47. The respondents rely on a number of factors which, in their submission, distinguished the present case from Odum. �They submit that there are currently a number of other decisions (similar to those which these proceedings concern) which have been challenged, and which remain outstanding in the courts. �If the matters arising are moot, the implication is that in all pending cases fresh decisions will need to be taken applying the amendments in the 2024 Act.� Because the 2024 Act has fundamentally altered the relevant legal landscape, there is no risk of uncertainty or of the proliferation of inconsistent decisions, as in Odum.
48. The respondents concede that the issue of whether Ireland can be indirectly bound by a measure of EU law which it did not adopt may be of wider importance. However, they submit that this issue may arise in contexts other than that of the present proceedings, and that, if this were to occur, it would be better to resolve it in that other context. In addition, determining this appeal runs the risk of duplication of litigation.� Regardless of the outcome of such an appeal, there is a risk that future challenges will be brought in respect of the 2025 Order, or the issue of the indirect incorporation of EU law.� This is because it may be possible to argue that the Court's judgment can be distinguished in different contexts.�
49. The respondents also submit that, should the proceedings be deemed moot, they will have no interest in the outcome of the appeal, which would impact upon the adversarial nature of proceedings. Furthermore, they submit that it is positively contrary to their interests for the appeal to be heard due to the potential costs implications and the fact that a moot legal argument would further delay their applications for international protection. They further question what interests the State has in the determination of this appeal if it is moot.
50. In the respondents' submission, the interests of justice do not require the determination of the appeal. They contend that, beyond Odum, no exceptional circumstances exist to justify the exercise of the Court's discretion to hear a moot appeal.� �They submit that the appellants' reliance on the number of pending High Court cases which share similar issues is of no assistance to them.� If these proceedings are moot as the respondents submit, then the pending cases will be decided under the new legislative framework and they are moot in the same way as these appeals are.� The pending cases should not be delayed while a moot appeal is determined.
The appropriate venue
51. The respondents submit that, in the event that the Court determines that these appeals should be heard, this Court is the appropriate venue, and they proffer a number of reasons in support of this. �In particular, they submit that this Court has already indicated that the substantive grounds of appeal raise issues of public importance. In the respondents' submission, these issues are therefore likely to come before this Court at some later stage if not determined in these proceedings. Remittal would therefore be inappropriate.
Decision
The Legal Principles
52. The principles governing the doctrine of mootness have been set out in some recent decisions of this Court, including Lofinmakin and Odum.� In Lofinmakin, McKechnie J. stated as follows:
"[82] From the relevant authorities thus reviewed...the legal position can be summarised as follows:
(i) a case, or an issue within a case can be described as moot when a decision thereon can have no practical impact or effect on the resolution of some live controversy between the parties and such controversy arises out of or is part of some tangible and concrete dispute then existing;
(ii) therefore, where a legal dispute has ceased to exist, or where the issue has materially lost its character as a lis, or where the essential foundation of the action has disappeared, there will no longer be in existence any discord or conflict capable of being justiciably determined;
(iii) the rationale for the rule stems from our prevailing system of law which requires an adversarial framework, involving real and definite issues in which the parties retain a legal interest in their outcome.� There are other underlying reasons as well, including the issue of resources and the position of the Court in the constitutional model;
(iv) it follows as a direct consequence of this rationale, that the court will not - save pursuant to some special jurisdiction - offer purely advisory opinions or opinions based on hypothetical or abstract questions;
(v) that rule is not absolute, with the court retaining a discretion to hear and determine a point, even if otherwise moot.� The process therefore has a two step analysis, with the second step involving the exercise of a discretion in deciding whether or not to intervene, even where the primary finding should be one of mootness;
(vi) in conducting this exercise, the court will be mindful that in the first instance it is involved in potentially disapplying the general practice of supporting the rule, and therefore should only do so reluctantly, even where there is an important point of law involved.� It will be guided in this regard by both the rationale for the rule and by the overriding requirements of justice;
(vii)� matters of a more particular nature which will influence this decision include:
(a) the continuing existence of any aspect of an adversarial relationship, which if found to exist may be sufficient, depending on its significance, for the case to retain its essential characteristic of a legal dispute;
(b) the form of the proceedings, the nature of the dispute, the importance of the point and frequency of its occurrence and the particular jurisdiction invoked;
(c) the type of relief claimed and the discretionary nature (if any) of its granting, for example, certiorari;
(d) the opportunity for a further review of the issue(s) in actual cases;
(e) the character or status or the parties to the litigation and in particular whether such be public or private:� if the former, or if exercising powers typically of the former, how and in what way any decision might impact on their functions or responsibilities;
(f) the potential benefit and utility of such decision and the application and scope of its remit, in both public and private law;
(g) the impact on judicial policy and on the future direction of such policy;
(h) the general importance to justice and the administration of justice of any such decision, including its value to legal certainty as measured against the social cost of the status quo;
(i) the resource costs involved in determining such issue, as judged against the likely return on that expenditure if applied elsewhere; and
(j) the overall appropriateness of a court decision given its role in the legal and, specifically, in the constitutional framework.
