Legislative Change, Safe-Third-Country Designation, and Mootness: When Repeal/Replacement Removes the “Live Controversy” and s.27 Interpretation Act 2005 Does Not Preserve an Appeal

Case: E v The International Protection Appeals Tribunal & ors; FOM v. The Minister for Justice & Ors [2026] IESC 8 (Woulfe J., judgment delivered 18 February 2026)
Court: Supreme Court of Ireland
Context: Appeals concerning “safe third country” inadmissibility/return procedures under the International Protection Act 2015, affected by the Civil Law, Criminal Law and Superannuation Act 2024 and subsequent redesignation of the UK (S.I. No. 73 of 2025).

Important procedural note from the text provided: The excerpt is the judgment of Woulfe J. He concludes the appeals were moot; he notes that a majority of the Court took the opposite view (and therefore he did not address the discretionary “moot but hear anyway” stage).

1. Introduction

These joined appeals arose from two judicial review challenges to decisions made within Ireland’s “safe third country” architecture under the International Protection Act 2015 (the “2015 Act”), as then applied to returns to the United Kingdom (“UK”).

  • K.E. (Nigerian national) challenged (i) an International Protection Appeals Tribunal (“IPAT”) decision (27 April 2023) affirming an International Protection Office (“IPO”) recommendation deeming his claim inadmissible, and (ii) a Ministerial inadmissibility decision (10 May 2023), both premised on the UK’s designation as a safe third country under the International Protection (Safe Third Country) Order 2020 (S.I. No. 725 of 2020) (the “2020 Order”).
  • F.O.M. (Iraqi national) challenged (i) a Ministerial “no refoulement breach” decision under s.50A (25 January 2023), and (ii) a return order under s.51A (26 January 2023), again within the “safe third country” pathway.

The High Court ([2024] IEHC 183) quashed the impugned decisions and accepted, in substance, that Ireland’s “safe third country” regime (as then framed) was unlawful in EU-law terms because it did not incorporate an additional “no risk of serious harm” principle associated with Article 38(1)(b) of Directive 2013/32/EU (the “Recast Procedures Directive”), treated as applicable via the Dublin III Regulation.

While the Minister appealed, the statutory landscape changed. The 2024 Act revoked the 2020 Order and amended ss.50A and 72A of the 2015 Act to reflect the “serious harm” safeguard. The Court of Appeal ([2025] IECA 43) dismissed the Minister’s appeals as moot. The Supreme Court granted leave on mootness parameters. Woulfe J’s judgment addresses whether, in light of those legislative events, the appeals still involved a “live controversy”.

2. Summary of the Judgment (Woulfe J.)

Woulfe J. held that both appeals had become moot due to the 2024 legislative changes and the revocation of the 2020 Order:

  • K.E.: because the UK’s designation under the 2020 Order was revoked before any return order issued, the Minister’s inadmissibility decision based on that designation “did not continue, and could not have continued, to have any legal force” after revocation; it was not “revived” by the later 2025 redesignation. Fresh decisions would be required under the amended regime.
  • F.O.M.: although a return order existed, removal had not occurred; therefore, the Minister would now be obliged—before removal—to conduct a new refoulement assessment under the amended s.50A “with the enhanced safeguards” (or, at minimum, would have to consider new “change of circumstances” submissions capturing the same effect).

On that basis, even if the Minister succeeded on appeal, it would have “no practical impact or effect”; thus, there was no longer a live controversy. Woulfe J. also agreed with the Court of Appeal that s.27 of the Interpretation Act 2005 did not assist the Minister, given the 2024 Act went “considerably further than repealing” the relevant instrument by adding substantive safeguards.

Because (as he noted) the majority concluded the appeals were not moot, Woulfe J. did not determine whether the Court should nonetheless exercise discretion to hear an otherwise-moot appeal.

