No Duty to Pre‑Notify Mainstream Country of Origin Information in IPAT Appeals: Commentary on K v IPAT [2025] IEHC 643

No Duty to Pre‑Notify Mainstream Country of Origin Information in International Protection Appeals

Commentary on K v The International Protection Appeals Tribunal & Anor [2025] IEHC 643

1. Introduction

This judgment of Heslin J in K v International Protection Appeals Tribunal & Anor [2025] IEHC 643 is an important addition to the Irish jurisprudence on:

  • the extent of the International Protection Appeals Tribunal’s obligation to disclose country of origin information (“COI”) before relying on it, and
  • the interaction between that obligation, s.46(8) of the International Protection Act 2015, constitutional fair procedures, and EU law.

The decision confirms and extends the principles laid down by the Supreme Court in YY v Minister for Justice and Equality and applies recent appellate authority such as H & A v IPAT, FM, and AAH. The Court holds that where the Tribunal relies on mainstream, publicly available COI which:

  • is of the same general nature as material already known to and relied upon by the applicant; and
  • does not materially change the “picture” in any way adverse to the applicant,

there is no breach of fair procedures in failing to pre‑notify that COI or invite submissions on it. Nor does s.46(8)(b) of the 2015 Act require quashing in such circumstances.

The case therefore clarifies the default position on disclosure of COI in international protection appeals and marks an important restatement of the limits of judicial review in this area, including the need to plead EU law grounds expressly.

2. Background and Facts

2.1 The parties and procedural posture

  • Applicant (“K”): an Albanian national claiming international protection in Ireland on the basis of his sexual orientation.
  • First respondent: International Protection Appeals Tribunal (“IPAT” or “the Tribunal”).
  • Second respondent: Minister for Justice.

K sought an order of certiorari quashing the Tribunal’s decision of 13 June 2024, which had:

  • affirmed the IPO’s recommendation that he not be given refugee status or subsidiary protection; and
  • rejected his appeal under s.46 of the International Protection Act 2015.

The judicial review was grounded on a single pleaded legal ground: an alleged breach of s.46(8)(b) of the 2015 Act, and of constitutional justice and fair procedures, by the Tribunal’s failure to notify in advance its intended reliance on a UK Home Office “Country Policy and Information Note: sexual orientation and gender identity and expression, Albania, December 2022 (updated 22 March 2024)” (the “UK Home Office Note”).

2.2 The applicant’s narrative and the IPO decision

K claimed that he:

  • began a same‑sex relationship in Albania in January 2022,
  • was discovered in an intimate encounter in April 2022,
  • was severely beaten and detained for two weeks by his father, and
  • received threats after staying with his partner.

He left Albania in May 2022, travelled via Germany and Spain, and applied for international protection in Ireland on 26 July 2022.

The IPO:

  • interviewed him under s.13 and s.35 of the 2015 Act;
  • explained the relevance of COI to his claim (notably Question 47 in the s.35(12) interview report, where he was confronted with COI indicating that same‑sex relationships are legal and protected in Albania); and
  • issued:
    • a negative s.39 report (21 July 2023) recommending no refugee or subsidiary protection declaration; and
    • a negative s.49 permission‑to‑remain report (26 July 2023).

The s.39 report concluded that K had neither:

  • a well‑founded fear of persecution; nor
  • a real risk of serious harm if returned to Albania.

2.3 The appeal to IPAT

K appealed to IPAT under s.46. The appeal was supported by detailed written submissions (18 August 2023) and further submissions (19 January 2024), including COI extracts from:

  • Freedom House (“Nations in Transit 2023 – Albania”);
  • US Department of State (“2022 Country Report on Human Rights Practices: Albania”);
  • GAN Integrity – Albania corruption report; and
  • European Commission and further Freedom House material.

This COI was relied on to argue that there was no effective state protection for LGBTQI+ persons in Albania.

An oral hearing took place on 2 April 2024. On 13 June 2024, IPAT dismissed the appeal.

2.4 The Tribunal’s findings of fact

IPAT made two important factual findings:

  1. Although the IPO had not accepted that K was gay, the Tribunal afforded him the benefit of the doubt and accepted that he is homosexual.
  2. However, the Tribunal did not accept that he had suffered harm in Albania due to his sexual orientation, and did not accept that he had a well‑founded fear of persecution or serious harm if returned.

Crucially, K did not challenge the Tribunal’s adverse credibility findings or its assessment of his personal narrative. The judicial review was confined to the alleged procedural unfairness associated with undisclosed COI.

2.5 The COI used by the Tribunal

The Tribunal relied primarily on two mainstream COI sources:

  1. US Department of State 2023 Report on Human Rights Practices: Albania (para. 25 of the IPAT decision), and
  2. UK Home Office “Country Policy and Information Note: sexual orientation and gender identity and expression, Albania, Dec. 2022 (updated Mar. 2024)” (para. 26 of the IPAT decision).

