PS v The International Protection Appeals Tribunal and Ors

THE HIGH COURT JUDICIAL REVIEW [2026] IEHC 238 Record No. 2025/1303JR BETWEEN PS Applicant AND THE INTERNATIONAL PROTECTION APPEALS TRIBUNAL, THE MINISTER FOR JUSTICE, MIGRATION AND HOME AFFAIRS, IRELAND and the ATTORNEY GENERAL Respondents JUDGMENT of Ms Justice Miriam O’Regan, delivered on Monday the 27th day of April 2026. Issues 1. In this matter leave was afforded by order of the High Court of 3 October 2025 to maintain these proceedings on the basis of an amended statement of grounds which now comes before the court. 2 2. In prior proceedings before this Court dealing with an extension of time under SI 116/2017 (International Protection Procedures and Periods for Appeal Regulations, 2017) (“the 2017 Regulations”), Regulation 4, the Court has made a number of orders with appeals in respect thereof currently before the Court of Appeal. The relevant cases are GB v the International Protection Appeals Tribunal & Ors. [2025] IEHC 543; SMMZ v the International Protection Appeals Tribunal & Anor. [2026] IEHC 38 and YSA v the International Protection Appeals Tribunal & Anor. [2026] IEHC 39. Preliminary 3. Although a number of reliefs claimed by the instant applicant have already been the subject matter of the judgments aforesaid, at the opening of the hearing the applicant's counsel agreed that the applicant was proceeding on the basis of a constitutional claim only subject to the proviso that the applicant relies on written submissions in respect of other complaints made in the proceedings, in the event that it transpires the Court of Appeal overturns any one or more of the judgments aforesaid. 4. An injunction was granted on a temporary basis by the High Court on 28 November, 2025 which was subsequently extended to the date of hearing of this application and at the hearing the respondent agreed to continue such injunction until the delivery of judgment. 5. In addition the respondent accepts that the applicant non-national is entitled to rely on the provisions of Article 40.3 of the Constitution including in respect of fair procedures and a right to life. 6. Two decisions are impugned in the within proceedings namely: – (a) the decision of the International Protection Appeals Tribunal (“IPAT”) of 31 July 2025 refusing the applicant's application to extend time within which to appeal a decision of the International Protection Office (“IPO”) of 1 July 2025; and 3 (b) the decision of the Minister for Justice pursuant to s.50 of the International Protection Act 2015 dated 20 August 2025 together with the deportation order of same date both of which were sent to the applicant on 28 August 2025. 7. It is argued that the decisions of the Minister aforesaid were predicated on a valid international protection process and the applicant’s submission is to the effect that should the decision of IPAT of 31 July 2025 be condemned then the decisions of the Minister must also be condemned. Relevant Legal Provisions 8. Article 40.3 of the Constitution provides that: – “The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen. The State shall in particular by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen.” 9. Regulation 4(5) the 2017 Regulations provides: – “The Tribunal shall not extend the prescribed period except where it is satisfied that – (a) the applicant has demonstrated that there were special circumstances as to why the notice of appeal was submitted after the prescribed period had expired, and (b) in the circumstances concerned, it would be unjust not to extend the prescribed period.” Background 10. Assuming that E(v) of the statement of grounds, in referring to “the relevant provisions of SI number 116 of 2017”, refers to relief at D(iv) (otherwise the grounds would be wholly unparticularised) then the proceedings engage Article 40.3 of the Constitution relative to the provisions of Regulation 4(5) of the 2017 Regulations. 4 11. It is common case that the legislation provides for an accelerated process of determination in respect of international protection applicants who have come from a designated safe country of origin. Georgia has been so designated. 12. The applicant is a Georgian national born on the 16 May 1991. He is single without children or other family members residing in Ireland. He arrived in Ireland in April 2022 and applied for international protection on 11 April 2022. On 12 May 2022 the applicant signed a document acknowledging receipt of certain information including an information leaflet for applicants for protection in Ireland and a free legal aid information leaflet. The applicant was represented by solicitor at the hearing before IPO. 13. Under cover letter of 14 March 2023 he received an IPO decision declining to grant him international protection. 14. The same solicitors were engaged to appeal the IPO decision to IPAT. IPAT also declined to grant him international protection in a decision dated 26 July 2023 following which by decision of 19 March 2024 the Minister refused to grant him permission to remain. 