JUDGMENT OF Mr. Justice Mark Heslin delivered on the 19 th day of November 2025
Introduction
The applicant seeks an order of certiorari quashing the decision of the International Protection A ppeals Tribunal ( " the T ribunal " ) to affirm the recommendation of the International Protection O ffice ( " IPO " ) that he should be given n either a refugee nor a subsidiary protection declaration, as notified to the applicant by letter dated 13 June 2020 ("the decision").
The grounds upon which this relief is sought are pleaded in the following terms at (E) of the applicant's statement of grounds dated 11 July 2024:
"Legal Grounds
The Tribunal breached s. 46 (8)(b) of the 2015 Act , constitutional justice, and fair procedures by failing to notify the applicant in advance of the decision of the UK Home Office country policy and information note: sexual orientation and gender identity and expression, Albania, December 2022 (updated 22 March 2024), considered relevant by the Tribunal to its examination of the applicant's appeal.
F act ual grounds
The applicant applied for i nternational protection. H is application was the subject of a negative IPO recommendation. The applicant appealed to the Tribunal. The Tribunal rejected his appeal.
The decision of the Tribunal is unlawful by reason of the legal ground set out above. "
The s. 46(8) argument
Whilst the applicant formally makes a case with reference to s. 46 (8) of the International Protection Act 2015 ( " the 2015 Act" ) , at the start of the hearing, the applicant's counsel, Mr. Conlon SC, drew my attention to a recent decision by the Court of Appeal, adverse to the s. 46 (8) argument, namely, the decision of Mr. Justice Collins in H & A v. The International Protection Appeals Tribunal & Ors . [2025] IECA 203 (" H & A" ) wherein the following certified question was considered:
Does s. 46(8) of the International Protection Act, 2015 (read in the light of EU law) require that a decision be quashed where there has been a failure on the part of the Tribunal to disclose Country of Origin Information subsequently relied upon in its decision before deciding on an application under the Act?
Section 46(8) of the 2015 Act provides that:
The Tribunal shall furnish the applicant concerned and his or her legal representative (if known), and the High Commissioner whenever so requested by him or her, with—
(a) copies of any reports, observations, or representations in writing or any other document furnished to the Tribunal by the Minister, copies of which have not been previously furnished to the applicant and his or her legal representative (if known), or as the case may be, the High Commissioner, and
(b) an indication in writing of the nature and source of any other information relating to the appeal which has come to the notice of the Tribunal in the course of an appeal.
Answering the question in the negative, Mr. Justice Collins stated the following, at para. 35.
"35. By reference to the terms in which it is expressed and its location at the end of Part 6 of the Act of 2015, s. 46(8)(b) thus does no more than to impose a requirement on the first named respondent to furnish an applicant and his/her legal advisors with an indication in writing of the nature and source of any other information relating to an appeal that may have come to its notice in the course of resolving same. Contrary to what M.H.A. submits, the provision does not require the first named respondent to furnish the information to which it refers for the purpose of and in sufficient time to enable an applicant to consider and to make submissions thereon. The breadth of that requirement, which goes beyond information that the first named respondent considered relevant to its decision, indicates that the primary aim of s. 46(8)(b) is to ensure the transparency of the appeal process. It is thus does not designed to provide a statutory guarantee of fair procedures additional to those contained elsewhere in Part 6 of the Act of 2015 . Where information that the first named respondent discloses in the discharge of its duty under s. 46(8)(b) turns out to have been relevant to the decision in some material particular and was not disclosed to an applicant in sufficient time as to enable him or her to make submissions thereon, an argument might be made that the decision was made in breach of fair procedures. That interpretation of s. 46(8)(b) does not appear to be contrary to EU law, nor was any argument advanced to that effect. I therefore prefer the initial interpretation of s. 46(8)(b) that the trial judge favoured at para. 258 of her judgment under appeal to that which she ultimately adopted, as summarised at paras. 18 and 19, above. For my part, I do not find it in the least strange that the Oireachtas decided to reinforce the transparency of the appeal process by the enactment of s. 46(8)(b) , which amounts to an additional guarantee for applicants that the process which Part 6 of the Act of 2015 establishes is conducted in accordance with law." (emphasis added)
Background
The applicant is a national of Albania. In his grounding affidavit, sworn on 11 July 2024, he avers that he fled Albania on 1 May 2022, travelling by car to Germany. He further avers that he stayed in Germany for two months, prior to flying to Ireland, via Spain, arriving in Ireland on 24 July 2022 and using a fake Greek ID card to enter the State.
On 26 July 2022, the applicant attended at the IPO and applied for international protection. At that juncture he was interviewed, pursuant to s. 13 (2) of the 2015 Act, and he submitted an international protection application form, dated 26 July 2022, in accordance with s. 15 of the 2015 Act.
On 1 September 2022 the applicant completed an IPO questionnaire.
On 10 May 2023, the applicant was interviewed by an officer of the IPO and a written report of same was prepared in accordance with s. 35 (12) of the 2015 Act. The applicant was assisted, at the interview, by an interpreter.
The applicant's claim
The applicant applied for international protection on the basis of the following claim. He began a relationship with another man in Albania in January 2022. In April of that year, he was spotted in an intimate encounter with his partner. The applicant's father severely beat and detained him for a period of two weeks. The applicant's mother eventually released him and he went to stay with his partner. When the applicant telephoned his partner the following day, a different man answered the call and threatened him.
COI
It is clear from the s. 35 (12) report that the applicant was made aware of the significance of country of origin ("COI") information to his claim. Question 47 and the answer provided by the applicant are recorded as follows:
"Q 47. According to available country of origin information, same-sex relationships
has been legal i [n] Albania, and there are laws in place to protect LGBTQ+. That means it is possible to live safely in Albania as an LGBTQI+ person. What will you say to that?
A. My reality and the reality of people like me is totally different to what is written in law or what they claim the laws are like. The laws will be there on paper, but the reality will be different."
