A strict s.5(2) clock and a substantive s.49 duty: IPAT findings on risk must be expressly weighed in permission-to-remain decisions (A.B. v International Protection Appeals Tribunal & Minister [2025] IEHC 572)

A strict s.5(2) clock and a substantive s.49 duty: IPAT findings on risk must be expressly weighed in permission-to-remain decisions

Introduction

In A.B. v International Protection Appeals Tribunal & Minister for Justice, Home Affairs and Migration [2025] IEHC 572, the High Court (Phelan J.) addressed two recurrent themes in Irish international protection litigation: (i) the unforgiving nature of the 28‑day time limit for judicial review under s.5(2) of the Illegal Immigrants (Trafficking) Act 2000, and (ii) the quality of decision-making under s.49 of the International Protection Act 2015 (permission to remain), particularly where the International Protection Appeals Tribunal (IPAT) has accepted that an applicant has suffered past persecution and faces a well‑founded fear of future harm.

The applicant, a Georgian national, sought to challenge the IPAT’s affirmance of the refusal of refugee and subsidiary protection status, and the Minister’s refusal of permission to remain under s.49, together with a proposal to make a deportation order. The IPAT had largely accepted the applicant’s credibility, found past harm and a well‑founded fear of future persecution, but concluded there was no Convention nexus and that effective State protection was realistically available in Georgia. The Minister later refused permission to remain.

The key issues were:

  • Whether the High Court should extend time to permit a judicial review of the IPAT decision when the applicant waited for the s.49 decision before filing proceedings.
  • Whether the IPAT’s approach to State protection and Convention nexus was irrational or unlawful.
  • Whether the refusal of an oral hearing in an accelerated appeal was unfair or irrational.
  • Whether the s.49 permission-to-remain decision lawfully addressed the applicant’s humanitarian case and Article 8 ECHR, including the significance of IPAT’s findings on risk.

Summary of the Judgment

Phelan J. reinstated proceedings that had been struck out for non‑appearance, but refused an extension of time to challenge the IPAT decision under s.5(2) of the 2000 Act. Waiting for the s.49 permission-to-remain decision was held not to be “good and sufficient reason” to delay a judicial review of a final protection decision.

For completeness, the Court considered whether any of the pleaded grounds against the IPAT decision reached the “substantial grounds” threshold. It held:

  • There is no inconsistency in finding a well‑founded fear of persecution while also finding that effective State protection exists; these are distinct components of the refugee definition (following T.A. v IPAT [2023] IEHC 390). The contrary ground was not arguable.
  • The attempt to derive a Convention nexus from alleged political connections (by analogy with the CJEU’s “Intervyuirasht organ na DAB pri MS” decision, C‑621/21) was a “significant over‑reach” and unarguable on the evidence.
  • While the IPAT’s “unrealistic” assessment of the availability of State protection was arguably under‑reasoned given the country of origin information (COI) filed, any such challenge was out of time.
  • The refusal of an oral hearing was not shown to be unfair or irrational on the facts; any broader argument about a duty to notify refusal of an oral hearing before determining the appeal was, in any event, out of time.

Crucially, the Court granted leave to challenge the Minister’s refusal of permission to remain under s.49(3), finding a reasonable argument that the decision failed to substantively grapple with the IPAT’s acceptance of past persecution and a well‑founded fear of future harm as humanitarian considerations. Given this distinctive feature, the case would not simply be adjourned into a “holding list” to await lead judgments in similar s.49 challenges. Leave was therefore granted to seek relief against the s.49 decision on specified grounds; leave was refused on all other grounds. Costs of the leave application were reserved; no order was made on the reinstatement costs.

Analysis

Precedents and authorities cited

  • Section 5 of the Illegal Immigrants (Trafficking) Act 2000; time and threshold:
    • McNamara v An Bord Pleanála [1995] 2 ILRM 125 and In Re Illegal Immigrants (Trafficking) Bill 1999 [2000] 2 IR 360 (at 395): “Substantial grounds” at leave stage means grounds that are “reasonable”, “arguable” and “weighty”, not “trivial or tenuous”.
  • Well-founded fear and State protection:
    • T.A. v IPAT [2023] IEHC 390 (Heslin J.): clarifies that well‑founded fear and State protection are distinct components of the refugee definition: a person may fear persecution yet still fail to qualify for refugee status if effective State protection is available.
  • Convention nexus via failure of protection:
    • Intervyuirasht organ na DAB pri MS (C‑621/21), CJEU: the Court recognised that, in certain contexts (notably gender-based violence), the Convention “nexus” may be established through the State’s failure to protect a “particular social group” (e.g., women), even if private actors are the immediate persecutors. Phelan J. held that the applicant’s attempt to transpose this to a private land dispute allegedly influenced by political connections was unsupported by evidence and fundamentally inapposite.
  • Permission to remain (s.49 IPA 2015) and Article 8 ECHR:
    • A. (Albania) v Minister for Justice and Equality [2023] IEHC 692 (Simons J.) and H.K. (Western Sahara) v Minister for Justice and Equality [2022] IECA 141 (Donnelly J.): authorities signalling the need for a genuine, individualized humanitarian assessment and proportionality/Article 8 analysis in s.49 decisions. The Court aligned the applicant’s challenge with this jurisprudence.
  • Accelerated appeals and oral hearings:
    • Section 72 IPA 2015 and S.I. No. 121/2018 designate Georgia as a safe country of origin; s.43(b) confers a discretion, not a right, to an oral hearing in accelerated appeals where proper in the interests of justice.