15. Following the issue of a deportation order the applicant instructed his current solicitors, in a private client capacity, to make an application under s.22 of the 2015 Act to re-enter the international protection process based on new information. The s.22 application was granted on 24 September 2024. 16. Having been granted permission to reapply for international protection the applicant, without a solicitor, commenced the application process on 27 December 2024. He received a negative decision from the IPO under cover letter of 1 July 2025. The applicant states that he applied for legal aid to appeal the IPO’s decision dispatched under letter of 1 July 2025 on 8 July 2025 and on 14 July 2025 he was advised that the prior solicitor (not his current solicitor) who represented him under the Legal Aid Board Scheme was appointed to deal with the appeal of the second the IPO refusal. The applicant states that he attended this solicitor’s office 5 without appointment on 15 July 2025 and had a disagreement with the solicitor in relation to fees of his current solicitor. It is said that the applicant was advised that the solicitor would be in contact with him by email however the applicant states that he did not receive any such contact. This solicitor is not on notice of the within proceedings and no affidavit or communication has been received from the solicitor. Furthermore, there is no suggestion that the applicant made any further follow-up enquiries with the solicitor. 17. The applicant attended his current solicitor on 28 July 2025 and a notice of appeal together with an application for an extension of time within which to appeal under the provisions of Regulation 4(5) of the 2017 Regulations was lodged on 30 July 2025. Submissions 18. In submissions to secure an extension of time it was indicated that the applicant had some difficulty getting money together to instruct his current solicitor as he had a kidney problem which prevented him from working. It is submitted that “owing to financial difficulties he represented himself to the point of a first instance subsequent application decision” (the nature of the financial difficulties which might have prevented him from approaching the legal aid board, by email – being the approach made by him prior to the legal aid board’s email of 14 July, 2025 – between 24 September, 2024 and 27 December, 2024 is not addressed). Details as to the application for legal aid on 8 July 2025, the email from the Legal Aid Board of 14 July 2025, the meeting with the solicitor appointed under the Legal Aid Board Scheme of 15 July 2025, reference to the dispute which arose between that solicitor and the applicant and the fact that the promised email appointment was not received by the applicant are set out in the submissions. The applicant was compelled to call upon friends to assist him financially to reinstruct his current solicitor because he had been unable to work for some time due to kidney problems which emanated from an injury caused to him in a motor vehicle accident at Bagram Airbase while serving in Afghanistan. It is submitted that the above were the reasons for a late 6 lodgement of the appeal despite the efforts of the applicant who it is said acted expeditiously in the circumstances. It is said that the applicant faced some barriers in submitting his appeal on time and that such circumstances were beyond his control. It was submitted that it is in the interests of justice to grant the appellant an extension of time as if refused this could have the effect of breaching his right to an effective remedy and the principle of effectiveness and also could be in breach of other legislation including Article 40.3 of the Constitution. It is said that the applicant faced genuine difficulty in lodging his appeal and it was submitted that the appeal was entered two weeks beyond the statutory deadline. 19. In the impugned decision of 31 July 2025 the deadline for submitting the appeal being 15 June 2025 was noted as was the fact that the applicant did not dispute receiving IPO’s letter or that he was unaware of the deadline. It was indicated that the delay was one and a half times the period prescribed by law under secondary legislation as opposed to an administrative practice note. It is said that no information is given as to when he received the recommendation letter and noted that all applicants are given information on access to the Legal Aid Board. It is noted that there is no evidence or information that he was unaware of the availability of legal aid until 8 July 2025, and he was deemed to have received the IPO refusal on 4 July 2025 with no information given as to why he waited until the following week to engage with the Legal Aid Board. The decision notes that he said he had kidney problems rendering him unable to work but there is no information on the dates when this issue arose and while the impact on his capacity to work is noted the date and extent to which this rendered him incapable of actioning his appeal within the whole of the time period for an appeal and afterwards or otherwise by email or phone is not articulated. The kidney issues did not impede the applicant from giving instructions to solicitors previously and it appeared to IPAT that the applicant in essence had a fee dispute with the solicitor which does not disclose “special circumstances”. It is noted that between the 15th and 28th of July 2025 the applicant does not appear to have taken any steps 7 to action his appeal, engage with the Legal Aid Board or his assigned solicitor or his previous solicitors while aware that he was already out of time with no information being provided if he was in fact incapacitated from his kidney problem or when he discharged any outstanding fees. The Tribunal considered the explanation to be vague and lacking in detail and expressed the view that the applicant had not shown the necessary special circumstances to allow the Tribunal to extend the prescribed period. 