Cross-examination in Judicial Review where Credibility Drives Standing and Extension of Time
1) Introduction
In Z. M. v The Minister for Justice, Home Affairs and Migration (Approved) [2026] IEHC 513,
the High Court (Phelan J.) ruled on an interlocutory application by the Minister under
Order 41 Rule 1 of the Rules of the Superior Courts to cross-examine the applicant on
affidavit evidence in judicial review proceedings.
The applicant, a Pakistani national, entered Ireland on a student permission (2018), received a
s. 3 Immigration Act 1999 “proposal to deport” notification in September 2021, and was later served
with a deportation order in June 2023. He sought to challenge both (including the 2021 notice long after
the statutory time limit) relying on an argument that the “voluntary departure” option was unlawfully framed,
particularly the reservation that “except in very exceptional circumstances” a deportation order would not be made.
The Minister resisted the challenge as out of time and asserted that the proceedings were an attempt to
“piggyback” on KA v. Minister for Justice [2023] IEHC 556, contending that the applicant was not genuinely
confused in 2021 and lacked a real, personal basis to complain (standing / jus tertii).
The immediate issue for the Court was whether it was necessary and fair to permit cross-examination in order
to resolve a material credibility dispute bearing on (i) standing and (ii) the claim for an extension of time
under s. 5(2) of the Illegal Immigrants (Trafficking) Act, 2000.
2) Summary of the Judgment
The Court granted the Minister leave to cross-examine the applicant, but narrowly confined to specific topics:
(a) the applicant’s claimed confusion about the 2021 notification; (b) whether he might have chosen voluntary
departure if the option had been clear; and (c) his claim that he sought and received legal advice in 2021 that
he could not challenge the notification at that time.
Phelan J. emphasised that cross-examination in judicial review is rare, but concluded—“not without hesitation”—
that fairness required an opportunity to test affidavit assertions where the trial court might otherwise feel constrained
(per Ras Medical) to accept untested sworn evidence on matters central to extension of time and standing.
3) Analysis
3.1 Precedents Cited
Ras Medical Ltd. v. The Royal College of Surgeons in Ireland [2019] IESC 4
This was the controlling authority. The High Court applied the Supreme Court’s settled test that cross-examination may be
permitted where there is a clear, genuine, and material dispute of fact (or credibility issue) that cannot fairly be
resolved on affidavit and is material to the final determination.
Crucially, Phelan J. relied on the principle articulated by Clarke J. (para. 112) that it is inappropriate for a court to
reject sworn affidavit evidence by reference to other affidavit evidence or documents without giving the deponent an
opportunity to address the challenge—placing the onus on the party disputing credibility to seek measures such as cross-examination.
Irish Bank Resolution Corporation Ltd v. Moran [2013] IEHC 295
The decision was cited for the proposition that the party seeking cross-examination bears the burden of showing a probable, relevant
conflict on affidavit and that the matter cannot justly be determined without cross-examination.
Although not determinative, KA was practically important. The Minister argued that the applicant’s affidavits echoed KA
and that the timing suggested opportunism. Phelan J. treated KA as demonstrating a litigation risk: in a similar “confusion”
dispute, the Court accepted untested affidavit averments (including on informed consent), and the Minister’s submissions alone were
insufficient to dislodge the deponent’s credibility.
The High Court distinguished the factual context: in KA the challenge was raised promptly (only a short extension required),
whereas here the delay was considerable and the applicant had made contemporaneous submissions to the Minister without raising confusion.
That difference both (i) strengthened the Minister’s credibility challenge and (ii) made the extension-of-time inquiry central.
JFM v. The Minister for Justice, Home Affairs and Migration [2026] IEHC 272
The applicant argued that JFM suggested cross-examination should not be ordered. Phelan J. rejected that analogy: JFM
concerned cross-examination on a costs issue (consequential/interlocutory), whereas the credibility disputes here went to
matters bearing directly on entitlement to substantive relief (standing and extension of time), changing both relevance and proportionality.
