Imminent Medico‑Legal Evidence and the Legality of Removal: Liberal Amendment and a Tightly‑Controlled Injunction Pending Trial

Case: S.H.E. v The International Protection Appeals Tribunal and Ors (Approved) [2026] IEHC 464

Court: High Court of Ireland (Judicial Review)  |  Judge: Ms. Justice Siobhán Phelan  |  Date: 13 July 2026

Procedure: Ex tempore ruling on (i) leave to amend Statement of Grounds to add challenges to a deportation order and a s. 50 refoulement decision, and (ii) interlocutory injunction restraining deportation pending determination of the proceedings.

1. Introduction

The applicant, an Egyptian national, entered the international protection system in January 2026. His claim featured allegations of serious ill-treatment while detained in Libya, including sexual violence and burning to his cheek, and a consequential fear on return to Egypt (notably in the context of conscription-related medical examination). He also reported significant mental health symptoms including suicidal ideation.

A central factual and procedural thread was the absence of medical evidence within the protection process. The applicant’s legal representatives invoked s. 23 of the International Protection Act 2015 (medical examination/medico-legal reports) but the Tribunal refused to direct a medical assessment, and adverse credibility findings were made without such evidence. Later, a medico-legal report (“MLR”) by Dr. Giller (dated 29 April 2026) was obtained, but was not promptly disclosed to the Minister or the Court at the leave stage. Meanwhile, a deportation order and s. 50 refoulement decision issued on 22 April 2026 (communicated 23 April 2026).

The immediate urgency arose because removal arrangements were advanced and the applicant sought (a) to expand existing judicial review proceedings to include the removal measures and (b) an injunction to prevent deportation pending trial.

Core issues

  • Amendment/out-of-time challenge: whether late amendment to add challenges to the deportation order and s. 50 decision should be permitted given delay and the statutory time-limit regime.
  • Interim protection: whether the Okunade balance of justice required a stay on deportation, in circumstances of a prima facie valid deportation order, safe country designation, alleged public interest concerns, and medical evidence suggesting suicide risk on imminent removal.

2. Summary of the Judgment

  • Leave to amend granted: The Court permitted amendment of the Statement of Grounds to add challenges to the deportation order and the s. 50 refoulement decision, and granted leave to seek judicial review on those added grounds.
  • Interlocutory injunction granted (non-open-ended): The Court restrained deportation pending determination of the proceedings or further order, signalling it would be a “tightly controlled” order with expedited directions and liberty to apply.
  • Important caveat: The Court emphasised that mere notification of an anticipated MLR will not ordinarily oblige deferral of removal decisions; the result turned on the proximity of the expected report, the nature of allegations, and the credible risk of significant harm.
  • Costs/conduct flagged: The Court expressed serious concern about the standard of representation and lack of candour/completeness at the leave stage, indicating these failings might affect costs.

3. Analysis

3.1 Precedents cited and their role

Habte v. Minister for Justice and Equality [2019] IEHC 47

The Court treated Habte as the key authority on amendment of judicial review pleadings where the amendment is sought after expiry of the usual statutory time limit. Two aspects mattered:

  • Liberal amendment jurisdiction: Because proceedings were already in being, the Court accepted (following Habte) that it was not necessary to demonstrate “substantial grounds” for an extension of time in the way that would be required for a freestanding out-of-time initiation. Delay remained relevant, but was not automatically fatal.
  • Inadvertence by lawyers: Habte (drawing on Keegan v. GSOC) allows that simple inadvertence by legal advisers may sometimes explain delay in an amendment context.

Applying those principles, Ms Justice Phelan accepted the delay explanation was “not a strong one”, but refused to let procedural defaults obscure the “interests of justice” where allegations included torture/ill-treatment, mental health deterioration, and potential refoulement.

Keegan v. GSOC [2012] 2 I.R. 570, [2012] IESC 29

Referenced via Habte, Keegan underpinned the proposition that lawyer inadvertence can, in an appropriate case, be an acceptable explanation for procedural default. The Court did not treat this as a carte blanche; rather it was one factor enabling the Court to consider substance notwithstanding poor litigation practice.

Okunade v. Minister for Justice, Equality and Law Reform [2012] 3 I.R. 152, [2012] IESC 49

Okunade provided the controlling framework for interim injunctions in deportation contexts:

  • Threshold: an arguable case (here, the proceedings already met the higher “substantial grounds” threshold on existing grounds; the Court also found substantial grounds for the new removal-related grounds).
  • Balance of justice / greatest risk of injustice: with weight for the orderly implementation of prima facie valid measures and the public interest in immigration control, but also with heightened sensitivity where there is a credible basis for a real risk of significant harm on deportation.