[83] The matters above mentioned as being material to the exercise of the court's discretion are indicative only and are not intended in any way to be exhaustive and may well have to be adjusted to reflect the particular circumstances of any given situation.� However, once all appropriate matters are established and their relevance identified, the conclusion of the resulting analysis in all cases should reflect the basic purpose of the rule and should be concordant with its underlying rationale.��
[84] In summary it can be said that, in light of the considerations stated above, the courts do not in principle try issues which are moot, notwithstanding that these may have been an important question of law in issue between the parties and it is only where there are a range of exceptional circumstances that the courts will exercise their discretion to do so."����������������������
53. In his judgment for this Court in Odum, O'Donnell C.J., having cited the above judgment of McKechnie J. with approval, deduced the following principles from the case law:
"31. First, the US approach, while the most well-developed jurisprudence on the concept of mootness, cannot however, be considered a direct guide to the decision in any case in this jurisdiction.� There are a number of important distinctions between the position in the US and that which applies here...
32. It follows that the US approach cannot be simply read across to this jurisdiction.� Instead, the jurisprudence of the US must...be approached with caution.� Indeed, it might be thought that the logic of the US approach would appear to be that where a judgment leads inevitably to a costs order, and where dismissal of the appeal would leave in place both the decision of the Court below as between the parties, and the judgment of the Court as a precedent more generally, that there would be a narrower scope for any doctrine of mootness.
33. Second, however, it is apparent that a core principle can be identified as justifying a principle of mootness in common law jurisdictions.� That principle is based on the importance in the common law system of the resolution of cases which can [be] characterised as present, live controversies.� As set out in Borowski ([1989] 1 SCR 342), this is central to the principle of mootness, because of the interlinked factors of a requirement of a full adversarial context for a legal decision; the management of scarce and expensive court resources; and in cases likely to become precedents, the desirability, and perhaps necessity, of avoiding purely advisory opinions.� The strength with which these factors will apply in a particular case will determine the issue of whether a trial or appeal is moot, and the related question of whether, even if moot, the trial, or appeal should nonetheless proceed.
34. Third, there is a close connection between the principles underlying standing, particularly constitutional claims, and mootness.� However, that does not mean that circumstances where a court considers that a claimant does not have sufficient standing to commence proceedings, will inevitably lead to a conclusion that if similar circumstances arise pending an appeal, that the appeal will be moot.� The position at the two points in time is not the same: once a case is decided and is the subject of an appeal, there will be a decision (which in some cases may be capable of being a precedent controlling other cases and decisions) and an order for costs, which in some cases can be substantial...
35. In the particular case of an appeal to this court, there is, moreover, the important factor that the court will have determined that the appeal involves an issue of law which can be said not only to be important, but to be of general public importance.� This means both that the issue is likely to recur (since it is general) and that it is almost inevitable that when it does occur, that it will not be possible to resolve it at any lower level than this court, and that leave to appeal to this court will in due course be necessary.� In such circumstances, the granting of leave to appeal raises at least a temporary question mark over the decision subject to an appeal and creates a degree of uncertainty about the law which in normal circumstances is the function of this court to seek to resolve and clarify as soon as possible.� Dismissal of an appeal in such circumstances has different consequences in law than the refusal of leave to commence proceedings which have not been determined, and accordingly it is not to be expected that the application of the same principles underlying the rules on both standing and mootness will lead to the same outcome in every case."
54. Section 27 of the 2005 Act, which as noted above is relied upon by the appellants, provides as follows:
"(1) Where an enactment is repealed, the repeal does not -
(a) revive anything not in force and not existing immediately before the repeal,
(b) affect the previous operation of the enactment or anything duly done or suffered under the enactment,
(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under the enactment..."
Application of the Principles
55. As per the two-step analysis set out by McKechnie J. in Lofinmakin, the first question is whether these appeals are now moot.� If moot, the second step would involve the exercise of a discretion whether to proceed to hear the appeals even though they are moot.
56. As regards the first question, I am satisfied that the Court below was correct in finding that these appeals are moot, as a result of the legislative amendments brought about by the 2024 Act.
57. Looking first at the position regarding K.E., IPAT determined that his application for international protection was inadmissible because the UK was a "safe third country", based on the designation of the UK as such under the 2020 Order.� That Order was subsequently revoked by the 2024 Act, prior to the Minister making any return order under s. 51A of the 2015 Act.� The UK was again designated as a "safe third country", for the purposes of the 2015 Act, by the 2025 Order.