On 21 July 2023 the IPO completed a report under s. 39 of the 2015 Act concluding that (i) the applicant had not established a well-founded fear of persecution if returned to Albania; and (ii) the applicant had not shown substantial grounds for believing that he would face a real risk of suffering serious harm if returned to Albania. The IPO recommended that the applicant be given neither a refugee, nor a subsidiary protection declaration.
By report dated 26 July 2023, the IPO considered whether the applicant ought to be granted permission to remain, pursuant to s. 49 of the 2015 Act, and concluded that the applicant ought not be granted such permission.
The aforesaid reports of 21 and 26 July 2023 were provided to the applicant under cover of a letter dated 2 August 2023.
Under cover of a letter dated 18 August 2023, the applicant appealed the foregoing to the Tribunal.
Appeal Submissions
The 18 August 2023 notice of appeal was accompanied by detailed written submissions by the applicant's solicitor. Section 9 of these submissions referred to extracts from COI information, including:
· "Freedom House (author): nations in transit 2023-Albania, 24 May 2023";
· "USDOS-US Department of State (author): 2022 Country Report on Human Rights Practices: Albania, 20 March 2023"; and
· "GAN integrity country profiles-Albania corruption report-August 2020".
The foregoing COI extracts were cited in support of a submission that " there is no effective State protection available to the applicant in Albania".
The applicant's appeal was initially listed for hearing before the Tribunal on 19 January 2024, which hearing was adjourned.
By letter dated 19 January 2024, the applicant's solicitor made further submissions to the Tribunal which included extracts from COI reports by the European Commission and Freedom House, respectively.
An oral hearing of the applicant's appeal took place on 2 April 2024.
By decision dated 13 June 2024, the Tribunal dismissed the applicant's appeal.
By letter dated 26 June 2024, the applicant's solicitor applied for a review of the decision to refuse the applicant permission to remain under s. 49 of the 2015 Act.
By email dated 17 July 2024 the applicant's solicitor informed the Tribunal that an application for leave to seek judicial review had issued, seeking to challenge the Tribunal's decision. In the circumstances, the applicant's solicitor requested that the second named respondent refrain from issuing any negative decision in respect of the applicant's review application under s. 49 (7) of the 2015 Act.
By reply dated 15 August 2024, the Minister stated that the applicant's case was under active consideration but that, in light of the 17 July 2024 correspondence, she undertook not to issue any decision until after the conclusion of the hearing of the leave application
In the manner explained in its decision, the IPO did not accept that the applicant is a gay man or that he had been assaulted or threatened as a result. On appeal, the Tribunal decided (at para. 15): " the appellant is being afforded the benefit of the doubt and it is accepted that he is homosexual, as he has claimed " .
The Tribunal went on to consider the applicant's claim to have suffered harm because of his sexuality (paras. 16 to 22 of the decision) and ultimately did not accept that the applicant was harmed in Albania due to his sexual orientation. It is important to note that the applicant does not challenge the adverse credibility findings made by the Tribunal.
Accepted facts
The f act s accepted by the Tribunal, which are not challenged in this application, are set out (at para. 23 of the decision) as follows: " The Tribunal has accepted that the appellant is a single man without children from Albania. He was educated and worked in Albania and is homosexual ." Given the relevance of same to the applicant's case, it is appropriate to quote, verbatim, paras. 24 to 29 of the decision:
" E. Analysis of well-founded fear
Having determined which material f act s of the appellant's claim are accepted, the Tribunal will now analyse whether there is a basis for finding that the appellant's fears are well-founded, which is to say whether there is a reasonable chance of persecution for a convention reason, if the appellant is returned to Albania in the light of the accepted f act s of the case, and country information.
C ountry of origin information [hereinafter, " COI "] consulted from the US Department of State " 2023 country reports on human rights pr act ices: Albania " notes that no Albanian laws criminalise consensual same-sex relationships. There are no laws or prohibitions restricting the discussion of LGBTQI issues in media, the ability of LGBTQI individuals to assemble in public or private or to form associations, or the ability of LGBTQI organisations to legally register or convene events. The law prohibited discrimination by State and non-State act ors based on sexual orientation, including in employment. Sexual orientation and gender identity were among the classes protected by the country's hate crime law. However, the same report noted that enforcement of hate crime law was generally weak, with LGBTQI organisations stating that the national act ion plan for LGBTQI+ for 2021-2027 fell short in its implementation. The NGO Streha reported that LGBTQI individuals under reported targeted violence to police or the commission for protection from discrimination due to fear of being outed, lack of trust in the institutions, and fear for their own safety. Societal discrimination against the LGBTQI community was common. The law did not recognise same-sex civil unions or marriages, and the civil registry did not recognise semi-sex parenting.
COI from t he UK Home Office " Country Policy and Information Note: sexual orientation and gender identity and expression, Albania, December 2022 " (updated 22 March 2024) notes that in general, the available information does not establish that LGBTI persons face a risk of persecution or serious harm from the State (2.4.1) or from non-state act ors. Whilst some LGBTI persons face harassment, discrimination, violence and exclusion from non-state act ors, in general, this is not sufficiently serious by its nature and/or repetition, or by an accumulation of various measures, to amount to persecution or serious harm (2.4.11). Albania is a patriarchal, conservative society in which homophobic attitudes still exist, particularly in rural areas. Although protection from discrimination is provided for in law, in pr act ice, NGO's report that the collective LGBTI community face difficulties in accessing education, employment, housing, healthcare and goods and services due to prevailing negative attitudes of LGBTI persons in Albanian society (2.4.15).
T he information set out above suggests that Albania is a conservative country in which homophobic attitudes do exist. It does not suggest that the existence of such homophobic attitudes would give rise to the appellant suffering persecution. No other information could be found to support such a contention.
C onsidering the appellant's nationality, his personal circumstances and his sexual orientation which have been accepted previously and the country or (sic) origin information relevant to the analysis, the Tribunal finds that there is no reasonable chance that if the appellant were to be returned to his country of origin he would face a well-founded fear of persecution ... "
UK Home Office Note
It is common case that the Tribunal did not notify the applicant, in advance of issuing the decision, that it considered the UK Home Office's "Country Policy and Information Note: sexual orientation and gender identity and expression, Albania, December 2022" (updated 22 March 2024) ("the UK Home Office Note") relevant to its examination of the applicant's appeal.