These reports painted a nuanced picture:

  • Legal framework:
    • Consensual same‑sex relations are legal;
    • Anti‑discrimination laws cover sexual orientation and gender identity;
    • Hate crime laws include these protected characteristics.
  • Enforcement and societal reality:
    • Enforcement is weak;
    • LGBTQI+ people frequently under‑report violence and discrimination;
    • Albanian society remains conservative and patriarchal, with significant homophobia, especially in rural areas;
    • No recognition of same‑sex unions, marriage or parenting.

IPAT concluded that, in light of this COI and K’s circumstances (as accepted), there was no reasonable chance he would face persecution on return to Albania.

It is common case that the UK Home Office Note had not been notified to K or his lawyers prior to the Tribunal’s decision being issued.

3. Summary of the High Court Judgment

3.1 The pleaded ground

K’s single pleaded legal ground was that the Tribunal breached:

  • s.46(8)(b) of the International Protection Act 2015;
  • constitutional justice; and
  • fair procedures,

by failing to notify him in advance of the UK Home Office Note, which the Tribunal considered relevant to his appeal.

3.2 Section 46(8)(b) and the Court of Appeal decision in H & A

At the outset, counsel for K accepted that the recent Court of Appeal decision in H & A v IPAT [2025] IECA 203 was adverse to his statutory interpretation argument. In that case, Collins J answered the following certified question in the negative:

Does s.46(8) of the International Protection Act 2015 (read in the light of EU law) require that a decision be quashed where there has been a failure on the part of the Tribunal to disclose COI subsequently relied upon in its decision before deciding on an application under the Act?

Collins J held that s.46(8)(b):

  • requires IPAT to give an indication in writing of the nature and source of other information that has come to its notice; but
  • does not require pre‑decision disclosure of the information itself in sufficient time to allow submissions; and
  • is primarily aimed at transparency, not at creating an additional statutory fair‑procedures guarantee beyond other provisions of the Act.

Heslin J therefore considered that the s.46(8) argument was foreclosed by H & A; there is no automatic requirement to quash a decision merely because COI has not been pre‑notified.

3.3 Focus on fair procedures and constitutional justice

The central question thus became whether the failure to pre‑notify the UK Home Office Note amounted, on the facts, to a breach of constitutional and natural justice (audi alteram partem).

The Court rejected K’s claim on the basis that:

  • the UK Home Office Note was mainstream, publicly accessible COI of the same general nature as COI already in play;
  • it did not materially change the picture as compared to the US Department of State material (which K’s own solicitors had put forward in 2022 form, and which the Tribunal updated to 2023);
  • K did not allege that the UK Note was inaccurate, unusual, or inconsistent with other mainstream COI; and
  • he failed to identify any concrete submissions he would have wished to make had he been notified.

Applying the Supreme Court’s approach in YY and subsequent High Court and Court of Appeal decisions, Heslin J held that there is no general obligation to notify applicants of mainstream COI from standard public sources that does not materially change matters. Consequently, there was no breach of fair procedures.

3.4 EU law arguments rejected as unpleaded (and unfounded)

During oral submissions, counsel for K invoked:

  • Articles 41 and 47 of the EU Charter of Fundamental Rights;
  • Council Directive 2005/85/EC (Procedures Directive), particularly Articles 16 and 39; and
  • the CJEU judgment in BU v Germany (C‑564/21).

However:

  • the statement of grounds did not plead any EU law ground, and
  • no application had been made to amend the grounds.

Relying on settled case law (including Casey v Minister for Housing and Keegan v GSOC), the Court held that K was confined to his pleaded case and could not rely on unpleaded EU law arguments.

Nonetheless, ex abundanti cautela, the Court considered the EU law content and held that:

  • even on the merits, nothing in the Charter, the Procedures Directive, or BU v Germany supported a right to pre‑notification of mainstream COI; and
  • EU law did not impose any more extensive obligation in this regard than that already articulated domestically in YY and related authorities.

3.5 Outcome

The High Court:

  • dismissed the application for judicial review; and
  • indicated a preliminary view that the respondents were entitled to their costs, with final orders to be made after further submissions on costs.

4. Detailed Analysis

4.1 Statutory and Legal Framework

4.1.1 Section 46(8) of the International Protection Act 2015

Section 46(8) provides that the Tribunal shall furnish the applicant and his/her legal representative with:

  • (a) copies of any documents furnished by the Minister that have not previously been furnished; and
  • (b) “an indication in writing of the nature and source of any other information relating to the appeal which has come to the notice of the Tribunal in the course of an appeal.”

The argument advanced by K was that s.46(8)(b), read with the Constitution and EU law, required the Tribunal to:

  • inform him in advance of the UK Home Office Note, and
  • provide an opportunity to comment,

failing which the decision was vitiated.

The Court, however, treated H & A v IPAT as determinative of this contention. Collins J had held there that:

  • s.46(8)(b) is about transparency, not about ensuring that all such information is disclosed in time to allow for submissions;
  • it does not of its own force create a statutory right to pre‑decision engagement with all new COI; but
  • a failure to disclose in advance information that is then materially relied upon might still give rise to a separate fair procedures challenge.

Heslin J follows this analysis, treating s.46(8) as a procedural transparency provision, not a statutory codification of the constitutional right to be heard.