3.2 Legal Reasoning
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Identification of the decision-points: The Court framed the trial issues as (i) whether the proceedings were out of time
and whether “good and sufficient reason” existed to extend time under s. 5(2), and (ii) whether the applicant had standing, given the
Minister’s contention that the applicant’s alleged confusion was not genuine and that the claim was effectively derivative (jus tertii).
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Materiality of the disputed facts: The Minister sought to test the applicant’s state of mind in 2021 and the late-emerging claim
that he sought legal advice then and was told a challenge could not be brought. The Court held those matters were potentially material because:
- they could influence whether time should be extended (the advice narrative being relied upon as an explanation for inaction); and
- they could influence standing and discretionary relief by demonstrating (or undermining) genuine confusion and deprivation of an informed choice.
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Why documents and submissions were not enough: The Minister had “objective” points (delay, contemporaneous correspondence, lack of
corroboration, similarity to KA, timing), but Phelan J. accepted that a trial court might still be reluctant to disbelieve sworn testimony
on personal knowledge without cross-examination—precisely the procedural caution underscored by Ras Medical.
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Fairness and proportionality: The order was justified to avoid litigation prejudice to the Minister if an extension of time were
considered plausible and the Court were left with only untested, self-referential affidavit claims. The Court therefore fashioned a
limited, discrete cross-examination to match the issues driving the extension/standing analysis.
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No pre-judgment of the merits: The Court stressed it made no finding on whether the legal-advice explanation could amount to “good and
sufficient reason”; it was enough that the explanation was relied upon and might materially influence the trial judge’s conclusions.
3.3 Impact
While framed as an interlocutory ruling, the decision has practical significance in immigration judicial review and more generally:
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Credibility-driven leave to cross-examine is available even where delay appears strong: The Court accepted that, notwithstanding
the Minister’s argument that the case must fail on delay, cross-examination may still be justified where the applicant’s credibility is being
relied upon to bridge that delay (e.g., advice-based explanations).
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Standing and “piggybacking” disputes can justify cross-examination: Where a respondent alleges the applicant is effectively adopting
another litigant’s complaint (jus tertii), and the applicant’s own state of mind and choices are central to whether they were affected,
cross-examination may be proportionate and necessary.
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Operational lesson from Ras Medical in judicial review practice: The ruling reflects a cautious trend—where a party wishes the
court to reject affidavit evidence as unreliable, it may be necessary to seek cross-examination rather than rely on submissions and documentary inference alone.
4) Complex Concepts Simplified
- Order 41 Rule 1 (RSC) cross-examination on affidavit
-
A mechanism allowing a party to question (in court) a person who has given evidence by affidavit, typically to resolve material factual conflict
or credibility concerns that cannot fairly be resolved on paper.
- Judicial review (JR)
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A procedure to challenge the lawfulness of decisions/actions of public bodies. It is usually determined on affidavit and documents; oral evidence
is exceptional, which is why cross-examination is “rare”.
- Extension of time: “good and sufficient reason” (s. 5(2), 2000 Act)
-
Certain immigration-related judicial reviews have short time limits. To bring a late challenge, an applicant must show a legally adequate reason
for the delay. If the reason depends on contested personal assertions (e.g., advice received), credibility may matter.
- Standing and jus tertii
-
Standing concerns whether the applicant is sufficiently affected to bring the case. A jus tertii objection alleges the applicant is
improperly asserting someone else’s rights/complaint rather than their own. Here, the Minister said the challenge was derivative of KA.
- “Informed consent” to voluntary departure
-
The notion (not finally determined in this ruling) that choosing to leave voluntarily must be a real, informed choice—so confusion about legal
consequences may be legally relevant to fairness and validity of process.
5) Conclusion
[2026] IEHC 513 reinforces that, although exceptional in judicial review, cross-examination may be ordered where a respondent demonstrates
a real, material credibility dispute that bears directly on the court’s ability to decide threshold questions such as extension of time and
standing. The judgment illustrates a pragmatic application of Ras Medical: where sworn assertions on personal knowledge may otherwise
be difficult to reject fairly, and where objective features create a sound basis for doubt, a limited cross-examination can be a proportionate tool to
ensure the court decides the case on the “real facts”.