The applicant's evidence
In arguing that this constituted a breach of natural and constitutional justice and fair procedures, the applicant makes the following averments:
"12. It is clear that the first named respondent relied on the country of origin information which was not disclosed to my solicitors or me in a material way in rejecting the appeal. Had the said country of origin information been disclosed to us and had we been given an opportunity to comment or make submissions in relation to it we would have been able to make submissions to the first named respondent as to why the said country of origin information should not be relied upon in the manner in which the first named respondent relied on it. We would have been able carefully to examine and scrutinise the exact nature and source of the country of origin information to make further detailed submissions explaining why it should not be relied on to reject the appeal. The Tribunal's attention could have been drawn to Good, A (2021) 'Uses and misuses of country of origin information (COI) in the refugee status determination process', which contains information relevant to an assessment of the appropriate weight to be given to a UK Home Office country policy and information note. We would have been able to put other relevant COI before IPAT to counter that being relied on by the Tribunal. I beg to refer to a copy of Good, A (2021) Uses and misuses of country of origin information (COI) in the refugee status determination process on which marked with "I" I have endorsed my name prior to the swearing in of ."
Turning to the applicant's exhibit "I", it comprises an article by Professor Anthony Good of Edinburgh University, the first paragraph of which states inter alia : " This paper critically assesses the ways in which COI is used in practice by administrative decision-makers and immigration judges ". The author proceeds to do so under a range of headings, in particular, with reference to country of origin information ("COI") concerning Sri Lanka.
Sri Lanka
Among other things, the author notes that most COI is obtained from public sources, whereas he has also made three visits to Sri Lanka to collect information more directly, accompanied by a named British solicitor specialising in asylum claims by Sri Lankan Tamils. The author went on to state inter alia that "... my field visits led to public domain reports for general use in Sri Lankan asylum appeals " and this is followed by a critique of the manner in which a particular Tribunal in the UK dealt with evidence given by him.
Without intending any disrespect, it is entirely unclear what submissions the applicant would have been able to make, with reference to Professor Good's report, or otherwise, had the Home Office Note been drawn to the attention of the applicant or his solicitors.
There is nothing in Professors Good's report to suggest that the Albanian COI information contained in the UK Home Office Note was inconsistent with the COI information in the US Department of State 2023 reports. No complaint is made by the applicant in relation to the Tribunal's reliance on the latter.
Us Dept of State
For the sake of completeness, it should be said that the US Department of State's 2023 reports were not drawn to the specific attention of the applicant or his solicitors. In fact, the written submissions furnished by the applicant's solicitors to the Tribunal, dated 18 August 2023, referred to a 2022 report on human rights practices in Albania authored by the US Department of State. The applicant accepts that he made no complaint about the Tribunal's reliance on the 2023 , rather than the 2022 US Department of State COI, submitting that there was no substantial difference between the foregoing.
However, there is no evidence whatsoever before me to the effect that there is any material difference between the US Department of State COI and the UK Home Office Note.
The applicant does not aver that the latter is in any way inconsistent with the former. The applicant does not aver that the UK Home Office Note contains any errors. The applicant does not suggest that the UK Home Office Note altered the position as disclosed in the US Department of State reporting. Nor does the applicant claim that the UK Home Office Note contained anything significant or unusual, when compared to the US Department of State reporting.
Furthermore, and without intending any disrespect, the averments made by the applicant at para. 12 of his grounding affidavit in relation to the submissions as to why the UK Home Office COI "... should not be relied upon ..." are made in the most general and vague terms. There is simply no engagement with the COI contained in the UK Home Office Note which, as a matter of fact, is similar in substance to the COI contained in the US Department of State reporting.
Even at this late stage, the applicant has given no indication whatsoever as to what he would have said, had the UK Home Office Note being disclosed in advance of the Tribunal decision. This is, perhaps, unsurprising, given the fact that both the US and UK COI is similar in substance. Indeed, this reality is illustrated by the contents of the Tribunal's decision, in particular, paras. 25 and 26, wherein the Tribunal summarised the US and UK COI, respectively. Both sets of COI disclosed what might be called positives and negatives, and the applicant does not suggest that the Tribunal's summary of the respective COI is in any way inaccurate.
It is also a matter of fact that the UK Home Office Note contains repeated references to the reporting by the US Department of State in the context of discussing both negatives and positives. By way of illustration, the UK Home Office Note states inter alia :
" 3.1.8 The United States Department of State 2022 report on human rights in Albania covering the year of 2021 (USSD report 2021), noted that sexual orientation and gender identity are among the classes protected by the country's hate crime law [footnote 12]";
"4.3.2 The USSD report 2021 noted that 'despite the law and the government's formal support for rights, public officials sometimes made homophobic statements.' [footnote 44]";
"4.10.6 According to the USSD report 2021 'as of August, the commissioner for protection from discrimination had received seven cases of discrimination based on sexual orientation, gender identity, or both. Most cases were under review...' [footnote 73]";
"4.10.7 The same report noted that 'the commissioner for protection from discrimination reported that most allegations of discrimination involve race, sexual orientation, economic status, or disability.' [footnote 74]";
"5.2.3 The USSD report 2019 noted: 'as of September, Aleanca reported 46 cases of physical and psychological violence, six of which involved minors. In 201, [sic] Aleanca documented 421 cases of physical and psychological violence against LGBTI community members.' [footnote 83]";
"5.2.8 The USSD report 2021 also considered hate speech against LGBTI individuals in Albania, 'some incidents of hate speech occurred online and in the media after an LGBTQI + activist suggested changing the law to enable registering the children of LGBTQI + couples...' [footnote 88]";
"6.3.1 The USSD report 2021 noted, without specific reference to LGBTI persons, that individuals with HIV or AIDS faced employment discrimination [footnote 120]";
"6.3.2 The same report also highlighted that 'the law prohibits discrimination based on sexual orientation, including in employment. Enforcement of the law was generally weak.' [footnote 121]."