Legal reasoning

1) Time limits under s.5(2) of the 2000 Act: “awaiting” a s.49 decision is not “good and sufficient reason”

The Court reinstated a struck-out motion but focused squarely on the statutory time bar. Proceedings were issued almost two months after the IPAT decision notification; the applicant’s sole explanation for the delay was that he was awaiting the permission-to-remain outcome to mount a “comprehensive challenge” to both. Phelan J. held that:

  • This is “not” a good and sufficient reason under s.5(2). Each decision is a distinct legal act at a different stage of the statutory process; the applicant could have timely challenged the IPAT outcome and later applied to amend to include a challenge to any subsequent decision.
  • A failure to address the extension-of-time problem in submissions, coupled with non‑compliance with listing practice, reflected a “cavalier approach” to a statutory limit that the Court is obliged to enforce.
  • The Court therefore refused leave to seek judicial review of the IPAT decision for want of a timely application and for lack of good and sufficient reason to extend time.

2) Well‑founded fear and availability of State protection can lawfully co‑exist

On the merits (addressed obiter), the Court reaffirmed that it is not irrational to accept that an applicant has a well‑founded fear of persecution while concluding that effective State protection exists. Drawing on T.A. v IPAT, Phelan J. underscored that “risk” and “protection” are conceptually distinct elements of the refugee definition. An argument that acceptance of well‑founded fear logically precludes a finding of State protection fails at the threshold.

3) Convention nexus: political connections in a private land dispute are not enough

The IPAT accepted past harm and a well‑founded fear but found no Convention nexus: the dispute was grounded in a private property conflict, not political opinion or membership of a particular social group. The applicant sought to rely on C‑621/21 (domestic violence context) to argue that a nexus may be found where State protection fails due to the victim’s membership of a protected group. Phelan J. held this analogy did not fit:

  • No claim of persecution for a Convention reason was advanced (e.g., political opinion);
  • The applicant’s posited “group”—landowners whose land is appropriated by persons of influence—does not readily meet the statutory definition of “particular social group” (s.8(1)(d) IPA 2015);
  • There was no evidence of systemic impunity in Georgia for crimes by persons with political connections sufficient to transpose the CJEU’s reasoning.

The challenge to the IPAT’s nexus analysis was therefore unarguable.

4) State protection reasoning: a missed arguable point, but out of time

The IPAT characterised the applicant’s claim that police/judicial protection would fail due to political connections as “unrealistic”. Phelan J. indicated that, given the COI filed (including references to corruption and access-to-justice issues), a more explicit engagement might arguably have been required to support the “unrealistic” conclusion. This could have reached the substantial grounds threshold—but the challenge was out of time, so the point could not avail the applicant.

5) Oral hearing in an accelerated appeal: bare requests will not suffice

Georgia’s designation as a safe country of origin triggers accelerated appeal procedures without an automatic oral hearing; the IPAT’s discretion under s.43(b) turns on what is proper in the interests of justice. The applicant’s request for an oral hearing was cursory and did not identify what material evidence would be added beyond submissions and prior interviews. In circumstances where the IPAT largely accepted his credibility, any prejudice from the absence of an oral hearing was not apparent. While the Court noted that a broader procedural question—whether a refusal of an oral hearing must be communicated before deciding the appeal—is pending in other cases where leave has been granted, any such ground here was again out of time.

6) Permission to remain (s.49): a duty to grapple with IPAT’s accepted risk findings

The Court granted leave to challenge the Minister’s s.49 refusal. Two aspects were pivotal:

  • The Minister’s 21‑page decision reproduced the IPAT’s findings but did not expressly consider whether the IPAT’s acceptance of past persecution and a well‑founded fear of future harm generated humanitarian considerations that should be weighed under s.49(3) (and Article 8 ECHR). This omission raised a substantial ground of challenge.
  • Although the Court recognised many similar s.49 challenges are awaiting determinations in lead cases (e.g., A. (Albania) and H.K.), this case is distinct because the IPAT accepted well‑founded fear. That unique factual feature could affect the s.49 balancing in a way not necessarily resolved by the lead judgments. The Court therefore proceeded to grant leave rather than consign the matter to a holding list.