20. Although not recorded in the extract of the applicant’s submissions in the statement of grounds, the submissions themselves did note at para. 27 thereof: – “The appellant has requested a letter from his GP to confirm this, and it is expected this will be released to him in the coming days, and it is intended to submit this to the Tribunal when it is to hand.” It is common case that such a letter from the GP was not furnished to the Tribunal or included in the papers in this judicial review application. 21. In the statement of grounds before the court relief D1 seeks an order of certiorari quashing the decision of 31 July 2025 refusing to extend the prescribed period in which the applicant may lodge an appeal. Thereafter further orders and declarations are sought and only one of same refers to the Constitution namely relief D4 which seeks: – “A declaration, if required, that regulation 4(5) of the International Protection Act 2015 (Procedures and Periods for Appeals) Regulations 2017 infringes the principle of legal certainty, and/or the applicant's right to an effective remedy under Article 47 of the Charter of Fundamental Rights and/or 40.3 of Bunreacht Na hÉireann.” 22. The issue of legal certainty and an effective remedy are not engaged in this application save and insofar as they arise under article 40.3 of the Constitution. There is no other relief engaging the Constitution sought in the statement of grounds. 8 Under the heading of legal grounds upon which the reliefs are sought, only ground E(v) engages Article 40.3, which provides: “The relevant provisions of SI number 116 of 2017, are in breach of the principle of effectiveness, and which obliges member courts to ensure that national remedies and procedural rules do not render claims based on EU law impossible in practice or excessively difficult to enforce. Further or in the alternative, same are a breach of Article 18 of the Charter and/or the right to good administration and/or Article 40.3 of Bunreacht na hÉireann and/or….” 23. Insofar as the applicant has sought to enlarge the scope of the constitutional claim made within the statement of grounds the respondent objects to such enlargement and relies on the decision of a AP v DPP [2011] 1 IR 729 to the effect that if a matter is not included in the statement of grounds then no leave is granted for such arguement and the court on the hearing of the judicial review simply does not have jurisdiction to deal with same. The respondent further argues that such extended constitutional grounds are not particularised in the statement of grounds and therefore in breach of O.84 of the Rules of the Superior Courts. 24. Accordingly, this judgment will deal with the constitutional issue raised in the statement of grounds for which leave was afforded without further commentary on any possible extension of the reliefs claimed. 25. The applicant argues that as part of the fair procedures guaranteed to him under Article 40.3 of the Constitution the respondent was obliged but failed to inform the applicant by notice in writing that his appeal did not set out reasons why the applicant was unable to bring the notice of appeal within the prescribed period and the Tribunal intended to reject the appeal on that basis and providing the applicant with an opportunity to make representations. The applicant was unable to point to any jurisprudence to support such a proposition. 26. Although the applicant does rely on the judgment of Gilligan J in the matter of OO v Minister for Justice [2018] 4 IR 426 (“OO”) and in particular paras. 18 to 21 thereof it is noted that at para.19 the court indicated that the duty of the decision-maker was to consider the 9 evidence prior to making a decision. Furthermore in the matter of Kouaype v Minister for Justice [2011] 2 IR 1, also referenced by the applicant in submissions, at para.28 thereof it was noted that in s.3 Illegal Immigrants (Trafficking) Act 1999 the only obligation on the Minister is to afford the person concerned an opportunity to make submissions and consider the statutory provisions so far as they appear or are known to the Minister. 