COI - the factual situation in this case
Not only is the COI in UK Home Office Note similar, in nature, to the US Dept of State reporting (i.e. from well known, publicly available and authoritative sources) the latter makes repeated references to the former, further illustrating that both sets of COI are similar in substance (i.e. the picture painted by both sets of COI is materially the same). The foregoing is the factual situation in the present application.
In these circumstances, the applicant does not plead or a ver that the UK Home Office Note was in any way obscure, or unusual, or contained information which was materially at variance with the COI information which he relied upon. Furthermore, the applicant does not suggest that there were any factual inaccuracies in the UK Home Office Note of relevance to his case.
The applicant's submissions
The case made by the applicant is put in the following terms at para. 12 of the applicant's written legal submissions:
"The decision-maker came into possession of new COI. Whether new COI needs to be put to an applicant depends on whether it materially changes the picture before the decision maker. If there is such a material change, adverse to the applicant, then as a matter of generality that new information should be put. In the present case, the Tribunal carried out its own private research on country of origin information, which was not put to the applicant. That research resulted in COI different to the country of origin information which was before the Tribunal in the first place. On that basis, there was a breach of duty on the part of the Tribunal."
The difficulty from the applicant's perspective is that the UK Home Office Note did not materially change the picture. On the contrary, it painted the same nuanced picture of 'positives' and 'negatives' as the US Department of State reporting had. There was no change, still less any change adverse to the applicant. To illustrate the point, this is not a situation where, for example, the US Department of State COI concluded that gay people in Albania suffer or are likely to suffer persecution, whereas the UK Home Office Note suggested otherwise. On the contrary, both sets of COI information are consistent with each other. I now turn to look at certain authorities contained in the joint-book which counsel, very helpfully, provided to me.
Authorities
In YY v. Minister for Justice and Equality [2017] IEHC 176 , this Court (Humphreys J.) dealt with a challenge to a deportation order. In deciding that a deportation should be made, the Minister considered a number of country of origin reports ( US Department of State; Amnesty International; and UK B order A gency) and relied on these country of origin reports to justify her decision that the appellant's deportation order would not constitute a violation of his rights pursuant to Article 3 of the European Convention of H uman Ri ghts. The applicant argued that the Minister breached fair procedures by not informing him in advance of COI information which the Minister intended to rely. The learned judge addressed this issue as follows:
"Is it a breach of fair procedures to rely on country material not signalled to the applicant?
The answer to this question depends on the nature of the material rather than just on whether it is going to be relied on. Widely-known and standard material such as reports of Amnesty International, Human Rights Watch, Freedom House, the U.S. State Department or the U.K. Border Agency do not need to be notified . Any applicant must be taken to have access at all times to general published country information of this kind, and must be taken to be aware that such general material is the background against which protection claims will be assessed. Obscure material that is going to materially change the picture appearing from the basic and universal material should however be notified. Mr. Lynn plaintively asks in relation to generally available country reports, " is the solicitor in a pre-emptive move expected to go through all those reports? " Unfortunately, he is. It seems odd that over 20 years on from the enactment of a statutory protection system, the need to read generally-available country reports as a matter of course could come as a surprise; or in particular that solicitors holding themselves out as acting in the immigration and asylum area should pleadingly seek exemption from the plight of having to look up such material.
I therefore uphold the plea at para. 24 of the statement of opposition that ' requirements of constitutional and/or natural justice and/or the law on fair procedures do not require notice to be given to the Applicant of well-known, objective and publicly accessible country of origin information , including country reports from the United States State Department, or country information from the United Kingdom Home Office. Specifically, it is pleaded that no obligation arose in the circumstances of the case to canvass the views of the Applicant in respect of same '." (emphasis added)
In YY v. T he Minister for Justice and E quality [2017] IESC 61 (" YY "), the Supreme Court considered the applicant's appeal against the judgment of Mr. Justice Humphreys and, at para . 5 6, O'Donnell J . ( as he then was) stated:
" Concentrating for the moment on the issues which have been certified by this Court as of importance to merit appeal to this Court, the trial judge considered first, that the Minister was not required to notify the applicant of any mainstream country of origin information. Thus, at paragraph 98, he concluded that any applicant (and more pertinently any legal representative) must be taken to have access at all times to general published country information of this kind, and must be taken to be aware that such general material is the background against which protection claims will be assessed. Obscure material that is going to materially change the picture appearing from the basic and universal material should however be notified..."
The learned judged proceeded to hold, at para. 60:
" On the first issue certified, the notification of country of origin information, the applicant did not make extensive submissions. Having considered the affidavit evidence and the case law, I am persuaded that the High Court was correct to consider that unless the country of origin material considered was in some respect unusual, there was no obligation on the Minister to confine himself or herself to the country of origin information submitted by the applicant, or to notify the applicant of any additional country of origin information of the same general nature considered by the Minister. This was not a case of submission to an independent decision maker expected to bring to the issue nothing more than an open mind. The Minister is an office holder obliged by law (as set out in case such as JK v. Sweden referred to at para. 41 above) to be aware of up-to-date information in respect of a country, and to act on it, even if it had not been adverted to by or on behalf of the applicant. It is also clear from the correspondence submitted by the applicant, from the very outset, that country of origin information from standard publicly available sources, is the lingua franca of any deportation decision making process . Again, it is clear from the evidence that the applicant made copious and repeated use of such information which was presented in a fashion that clearly assumed the Minister was familiar with the same information and sources ..." (emphasis added)
The applicant in the present proceedings seeks to distinguish the Supreme Court's decision in YY on the basis that it concerned a decision by the Minister in the context of deportation and to emphasise that the Tribunal is an " independent decision maker " with an inquisitorial role. With respect, I cannot agree that the principal articulated in YY is not applicable to the present situation. The better view, as the respondent submits, is that the distinction drawn by the Supreme Court concerned decision-making by an independent decision maker in a purely adversarial process (such as legal proceedings before the courts). Furthermore, it seems to me that the principle in YY is just as relevant to a decision regarding international protection, notwithstanding the different roles of the Minister and the Tribunal, respective. Turning to the facts before me, three things can be said in light of the analysis in YY .