The Court quoted/relied on Okunade to the effect that where there is a credible basis for a real risk of significant harm on deportation, “very weighty considerations indeed” are required to refuse interim relief.

E.L. (Georgia) v. IPAT [2025] IEHC 690

This authority was invoked to support the proposition that it may be unlawful to proceed to decision where a medico-legal report is imminent and centrally relevant. The High Court treated it as reinforcing the applicant’s argument that the decision-maker may have been required, on these facts, to engage with (and potentially await) the promised MLR.

HID, BA v Refugee Applications Commissioner & Ors. (Case C-175/11)

The Court relied on the CJEU’s guidance that accelerated/prioritised procedures must still preserve core procedural guarantees and afford sufficient time to gather and present necessary material, so as to ensure a fair and comprehensive examination and avoid exposing an applicant to danger in the country of origin. This was material to:

  • the critique of a process that proceeded to finality without medical evidence in an accelerated appeal context; and
  • the assessment that the proximity of the expected MLR to the removal decisions raised a real legal question about the sustainability of the process.

J.V.V.M. v. Minister for Justice [2025] IEHC 506

The Minister relied on public interest considerations including the orderly execution of a deportation order. The Court distinguished the case from J.V.V.M. on the basis that (despite serious shortcomings) this was not a paradigm “11th-hour” or “drip-feeding” case: the applicant had instituted judicial review in time against the protection/permission-to-remain refusals, and the proceedings were extant when removal became imminent.

3.2 Legal reasoning

(A) Amendment: interaction of time limits, delay, and “substantial grounds”

The proposed new challenge (to the deportation order and s. 50 decision) was subject to s. 5 of the Illegal Immigrants (Trafficking) Act 2000 (as amended), which imposes a strict time limit and requires “substantial grounds”.

However, because the applicant sought to add the removal decisions by amendment (not by initiating fresh proceedings), the Court applied Habte to hold that it was not necessary to establish substantial grounds for an extension of time as a distinct requirement; rather, delay remained relevant to discretion. The Court nonetheless rigorously criticised:

  • the failure to inform the Court at the leave stage of the deportation order and s. 50 decision, despite service on the applicant and (by registered post) the solicitors;
  • the failure to deploy the MLR after it was received; and
  • broader failures of candour and case presentation (including omissions about relevant COI and scarring).

Crucially, the Court refused to let those defaults become determinative where the substance raised potentially grave consequences (mental health deterioration and refoulement risk) and where the amendment was materially “consequential” on the existing challenge rather than a wholly new cause of action.

(B) The “imminent MLR” point: not a general duty, but a fact-sensitive legal question

A key analytical move was the Court’s careful narrowing of the principle it was prepared to recognise at interlocutory stage:

  • The Court did not hold that an applicant can indefinitely stall removal by stating that evidence may be forthcoming.
  • The Court did not hold that the Minister must await an MLR in every case.
  • The Court did hold that on these facts—where an MLR was expressly foreshadowed by a holding letter, expected within a short period, and potentially central to credibility, risk, and mental health—there was a real legal question whether proceeding to deportation/refoulement decisions without engaging with that imminence was lawful.

This reasoning also interacted with the Court’s view of the case as a “continuum” of decision-making: if substantial grounds existed to challenge earlier refusals partly on the absence of medical evidence and handling of the s. 23 mechanism, it was at least arguable that the later removal measures—predicated on and adopting earlier credibility findings—were vulnerable on the same axis.

(C) s. 23 and systemic significance

While not finally determining the merits, the ruling is notable for its explicit observation that issues around the Minister’s implementation of s. 23—including the existence (or absence) of a panel of medical practitioners contemplated by s. 23(3)—were arising with increasing frequency, potentially of “systemic significance”. The Court suggested that the Chief State Solicitor’s Office should seek case-management directions in the Asylum List to progress determination of that issue at an appropriate opportunity.

This is an important judicial signal: although framed as an observation, it indicates that repeated recurrence may justify expedited, structured litigation to clarify the operational legality of s. 23 practices.

(D) Injunction: balancing “orderly immigration control” against “risk of significant harm”

On the Okunade balance, factors weighing against relief included:

  • prima facie validity of the deportation order;
  • Egypt’s designation as a safe country of origin under the International Protection Act 2015 (Safe Countries of Origin) (Amendment) (No. 2) Order 2024 (S.I. No. 327/2024);
  • State expenditure and operational arrangements for imminent removal;
  • serious alleged misconduct in IPAS accommodation (treated as a case-specific public interest factor, while not factually adjudicated at this stage); and
  • delay and procedural failures by the applicant’s side.