In short, where IPAT has accepted that an applicant has suffered past persecution and faces a well-founded fear—even without a Convention nexus—those findings are potentially powerful humanitarian considerations that must be expressly identified, weighed, and justified within the Minister’s s.49 analysis and any accompanying Article 8 proportionality assessment.

Impact and practical significance

A. Procedural discipline under s.5(2): no tactical waiting

The decision sharpens the procedural message: applicants cannot “wait and see” the outcome of a later, distinct decision (such as a s.49 review) before challenging a final IPAT decision. If a later decision arrives, the existing proceedings can be amended. Practitioners should:

  • Issue within 28 days of notification of the impugned decision;
  • Prepare to amend proceedings rather than delay issuing to bundle multiple decisions;
  • Address any extension-of-time application explicitly and substantively in submissions.

B. Substance of protection law: risk vs protection reaffirmed

The Court’s endorsement of T.A. v IPAT consolidates the orthodoxy that acceptance of a well‑founded fear and a finding of available State protection are compatible. Applicants challenging State protection findings should target the quality of the tribunal’s reasoning and its engagement with COI, rather than arguing a conceptual incompatibility.

C. Convention nexus: limits of the CJEU’s C‑621/21 reasoning

The attempt to analogise a gender-based violence paradigm to a private land dispute with alleged political connections failed for lack of fit and evidence. The judgment signals that importing a nexus through State failures of protection requires cogent evidence of systemic, group‑based non‑protection, and a group that meets the statutory definition.

D. Oral hearings in accelerated appeals: particularise the request

Practitioners should specify why an oral hearing is necessary—what material evidence will be given, why it was not previously adduced, and how it bears on credibility or disputed facts. Bare assertions that credibility is “in issue” will rarely suffice, especially where the IPAT has already accorded the applicant the benefit of the doubt.

E. s.49 permission to remain: IPAT’s risk findings must be weighed

The judgment meaningfully advances s.49 jurisprudence by emphasising that:

  • Where IPAT accepts past persecution and a well‑founded fear of future harm, the Minister must demonstrate, on the face of the s.49 decision, an active engagement with those findings as humanitarian considerations.
  • Article 8 proportionality should reflect any accepted risks on return and explain how those risks interact with public interest factors.
  • Template recitals of IPAT reasoning without an explicit weighing exercise may ground a substantial challenge.

Complex concepts simplified

  • “Substantial grounds” at leave stage: A higher filter in immigration JR under s.5(2) of the 2000 Act. The applicant must show an arguable, weighty point of law or process; trivial or tenuous arguments will not pass.
  • Well‑founded fear vs State protection: To qualify as a refugee, an applicant must show both a risk of persecution and that their State cannot or will not protect them. The two are linked but distinct. Acceptance of risk does not automatically mean protection is unavailable.
  • Convention nexus: Refugee status requires that persecution is “for reasons of” race, religion, nationality, political opinion, or membership of a particular social group. If private actors are responsible, a nexus can sometimes be shown through State failure to protect certain groups—but only with solid evidence and a qualifying “group.”
  • Accelerated appeals and oral hearings: For safe‑country cases, appeals may be decided without an oral hearing. The IPAT may nonetheless grant one where proper in the interests of justice. A request should be concrete and explain what new, material oral evidence is proposed.
  • Permission to remain (s.49 IPA 2015): A discretionary, humanitarian form of leave considering a range of factors (s.49(3)), including health, family ties, integration, and risks on return, with an Article 8 ECHR proportionality assessment. Where IPAT has accepted a well‑founded fear of harm, the Minister must show how that accepted risk was weighed.

Conclusion

A.B. delivers a dual message: procedurally, the Court will police s.5(2) time limits strictly—litigants cannot delay a judicial review of an IPAT decision while awaiting a later s.49 outcome. Substantively, the decision adds important contour to s.49 practice: where IPAT has accepted past persecution and a well‑founded fear of future harm, those findings must be explicitly weighed as humanitarian considerations in the Minister’s permission‑to‑remain assessment, alongside a transparent Article 8 proportionality analysis. Failure to do so can cross the “substantial grounds” threshold at leave stage.

For protection applicants and decision-makers alike, the case underscores the need for:

  • Timely, procedurally compliant litigation strategy (issue first; amend later if necessary);
  • Substantive engagement with COI when assessing State protection;
  • Carefully particularised requests for oral hearings in accelerated appeals;
  • Individualised, reasoned s.49 decisions that grapple with all material humanitarian factors, especially where IPAT has already accepted risk on return.

Ultimately, A.B. tightens procedural discipline while elevating the quality and transparency expected of s.49 permission‑to‑remain decisions in the shadow of IPAT’s factual risk assessments.

Case Details

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