First, there was nothing " unusual " in the UK Home Office Note. Moreover, it was of the same " general nature" as the COI information provided by the applicant's solicitors to the Tribunal.
Second, it is clear from the evidence in the present application that the applicant, through his solicitors, assumed that the Tribunal was familiar with COI information and the sources of same.
Third, having regard to the correspondence dated 18 August 2023 and 19 January 2024, in which the applicant's solicitors made detailed submissions with reference to COI information from mainstream sources (including, Freedom House; the US Department of State; and the European Commission) it could just as easily be said that COI information from standard publicly available sources was the lingua franca of this international protection decision-making process.
In short, guided by the principle articulated in YY , I am satisfied that there was no obligation on the Tribunal to confine itself to the COI information submitted by the applicant or to notify the applicant of the UK Home Office Note (being COI information of the same general nature as the applicant submitted to the Tribunal, and which was not obscure, or unusual, or inconsistent with the COI information relied upon by the applicant).
Moyosola v. The Refugee Applications Commissioner & Ors
The applicant seeks to rely on this Court's decision in Moyosola v. The Refugee Applications Commissioner & Ors [2005] IEHC 218 (" Moyosola ") which concerned applications for refugee status. In Moyosola , the reports of the first named respondent contained a finding to the effect that, in the view of the RAC, " the application showed either no basis or a minimal basis for the contention that the applicant is a refugee". From p. 11 of his decision, Clarke J. (as he then was) stated:
"It is clear from a consideration of the operative part of the report in each case that the view of the RAC was to a significant extent based on a general finding of lack of credibility in respect of the applicants, the lack of consistency, in the view of the RAC, of the accounts given by the respective applicants with certain country of origin information and the view of the RAC that the applicants could have availed of the option of relocation within Nigeria in all the circumstances of the case.
Against that background it is necessary to assess whether the statutory regime as it now stands is (sic) fails to comply with the principles of constitutional justice.
In Nguedjdo v. Refugee Appeals Commissioner (Unreported, High Court, ex-tempore judgment of White J. 23 rd July, 2003) the Court made an order granting leave to seek an order of certiorari quashing the decision of the RAC in that case on the basis that same was made in breach of constitutional and natural justice by virtue of the failure to give the applicant concerned the opportunity to deal with matters which would appear to have been crucial to the determination in the case then under consideration. In applying that principle to a decision of the Refugee Appeals Tribunal in Idiakheua v. The Minister for Justice Equality and Law Reform & Another. (Unreported judgment of Clarke J. 10 th May, 2005), I said the following:
' It seems to me that an inquisitorial body is under an obligation to bring to the attention of any person whose rights may be affected by a decision of such a body any matter of substance or importance which that inquisitorial body may regard as having the potential to affect its judgment. In that regard an inquisitorial body may, in many cases, be in a different position to a body which is simply required to adjudicate upon the contending positions of two competing parties in an adversarial process . In the latter case the adjudicator simply decides the issues on the basis of the case made whether by evidence or argument by the competing parties. However, the principles which have been developed by the courts since the decision of the Supreme Court in re Haughey [1971] I.R. 217 are equally applicable, in principle, to inquisitorial bodies. The precise way in which those principles may be applied may, of course, differ. However, the substantial obligation to afford a party's (sic) whose rights may be affected, an opportunity to know the case against them remains. In those circumstances it seems to me that whatever process or procedures may be engaged in by an inquisitorial body, they must be such as afford any person who may be affected by the decision of such body a reasonable opportunity to know the matters which may be likely to affect the judgment of the body against their interests...'. " (emphasis added)
The first observation to make is that the distinction drawn by the Supreme Court in YY echoes the views expressed above (i.e. with regard to an adversarial process). Furthermore, I can see no inconsistency between the statements of general principle in Moyosola and the Supreme Court's analysis in YY .
It seems to me that a key principle which emerges from Moyosola is that the requirements of constitutional justice and fair procedures are fact-specific. In the present case, the applicant knew the matters likely to affect the Tribunal's judgment and was aware, at all material times, of the significance of COI information to the Tribunal's decision. Not only was COI referred to when the applicant was interviewed (again, see Q. 47 in the s. 35 report), the applicant made detailed written submissions with reference to COI information of the same general nature considered by the Tribunal.
Additional COI
Whilst the Tribunal also took account of additional COI, the following can be said of the UK Home Office Note. It constituted mainstream COI information. It was of the same general nature. It was not obscure. It was in no respect unusual and it did not materially change the picture. In these circumstances, I am satisfied that it was not a breach of constitutional or natural justice or fair procedures, and did not contravene the principles set out in Moyosola, for the Tribunal to take account of the UK Home Office Note, without giving prior notification to the applicant.
Z.A. v. International Protection Appeals Tribunal
The applicant also places significant reliance on the decision of this Court (Burns J.) in Z.A. v. International Protection Appeals Tribunal & Anor [2021] IEHC 416 (" ZA ") wherein the learned judge held that there had been a breach of the audi alteram partem principle, in circumstances where the first respondent failed to bring to the applicant's attention a particular COI report, (specifically, the then most up-to-date EASO report, published in October 2019) prior to making its determination. However, the facts in ZA are materially different to those in the present case.
ZA concerned a national of Pakistan from Sialkot, which is a border region in the Punjab province. The applicant entered the State in June 2014 and made a claim for international protection in September 2018. In September 2019, the IPO recommended that he be granted neither a refugee, nor subsidiary protection, declaration. The applicant appealed to the first respondent who upheld the first instance recommendation. Dealing with the applicant's claim for judicial review, Ms. Justice Burns stated the following from para. 7:
" On appeal, the First Respondent did not find the material elements of the Appellants claim to be credible and rejected the material facts of his claim. However, the First Respondent also found that having considered all of the COI, including the most up-to-date EASO report published in October 2019, the Applicant was not at real risk of serious harm, as provided for pursuant to article 15 (C) of the Qualifications Directive. The First Respondent noted that Sialkot was only mentioned once in the body of the 2019 EASO report wherein it was stated that "while cross border shelling impacted civilians in Sialkot in 2018, there was no evidence of the same in the first seven months of 2019 ".