27. In my view an assertion by the applicant to the effect that IPAT is obliged prior to making a decision on the extension of time application to revert to the applicant pointing out the shortcomings in his application and enabling an applicant an opportunity to make further representations, absent any such provision in the legislation and in the light of the jurisprudence above, does not comprise a valid basis for finding that such an obligation on IPAT does exist and on this basis the applicant has not discharged the onus of proof on him to establish that the decision is unlawful in this regard. 28. In oral submissions the following authorities were relied on by the applicant to the effect mentioned hereunder: – (a) Re Illegal Immigrants (Trafficking) Act 1999 [2000] 2 IR 360. The applicant relies on this matter to support the contention that non-nationals have similar procedural rights to citizens (accepted by the respondent) and its reference to the test identified at p.393 thereof which provides: – “The State has a legitimate interest in prescribing procedural rules calculated to ensure or promote an early completion of judicial review proceedings of the administrative decision concerned. However, in doing so, the State must respect constitutional rights and in particular that of access to the courts.” There is no argument presented as to how access to the Tribunal was denied. In this regard in or about the furnishing of an IPO negative decision literature is furnished in respect of a potential appeal - in addition to the documents which were already acknowledged by the applicant as having been furnished (see exhibit number two of the affidavit of John Moore 10 of 12 January 2026) being an information leaflet for applicants of international protection in respect of appeals procedures. Page 4 thereof deals with appeals and para. 4.2 thereof deals with late appeals. Insofar as the initial literature furnished to the applicant and acknowledged by him on the 12th of May 2022 is concerned this included a booklet wherein at s.5 thereof the appeals procedure is set out. It is further noted that once the current solicitors were instructed on 28 July 202, they made submissions to IPAT within 48 hours. It does not seem therefore that the time period within which to appeal taken together with the capacity in certain circumstances to enlarge the period in certain circumstances has been demonstrated to amount to a breach of the applicant's constitutional rights. (b) The applicant has relied on the case of OO aforesaid, and the finding that the decision- maker should consider evidence before making a decision. Given that in the events no letter was afforded at any time from the applicant's GP to confirm his kidney problem and the impact on ability to work, the impugned decision demonstrably deals with the submissions made. There does not appear to me to be any valid argument to the effect that the non-submitted GP report would have identified, potentially, matters affecting the right to life. Nor is it said that submissions made in respect of an extension of time were not considered. 29. The applicant has not countered the argument made by the respondent to the effect that the provisions of Regulation 4(5) (set out above) incorporates fair procedure and inbuilt flexibility in that although the time period within which to appeal was ten days nevertheless there was scope to extend this time period provided the applicant showed compliance with the provisions of Regulation 4(5). 30. Although the applicant in the statement of grounds does argue that it was wrong to decide there was no special circumstances disclosed in submissions this is a merits-based 11 argument not appropriate in a judicial review application. Furthermore, the applicant has not identified that portion of Regulation 4(5) which breaches any constitutional right of the applicant under Article 40.3 – if it is the case that the applicant is arguing that there should have been no restriction on an extension of time then this would set at nought any attempt to apply time limits notwithstanding that in the Re Illegal Immigrants (Trafficking) Bill 1999 matter the Supreme Court did acknowledge that there was a public policy in dealing with applications as early as possible and dealing with the validity of determinations as soon as possible. 31. In the circumstances, the applicant has not demonstrated that Regulation 4(5) of the 2017 Regulations has breached a constitutional right of the applicant under Article 40.3. 32. For the reasons set out above the applicant’s claim for certiorari or declaratory relief is refused. Costs 33. As this judgment is being delivered electronically, I shall address the issue of costs. Given the respondents has been entirely successful, it is my provisional view that they should be entitled to his costs, to be adjudicated in default of agreement. As the parties have not had an opportunity to make submissions as to costs, I shall allow the applicant to make written submissions of not more than 1,000 words within ten days of this judgment being delivered, should they disagree with the order proposed. If such submissions are made, filed and served within that 10-day period, the respondents shall be entitled to make, file and serve submissions in response, of not more than 1,000 words within a further period of one week. In default of such submissions being filed, the proposed order will be made.