also held that the man should have challenged the Minister’s refusal of consent, and the Commissioner’s refusal to process the application, through judicial review when those decisions arose. Instead, he sought declaratory relief in proceedings that in substance attacked the earlier decisions after the relevant challenge periods had passed. The Court found no exceptional circumstances justifying that approach.
The Minister argued that the appeal was moot because the man had been deported in July 2016. The Supreme Court rejected that argument: if he had made a valid application, the legislation could have entitled him to remain in Ireland while it was pending. The Court ultimately upheld the Court of Appeal’s judgment, while stating that it could not say whether a timely challenge would have succeeded.