Change
Thus, COI information which the first respondent did not put to the applicant disclosed a significant change between the 2018 and 2019 positions. As Burns J. made clear at para. 10 of her judgment, the first respondent took a different view than the IPO regarding the entirety of the COI and formed this view having also considered the more recent 2019 EASO. The learned judge went on to hold, at para. 14, that:
" On the particular facts of this case, the 2018 EASO report had a distinct significance for the Applicant. The 2019 EASO report altered that significance. In light of the importance of that change for the Applicant, it is appropriate that the Applicant would have had an opportunity to make representations to the First Respondent in respect of same."
As Ms. Justice Burns put it, at para. 17 of her judgment in ZA , it was "... in the particular circumstances of this case and having regard to the significance of the change of import in the COI, there was a breach of the principle of audi alteram partem ".
On the particular facts of the present case the UK Home Office Note did not alter the significance of the COI information upon which the applicant relied. Rather than it changing anything, the UK Home Office Note was, in substance, similar to the COI information relied on by the applicant. Given the facts in the present application and the arguments canvassed by the applicant, it is also important to note what the learned judge had to say at para. 12 of her decision in ZA :
"12. Counsel for the [respondent] is also correct that i n the immigration law sphere, case law exists indicating that the principles of audi alteram partem do not require the decision-maker to notify an applicant's legal representatives of up-to-date, readily available and relevant COI ." (emphasis added)
By the same token, Burns J. stated inter alia, at para. 15, that: "... it is expected that
practitioners specialising in this area have a knowledge of all up-to-date, readily available and relevant COI...".
The analysis by Ms. Justice Burns also fortifies me in the view that the applicant's efforts to distinguish YY (as being confined to decision-making by the Minister on the question of deportation, as opposed to decision - making in the " immigration law sphere ", including, by the Tribunal) must be rejected.
In the applicant's written legal submissions it is asserted that: " the fact that a document is publicly available does not absolve the Tribunal of its duty to notify and provide an opportunity to respond, where the document is not part of the material previously furnished to the applicant and is relied upon in the decision ". I must respectfully disagree. Guided by the authorities to which I have referred, including ZA , it seems fair to say that the 'default' position is that where the COI is not unusual and does not alter the position in a material way, there is no obligation on the Tribunal to confine itself to the COI submitted by the applicant or to notify the applicant of up-to-date, readily available, mainstream COI of the same general nature.
BW v. Refugee Appeals Tribunal
With regard to the applicant's purported reliance on BW v. Refugee Appeals Tribunal [2017] I E CA 296; [2018] 2 ILRM 56 (" BW ") the facts are materially different to those in the present application. The applicant in BW came to this State in 2007 and applied for refugee status in 2011. Following an adverse decision at first instance, she appealed to the Refugee Appeals Tribunal ("RAT") which made adverse credibility findings based on matters that had not been put to the applicant. At paragraph 49, Peart J. emphasised:
"... The importance, as a matter of fair procedures, attaching to the requirement that where some matter is giving rise to a concern as to credibility on the part of the decision-maker, the applicant must be given a fair opportunity of addressing that concern before any adverse finding of credibility is made against her."
Whilst there can be no issue t aken w ith the foregoing principle, it simply does not arise in the present application. The applicant in this case neither challenges adverse credibility findings, nor suggests that same were reached without an opportunity for him to address the relevant issues.
It also seems appropriate to return, briefly, to the Court of Appeal's decision in H&A wherein Mr. Justice Collins stated the following:
" 36. Since the first named respondent did not breach s. 46 (8) of the Act of 2015, the Court need not consider the consequences of the asserted non-compliance. Paragraph 257 of the judgment under appeal indicates that M.H.A. rested his case under this heading upon an alleged breach of a statutory requirement and not upon a want of fair procedures. In so far as M.H.A. may now seek to make both arguments, I endorse and adopt the reasoning in para. 261 of the judgment under appeal set out at para. 19 above... " (emphasis added)
At para. 261 of her judgment in A.A.H. v. International Protection Appeals Tribunal & Ors [2024] IEHC 699 (" AAH "), Ms. Justice Phelan stated the following in relation to reliance by the Tribunal on reporting which had not been notified in advance to the applicant or his legal representatives (i.e. the EUAA's report on jurisprudence on secondary movements by beneficiaries of international protection, June 2022):
" 261. The EUAA report in question was publicly accessible and available to Mr. A. and his legal advisors. There is no basis, therefore, upon which it could be contended that reliance on information contained in the report resulted in any substantive unfairness and such procedural non-compliance as may have occurred does not result in injustice or materially affect the fairness of the process in the manner which would warrant relief by way of judicial review. This is borne out by the fact that Mr. A. has not identified any particular submission he would have wished to advance with reference to the content of the said report but has been prevented from doing so to his detriment ..."
The foregoing analysis can also be applied to the UK Home Office Note in the present case, which was " publicly accessible and available " to the applicant and his legal advisors. Furthermore, the applicant has " not identified any particular submission ", with reference to the content of the UK Home Office Note, which he says he would have made had he been notified of same in advance. Furthermore, the applicant, in fact, relied on similar COI, albeit obtained from different publicly available sources.
EU law
In oral submissions, counsel for the applicant argued that the Tribunal's failure to notify the applicant, in advance, of the UK Home Office Note constituted a breach of EU law. In this regard, reference was made to the EU Charter of Fundamental Rights, in particular, Article 41 (right to good administration) and Article 47 (right to an effective remedy and to a fair trial). Furthermore, reliance was placed on Council Directive 2005/85/EC on minimum standards on procedures in member States for granting and withdrawing refugee status ("the Procedures Directive"), in particular, Article 16 (scope of legal assistance and representation) and Article 39 (the right to an effective remedy). Moreover, particular reliance was placed on the Tenth Chamber's 1 December 2022 decision in BU v. Federal Republic of Germany (C-564/21, EU: C: 2022:951) (" BU v. Germany ").