3. Analysis

3.1 Precedents Cited

(a) The core mootness framework

  • Lofinmakin v. Minister for Justice & Ors. [2013] 4 I.R. 274 (“Lofinmakin”)
    Woulfe J. treats Lofinmakin as the controlling Irish summary of mootness. He restates McKechnie J.’s two-step analysis:
    1. Step 1: Is there a live controversy such that the court’s decision will have a practical impact?
    2. Step 2: If moot, should the court nonetheless hear the case in its discretion (exceptional circumstances)?
    Woulfe J. applies only Step 1 (mootness) because of the majority’s different conclusion.
  • Odum v Minister for Justice and Equality [2023] 2 ILRM 164 (“Odum”)
    Odum is used to reinforce the reasons for mootness doctrine in a common-law, adversarial system: the need for a full adversarial context; resource constraints; and avoiding advisory opinions. Woulfe J. draws from Odum (and its approval of Lofinmakin) to frame why a post-legislative-change appeal should not proceed if it cannot alter parties’ legal positions.

(b) Discretion to hear moot appeals (raised in submissions; not reached by Woulfe J.)

  • Okunade v. Minister for Justice [2012] I.R. 152 and O'Brien v. Personal Injuries Assessment Board (No. 2) [2007] 1 I.R. 328 (“O'Brien”)
    Cited by the Court of Appeal (and referenced here) for examples where appellate courts proceeded despite mootness due to wider considerations.
  • Irwin v Deasy [2010] IESC 35 (“Irwin”)
    Raised by the Minister to argue that public bodies may require appellate clarification in order to perform statutory functions lawfully—an argument used to support hearing even if moot.

(c) Statutory interpretation / intermediate appeal

  • Wansboro v Director of Public Prosecutions [2017] IESCDET 115
    Cited on forum/venue, for the “advantage of an intermediate appeal” through the Court of Appeal where complex issues arise.
  • CA v Minister for Justice and Equality [2014] IEHC 532 and Sibanda v Minister for Justice and Equality [2024] IECA 206
    Relied upon by the Minister for the proposition that the Oireachtas may mirror non-binding EU measures in domestic law without thereby conceding EU-law obligation—relevant to the Minister’s contention that the post-2024 amendments should not be treated as validating the High Court’s EU-law approach. Woulfe J.’s mootness analysis, however, treats the domestic amendment as dispositive of “practical impact”, irrespective of whether it was EU-mandated.

(d) EU law authorities (raised in submissions; not determined in Woulfe J.’s mootness conclusion)

  • Case C-616/19 MS v Minister for Justice and Equality EU:C:2020:1010 and Case C-349/20 NB, AB v Home Secretary EU:C:2022:151
    Invoked by the Minister to contest the High Court’s conclusion that Dublin III could “import” Recast Procedures Directive requirements for Ireland, given Ireland’s opt-in regime under Protocol No. 21. Woulfe J. does not reach these merits once he finds the appeals moot.

3.2 Legal Reasoning

(a) “Practical impact or effect” after repeal/replacement of the designation instrument

Woulfe J.’s central move is to treat the revocation of the 2020 Order—and the supervening statutory safeguards—as breaking the causal chain between the impugned decisions and any present legal consequences:

  • For K.E., the Minister’s inadmissibility decision was inseparable from the 2020 Order’s designation of the UK as safe. Once that instrument was revoked, Woulfe J. concludes the decision “did not continue” to have legal force. Importantly, he rejects the idea that the 2025 Order (a fresh designation made under the amended s.72A) could “revive” an earlier decision taken under a different legislative basis. The upshot is that any future reliance on “safe third country” inadmissibility would require new decisions under the amended regime.
  • For F.O.M., Woulfe J. grounds mootness in the timing of safeguards: because removal had not occurred, the decision-maker must engage the amended s.50A protections before removal. Even if one conceptualises this as allowing new “change of circumstances” submissions rather than formally re-making every step, Woulfe J. considers that functionally the legal position is now governed by the new statutory regime, not the old.

(b) The role of s.27 of the Interpretation Act 2005

The Minister relied on s.27(1)(b) and (c) of the Interpretation Act 2005 to argue that revocation should not affect “anything duly done” or any “obligation or liability” incurred under the repealed instrument. Woulfe J., aligning with the Court of Appeal, rejects this as determinative because:

  • The 2024 Act was not merely a repeal; it reconstructed the safeguards governing prospective removal/inadmissibility decisions (“goes considerably further than repealing”).
  • The respondents are “entitled to rely” on these added safeguards. Therefore, even if one assumes certain past acts remain historically “duly done”, the operative legal framework for any future removal decision has changed such that the appeal cannot deliver meaningful relief.