Factors favouring relief included:

  • the proceedings were already extant and (unlike some “last minute” cases) not initiated at the final hour;
  • removal could render the proceedings practically nugatory;
  • the MLR provided a credible basis for asserting a real risk of serious, rapid, irreversible mental health decline and possible death if deportation became imminent; and
  • the underlying allegations (sexual violence, stigma-related harm, and asserted risk on return) were of a kind that, if arguably established, fall within the “very weighty” harm category referenced in Okunade.

The Court also noted a practical litigation-management point: time-limited undertakings, if not clearly communicated as temporary with an intention to deport, can contribute to last-minute injunction applications; clarity is desirable to permit orderly court applications.

(E) s. 3(11) Immigration Act 1999 as an alternative remedy

The Minister argued that because the MLR post-dated the removal decisions (and was not before the Minister at the time), the proper route was a s. 3(11) application to revoke/amend the deportation order based on changed circumstances/new material.

The Court accepted there was “considerable force” in that submission and warned against converting post-decision evidence into a ground of invalidity too readily. Nonetheless, it treated the MLR as not wholly unforeseeable (given the holding letter and short timeline) and granted interim relief while also indicating that any s. 3(11) application, if to be made, should be made promptly and not held in abeyance pending judicial review.

3.3 Impact and significance

Practical takeaways likely to influence future cases

  • Fact-sensitive “imminent MLR” principle: The judgment supports an argument that where a medico-legal report is expressly foreshadowed, genuinely imminent, and central to credibility/risk/mental health, decision-makers may be required to engage with that imminence before moving to final removal measures—especially in accelerated contexts. The Court’s explicit caveat limits overextension of this point.
  • Continuum reasoning: Where earlier protection-stage legality is under substantial grounds challenge (e.g., around medical evidence and investigative obligations), later s. 50/deportation steps that rely on the same credibility findings may be arguable targets for amendment and interim restraint.
  • Amendment remains liberal—but not cost-free: Serious procedural failings may not bar amendment where justice requires merits to be heard, but they can (i) weigh against interim relief, (ii) be relevant to costs, and (iii) attract judicial criticism on candour and expedition duties.
  • s. 23 implementation under pressure: The Court’s “systemic significance” observation is an invitation for structured litigation/case management to clarify whether statutory mechanisms (including any s. 23(3) panel) are being lawfully operationalised.
  • Safe country designation is not determinative: A safe country of origin designation is a weighty background factor, but cannot, on its own, defeat an arguable case that an individual may face serious harm and that their individual circumstances were not lawfully assessed.

Cautionary note for practitioners

The ruling contains unusually direct criticism of case presentation: omission of key facts (including existence of removal decisions), delayed disclosure of medical evidence, and missed opportunities to present relevant COI and physical scarring evidence. The Court indicated that such conduct may be reflected in costs, even where substantive relief is granted.

4. Complex Concepts Simplified

  • “Substantial grounds” (IITA 2000, s. 5): a higher leave threshold than mere arguability—grounds must be reasonable, weighty, and not trivial or tenuous.
  • s. 50 refoulement decision (2015 Act): an assessment whether removal would breach the prohibition on returning someone to a place where they face serious harm (non-refoulement). It is not intended to replicate a full asylum appeal, but must still be lawful and rational, and must engage with material risk factors.
  • s. 23 medical examination (2015 Act): a mechanism enabling decision-makers to obtain independent medical evidence where physical/mental health may be relevant (often to credibility, trauma indicators, or vulnerability).
  • s. 3(11) Immigration Act 1999: a statutory route to seek revocation/amendment of a deportation order based on changed circumstances or new information, often the “ordinary” mechanism for post-decision evidence.
  • Okunade balance of justice: the court weighs competing risks—public interest in enforcing valid immigration measures versus the individual’s risk of irreversible harm and the risk that proceedings become pointless if removal occurs before trial.

5. Conclusion

In S.H.E. v The International Protection Appeals Tribunal and Ors (Approved) [2026] IEHC 464, the High Court permitted late amendment to challenge removal measures and granted a time-bounded, tightly managed injunction restraining deportation. The decision is significant for its fact-sensitive recognition that where medico-legal evidence has been expressly foreshadowed as imminent and is potentially central to credibility, refoulement, and mental health risk, proceeding to removal decisions without meaningful engagement may be legally vulnerable. At the same time, the Court stressed this is not a general rule requiring decision-makers to await anticipated reports in all cases, and underscored that serious procedural and candour failures may have consequences, particularly in costs and case management.