The pleaded case, for which leave was granted, comprises a single ground and there is no reference made in the statement of grounds to either the EU Charter or the Procedures Directive. I do not regard the reference in the sole legal ground at (E) to " constitutional justice and fair procedures " as a plea that the Tribunal breached EU law. Furthermore, no application was made during the hearing for liberty to amend the applicant's statement of grounds.
It is settled law that an applicant for judicial review is confined to the pleaded case. Why this is so has been made clear in a range of authorities, including the decision of the Supreme Court in Casey v. Minister for Housing & Ors. [2021] IESC 42 , wherein (from paras. 29 - 33) Ms. Justice Baker set out the following analysis:
"29. The way a claim is pleaded is a factor of some importance in judicial review as O. 84 r. 23(1) RSC provides that, subject to r. 23(2), no ground may be relied on or any relief sought at the hearing except the grounds and relief set out in the statement of grounds, save where amendment is permitted. Express provision is contained in O. 84 r. 20(4) RSC itself to permit such amendment, and for the purposes of the present judgment the statement of grounds does perform the same function as pleadings generally, and in the case of judicial review, having regard to the requirement to obtain leave to bring judicial review on the grounds pleaded, the requirement for clarity and specificity in pleadings and the extent to which the statement of grounds defines and confines the issues to be determined at trial could be regarded as more strict.
In Keegan v. Garda Síochána Ombudsman Commission [2015] IESC 68 , O'Donnell J. explains the principle at para. 42:
'It is not merely a procedural complaint that the ground upon which the case was decided was not one upon which leave was sought or indeed granted nor was there an appropriate amendment. The purpose of pleadings is to define the issues between the parties, so that each party should know what matters are in issue so as to marshal their evidence on it, and so that the Court may limit evidence to matters which are only relevant to those issues between the parties, and so discovery and other intrusive interlocutory procedures limited to those matters truly in issue between the parties. This is particularly important in judicial review, which is a powerful weapon of review of administrative action'.
A matter may arise in the course of argument beyond the scope of a particular ground in which leave was granted, leave to amend should be sought to permit any extended or new ground to be argued: see AP v. DPP [2011] IESC 2 , [2011] 1 IR 729 , per Murray C.J.
Order 84 r. 20(4) provides that a court may, at leave stage or thereafter, permit a statement of grounds to be amended, although amendment post leave is to be brought on notice under O. 84 r. 23. A decision therefore may come to be made outside the pleaded case if the trial judge permits an amendment of the grounds, or if the parties in consultation with the judge agree that the point is sufficiently pleaded, albeit it came to take a different tone or emphasis in the course of argument. But the power to permit amendments is strictly applied: per Fennelly J. in Keegan v. Garda Siochána Ombudsman Commission [2012] IESC 29 , [2012] 2 IR 570 :
The commencement of judicial review proceedings has a chilling effect on administrative activity, until the issue is resolved one way or another. The requirement for leave acts to ensure precision and speed in the remedy and to weed out unmeritorious claims. Charleton J. in Esmé v. Minister for Justice and Law Reform [2015] IESC 26 commented, with reference to the effect of judicial review on administrative decisions and the requirement for leave, at para. 15:
' This is the filter, which the leave application is designed to be, in order to ensure that there is sufficient reason to disrupt administrative decisions and to litigate them.' "
Given that, in my view, leave was not granted to challenge the decision on the basis that it breached EU law, it would be inappropriate for this Court to entertain such a challenge.
Lest I be entirely wrong in the foregoing views, I want to make clear that I am very satisfied that the applicant has not established any breach of rights, whether viewed through the 'lens' of the Charter, or the Procedures Directive, or EU jurisprudence.
In seeking to rely on the decision in BU v. Germany , counsel for the applicant laid particular emphasis on the following passage, in para. 43:
" 43. Subject to the elements for which the authority concerned requests confidentiality, for duly explained objectives of public interest, such as those referred to in paragraphs 37 and 38 of the present judgment, and to documents which are not relevant to the outcome of the application for international protection, the applicant's representative must be granted access to the complete file as presented to the competent court, in order to be able to discuss, in the context of an adversarial debate, both the factual and legal elements which are decisive for the outcome of the proceedings. Such a requirement is necessary in order fully to guarantee the applicant's rights of defence and respect for the adversarial nature of the proceedings, which are linked to the right to a fair trial (see, to that effect, judgment of 4 June 2013, ZZ, C-300/11, EU: C: 2013:363, paragraphs 55 to 57 and the case-law cited)." (emphasis added)
The foregoing principle can only be understood with reference to the facts in BU v. Germany , which can be summarised as follows. The applicant submitted an application for international protection which was rejected by the Bundesamt f r Migration und Fl chtlinge (or Federal Office for Migration and Refugees, Germany) ('the BAMF'). In accordance with the BAMF's administrative practice, the officer who decided on the applicant's claim signed the decision, dated 18 December 2019, scanned the decision, and saved the document resulting from the scanning of same in the applicant's electronic administrative file. The applicant received a printout of that document, whereas the original of the decision was destroyed after it was scanned.
Page numbering
A complete version of the file in electronic format was available to the applicant, which could be downloaded free of charge, but which was not consecutively paginated. As stated at para. 14 of the judgment in BU :
" 14. The representative of the applicant in the main proceedings requested that the BAMF provide him with the applicant's complete administrative file in the form of a single file in PDF format with consecutive page numbering . Following the rejection of that request, he applied to the referring court for interim measures in that regard. " (emphasis added)
It was against the foregoing factual background that that national court referred the following questions to the Court of Justice:
" (1) Does it follow from the right to a fair trial under article 47 of [the Charter] that the administrative file to be submitted by the authority in the context of an inspection of files or a judicial review is to be submitted in such a way-even where it is in electronic form-that it is complete and paginated, and changes are therefore traceable?