58. During the oral hearing of these appeals, counsel for the appellants struggled to explain the status of the Minister's inadmissibility decision following the revocation of the 2020 Order in 2024, given that the said decision was based upon the operation of that Order.� In my opinion that decision did not continue, and could not have continued, to have any legal force after the revocation of the 2020 Order, and was not in some way revived by the 2025 Order, which order was made under an amended version of s. 72A of the 2015 Act.� As the Court below pointed out, such order could be the subject of further judicial review proceedings.
59. In the circumstances it seems to me that there will have to be new decisions on the admissibility of K.E.'s application for international protection, if it still subsists, or a new application by him which is subject to the new statutory provisions.� There is no longer a live controversy between the parties as to whether the previous inadmissibility decisions, taken under the previous version of the legislation, were legally valid.� As held by the Court below, even a decision in favour of the Minister on this appeal would have no practical impact or effect.� Thus, the appeal regarding K.E. has become moot as a result of the legislative amendments.
60. Turning to the position regarding F.O.M., while this case had progressed further than K.E.'s case in that the Minister had issued a return order under s. 51A of the 2015 Act in January, 2023, directing F.O.M. to return to the UK, the key point is that removal has not yet taken place.� Therefore, it seems to me, the Minister would now be obliged, in advance of removal, to carry out a new refoulement consideration under the amended version of s. 50A with the enhanced safeguards.�
61. While counsel for the appellants did not accept the above proposition during the oral hearing, he did accept that F.O.M. would be able to make new "change of circumstances" submissions to the Minister under s. 50A(3) of the 2015 Act based upon the additional protections brought about by the 2024 Act, and that the Minister would be obliged to consider same.� In my opinion, this in effect would achieve the same outcome, that the matter would ultimately be governed by the new statutory regime as opposed to the previous regime.�
62. In the circumstances it seems to me that there will again have to be new decisions by the Minister in the case of F.O.M., as to refoulement and/or as to making a return order.� Again, there is no longer a live controversy between the parties as to whether the previous decisions were legally valid.� Again, as held by the Court below, even a decision in favour of the Minister on this appeal would have no practical impact or effect.� Thus, the appeal regarding F.O.M. has also become moot as a result of the legislative amendments.�
63. In her judgment, with which the majority of the Court agree, Donnelly J. states (at para. 29) that the issue of whether the State is obliged by EU law to legislate to include the definition of serious harm set out in the Recast Procedures Directive must be viewed as a live controversy between these parties.� With respect, I cannot agree, in circumstances where the national legislation now includes that definition, irrespective of whether it arose out of an obligation under EU law or otherwise.�
64. Donnelly J. goes on to refer to para. 46 of the judgment of the Court below which, having cited the legislative amendments in the 2024 Act, stated as follows:
"Counsel for the appellants accepted that these statutory amendments mirrored or reflected the terms of the High Court judgment but strongly resisted any suggestion that the amendments amounted to an admission that the judgment of the High Court was correct.� However, it seems to me inescapable that if, in the future, either of the respondents are going to be returned to the UK as a safe third country such would involve consideration by the Minister of an additional principle provided for in Art. 38 of the Recast Directive.� A reconsideration by the Minister of the situations of both respondents would be inevitable.� This clearly raises the issue of mootness."
65. Donnelly J. states (at para. 29) that the "result of the Court of Appeal's finding is that all such future consideration must be undertaken as an obligation of EU law".� With respect, I would not agree with this analysis of the above passage from the judgment of the Court below, for the following reasons.
66. While Meenan J. did refer to consideration by the Minister of "an additional principle provided for in Art. 38 of the Recast Directive", and while a reading of this sentence taken alone might suggest that he was referring to future consideration having to be undertaken as an obligation of EU law, for my part I think that this is reading too much into those words.� Firstly, it is literally the case that the additional principle was originally "provided for" in Article 38 of the Recast Directive.� Secondly, I do not read Meenan J.'s judgment overall as finding that the Minister must consider the additional principle because it is an obligation of EU law.� It seems to me that the overall thrust of Meenan J.'s judgment is clear: that the Minister must consider the additional principle as a result of the legislative amendments brought about by the 2024 Act, irrespective of EU law (see para. 54 - 56).�
67. As regards the appellants' reliance on s. 27 of the 2005 Act, I agree with the Court below that this statutory provision is not of assistance to the appellants.� As stated by Meenan J. in his judgment for the Court below, the 2024 Act goes considerably further than repealing the relevant statutory instrument, as it also provides new and additional safeguards for the respondents which they are entitled to rely upon.
68. As set out above, the second step in the two-step approach set out by McKechnie J. in Lofinmakin would be whether, even though there has been a finding of mootness, this Court should still exercise its discretion to hear the appeals.� In circumstances where the majority of the Court find that the appeals are not moot, it is not necessary for me to express a view on the second question.