(c) Disagreement with the majority on what counts as a “live controversy”

Woulfe J. expressly disagrees with Donnelly J.’s view (as described at para. 63) that the question whether EU law obliged Ireland to legislate for the “serious harm” definition remains a live controversy between these parties. For Woulfe J., once domestic law now contains the safeguard “irrespective of whether it arose out of an obligation under EU law or otherwise”, the appeal becomes practically ineffectual in the parties’ concrete dispute.

3.3 Impact

On the approach articulated by Woulfe J., the decision has significant implications for public-law litigation in fast-moving statutory environments, especially in immigration and asylum contexts:

  • Appeals may be extinguished by supervening legislative change where the challenged administrative steps cannot meaningfully be carried forward into the new framework, particularly if the foundational designation instrument is revoked and later re-made under amended statutory criteria.
  • s.27 Interpretation Act 2005 is not a general “preservation” device for keeping appeals alive where the legislature has introduced forward-looking substantive safeguards that will govern any future operative decision (notably at the point of removal).
  • Administrative multi-stage processes may have to be re-run (or effectively re-opened) when the law changes before the legally decisive event (here, removal), thereby shifting litigation away from “validating” old steps and toward challenging new decisions under the amended regime.

Practically, in international protection cases, this approach prioritises up-to-date safeguards at the point of removal and tends to channel disputes into fresh decisions (and, if necessary, fresh judicial reviews), rather than appellate determination of superseded legislative arrangements.

4. Complex Concepts Simplified

  • Mootness: A case (or issue) is moot if the court’s decision cannot change anything real between the parties—i.e., it has no “practical impact or effect” on a “live controversy”. Courts generally avoid deciding moot cases because that risks issuing advisory opinions.
  • Two-step mootness analysis (from Lofinmakin): (1) decide if the dispute is still live; (2) even if not, decide whether exceptional circumstances justify hearing it anyway.
  • Certiorari: A judicial review remedy quashing an unlawful administrative decision (e.g., an inadmissibility decision or a return order).
  • Safe third country / inadmissibility: A mechanism allowing Ireland to treat an asylum application as inadmissible if the applicant can be returned to a designated “safe” country with which they have a sufficient connection, subject to statutory/EU safeguards.
  • Refoulement: Returning a person to a place where they face serious risks (e.g., persecution, torture). Irish law provides a refoulement assessment (here, under s.50A of the 2015 Act) before a return order can be executed.
  • s.27 Interpretation Act 2005: A general rule that repeal does not undo the “previous operation” of the repealed law or invalidate things properly done under it. However, as analysed here, it does not necessarily preserve the utility of an appeal where the legislature has created new, forward-looking decision conditions that will control what happens next.
  • Protocol No. 21 (opt-in): A Treaty mechanism under which Ireland is not bound by certain EU “Area of Freedom, Security and Justice” measures unless it opts in. The Minister argued this was crucial to whether the Recast Procedures Directive could bind Ireland indirectly; Woulfe J. did not reach this because of mootness.

5. Conclusion

Woulfe J.’s judgment applies the Lofinmakin/Odum mootness framework to a statutory regime that changed mid-litigation. He concludes that revocation of the 2020 “safe third country” designation for the UK, coupled with the 2024 Act’s insertion of enhanced safeguards (and a later redesignation under a different statutory basis), removed any live controversy: the impugned decisions could no longer produce operative consequences, and any future action would require new assessments under the amended law.

The judgment therefore highlights a practical rule of public-law litigation: where the legislature intervenes to replace the legal foundation and prospective safeguards of an administrative scheme—especially before the decisive event (such as removal)—appellate disputes over the superseded regime may become non-justiciable, and s.27 of the Interpretation Act 2005 will not necessarily keep such appeals alive.