(2) Do articles 23 (1) and 46 (1) to (3) of Directive [2013/32] preclude a national administrative practice according to which, as a general rule, the authority provides the asylum seekers legal representative and the [national] court with only an extract taken from an electronic document management system and containing an incomplete, unstructured and non-chronological collection of electronic PDF files, whereby the latter do not have a structure or set out the sequence of events in chronological order, let alone reflect the complete content of the electronic file?
(3) Does it follow from articles 11 (1) and 45 (1) (a) of Directive [2013/32] that a decision must be signed by hand by the decision-maker of the determining authority, kept on file or served on the applicant also as a document signed by hand?
(4) Is the handwritten form within the meaning of articles 11 (1) and 45 (1) (a) of Directive [2013/32] respected where the decision is signed by the decision-maker but then scanned and the original destroyed, that is to say, the decision exists in writing only to a certain extent "
The ruling by the court in BU v. Germany concerns national administrative practice as regards the availability of electronic files to the representative of an application for international protection. However, the decision is certainly not authority for the proposition that fair procedures require an applicant for international protection to be given advance notice of publicly available, mainstream COI information.
It is also fair to say that the very issue raised by the applicant in the present case has previously been examined by the Court of Appeal with reference to EU jurisprudence. At para. 29 in F.M. v. Minister for Justice and Equality [2020] IECA 184 (" FM ") Ms. Justice Faherty noted that: " The question of whether it was necessary to notify subsidiary protection applicants of country of origin information proposed to be relied on by the Minister was also considered in Y.Y. v. Minister for Justice and Equality [2017] IESC 61 ..." and the learned judge went on to quote from para. 60 of the decision of O'Donnell J. (as he then was).
As explained by Ms. Justice Faherty, at para. 21 in FM, the claims made by the appellants included the following:
" (i) Alleged breach by the Minister of the audi alteram partem rule
It is contended on behalf of the appellants that the subsidiary protection decisions should be quashed for breach of the audi alteram partem rule. It is submitted that the appellants' right to be heard was breached by the failure to have any appeal process in place in respect of their subsidiary protection applications. It is also alleged that the various country of origin information reports which the Minister consulted and relied upon to refuse subsidiary protection were not put to the appellants at any stage, thereby breaching their right to be heard . Although accepting that, generally, there may be no need to put or show "mainstream" country of origin information to a subsidiary protection applicant, counsel argues that in circumstances where there was no appeal process, or process akin to the revocation of a subsidiary protection decision, the appellants' right to be heard required that they be informed, in advance of any decision on their subsidiary protection applications, of the Minister's intended reliance on such information. It is argued that this was particularly so where a subsidiary protection applicant was never aware when the decision on his or her subsidiary protection application would be taken ."
The learned judge dealt with the claim as follows:-
" 30. The appellants' principal submission on the issue appears to be that the absence of an appeals process at the time their respective subsidiary protection decisions were made rendered it imperative that they be informed of the country of origin information being relied on and given an opportunity to comment on such information.
I am satisfied, however, that the argument advanced by the appellants in this regard must be rejected. The absence of an appeal process at the time the impugned decisions were taken cannot, of itself, constitute grounds upon which to vitiate the decisions on the basis of an asserted breach of the right to be heard. As is clear from what is set out below (in considering issue (ii)), judicial review is an effective remedy for the purposes of Article 47 of the Charter of Fundamental Rights of the European Union ("the EU Charter"), as found by the CJEU and the courts in this jurisdiction. It is thus a sufficiently flexible remedy whereby the Minister's assessment of the subsidiary protection applications is amenable to scrutiny, where it is alleged that procedural or substantive deficiencies attach to the Minister's decision.
Moreover, the appellants have failed to identify the type of exceptionality referred to by O'Donnell J. at para. 25 of his judgment in M.M. v. Minister for Justice and Equality & Ors such as might have rendered it imperative for the Minister to permit an oral interview, or otherwise invite comments from the appellants on the country of origin information then being considered by the Minister. As I have already observed, it has not been argued before this Court on behalf of any of the appellants that the Minister failed to consider cogent and reliable country of origin information relevant to their particular circumstances or that there was any other case specific error or omission on the part of the Minister . More particularly, with regard to any one of these appeals, it has not been argued that the trial judge erred in finding that the Minister properly considered cogent and up to date country of origin information in determining the respective subsidiary protection applications. By way of example, in the case of F.M., I note, from a perusal of the subsidiary protection decision, that the country of origin information relied upon was cogent and up to date.
In all the circumstances of these cases, I perceive no basis upon which to hold that the trial judge erred in failing to quash the subsidiary protection decisions on the ground that the appellants' right to be heard was breached ."
In the present claim, the applicant does not contend that the Tribunal made any specific error or omission with reference to the COI information considered. On the particular facts of this case, the COI which the Tribunal considered (including the UK Home Office Note) was cogent; up-to-date; comprehensive; prepared by a reputable and well-known source; publicly-available; relevant; and capable of being relied upon. The applicant has proffered no authority to suggest that EU principles create any different or more extensive right to be heard than that articulated by the Supreme Court in YY , insofar as COI information is concerned.
Before concluding this judgment, I want to express thanks for the assistance given to me by Mr. Conlon SC (for the applicant) and to Mr. Byrne BL (for the respondents) and by their respective instructing solicitors. Both counsel provided detailed written submissions and supplemented these with oral submissions of great clarity.
Regardless of the undoubted skill and sophistication with which submissions were made on behalf of the applicant, the outcome of this case turns on the application of relevant legal principles to the particular facts. For the reasons set out in this judgment, I am satisfied that this application for judicial review must be dismissed.
In circumstances where the respondents have been entirely successful, my preliminary view is that they are entitled to their costs and I can see no factor which would justify a departure from the 'normal' rule that 'costs follow the event'. I propose listing the matter before me at 10:30 am on Friday, 5 December 2025 for the purpose of making final orders. The parties have liberty, but are not required, to file short written submissions on the question of costs, no later than 5 pm on Monday, 1 December 2025.