4.1.2 Judicial review and certiorari

The application was for an order of certiorari — a public law remedy by which the High Court quashes a decision of an administrative body on grounds of illegality or procedural unfairness. The Court’s role was not to re‑assess the merits of the protection application, but to examine whether IPAT’s procedure and reasoning complied with law.

4.2 Precedents Cited and Their Influence

4.2.1 YY v Minister for Justice and Equality (High Court and Supreme Court)

The most important authority is the YY litigation, which arose in the deportation context but dealt squarely with the Minister’s use of COI.

(a) High Court: Humphreys J [2017] IEHC 176

In the High Court, Humphreys J addressed whether it was unfair for the Minister to rely on COI reports (from US DoS, Amnesty, UK Border Agency) without notifying the applicant. He drew a key distinction:

  • Mainstream, widely‑known, standard COI (US DoS, UK Home Office, Amnesty, etc.):
    • need not be specifically notified; and
    • applicants and their legal representatives must be taken to be aware of such material and to expect it to be used.
  • Obscure or unusual material which would “materially change the picture” appearing from basic sources:
    • must be notified if the decision‑maker intends to rely on it.

He concluded that fair procedures did not require notice of mainstream, publicly accessible COI.

(b) Supreme Court: O’Donnell J [2017] IESC 61

O’Donnell J (as he then was) approved this approach. He emphasised that:

  • the Minister is obliged to be aware of, and to act on, up‑to‑date COI, even if not expressly cited by the applicant; and
  • unless the COI considered is in some respect unusual, there is no obligation to notify the applicant of additional mainstream COI of the same general nature.

YY thus created a general rule: no duty to pre‑notify mainstream COI, subject to exceptional circumstances (e.g. obscure or game‑changing material).

Heslin J explicitly applies this principle, treating IPAT, in the international protection context, as equally entitled to rely on mainstream COI without always having to signal it in advance.

4.2.2 Moyosola v Refugee Applications Commissioner [2005] IEHC 218

K relied on Moyosola, where Clarke J (as he then was) held that inquisitorial bodies (like the then Refugee Applications Commissioner) must:

bring to the attention of any person whose rights may be affected … any matter of substance or importance which [the body] may regard as having the potential to affect its judgment.

This reflects the broader Re Haughey fair procedures principle – an affected person is entitled to know “the case against them”.

However, Heslin J:

  • found no inconsistency between Moyosola and the YY approach; and
  • stressed that the application of fair procedures is fact‑specific.

Here, the applicant:

  • knew that COI was central to the decision (indeed he relied heavily on it himself);
  • used COI from standard mainstream sources, including US DoS; and
  • did not allege that the UK Note raised any qualitatively new or surprising matter.

Thus, on these facts, the Tribunal did not fail to bring a “matter of substance” to K’s attention in the sense contemplated in Moyosola.

4.2.3 ZA v IPAT [2021] IEHC 416

ZA (Burns J) is a central authority on COI and fair procedures. It involved:

  • a Pakistani applicant from Sialkot; and
  • the Tribunal’s reliance on a more recent 2019 EASO report that had not been put to the applicant.

The earlier 2018 EASO report suggested serious conflict and shelling in Sialkot. The 2019 report stated that, for the first seven months of 2019, there had been no evidence of such shelling. Burns J held:

  • the 2019 report “altered the significance” of the earlier COI in a way crucial for the applicant;
  • the Tribunal took a different overall view of the COI (including the new report) than the IPO had; and
  • in “the particular circumstances” of that case, failure to notify the new COI was a breach of audi alteram partem.

Heslin J distinguished ZA on two main bases:

  1. In ZA, the new COI significantly changed the risk assessment (from evidence of shelling to no evidence of shelling).
  2. Here, by contrast, the UK Home Office Note was substantively aligned with other mainstream COI (particularly the US DoS reports) and did not alter the risk “picture”.

Indeed, Burns J herself had accepted, at para 12 of ZA, that in immigration law:

the principles of audi alteram partem do not require the decision-maker to notify an applicant’s legal representatives of up-to-date, readily available and relevant COI.

Heslin J leans on this statement to reinforce the YY doctrine as the default rule, and treats ZA as an exceptional, fact‑specific case where the new COI fundamentally changed the assessment.

4.2.4 FM v Minister for Justice and Equality [2020] IECA 184

In FM, the Court of Appeal (Faherty J) addressed, among other issues, whether the Minister was obliged to notify applicants of the COI relied upon in deciding subsidiary protection applications, particularly in the absence of an appeal mechanism.

The Court:

  • held that the lack of an appeal process did not, of itself, require such notification; and
  • found no basis to quash the decisions on fair‑procedures grounds, especially given the lack of specific challenges to the cogency, recency, or relevance of the COI used.

FM confirms and applies YY in a context closely analogous to international protection, and is used by Heslin J to illustrate that:

  • EU Charter rights (Article 47) are satisfied by the availability of judicial review as an effective remedy; and
  • there is no automatic right to pre‑decision engagement with mainstream COI, even where no administrative appeal exists.

4.2.5 AAH v IPAT [2024] IEHC 699 (Phelan J) and H & A v IPAT [2025] IECA 203

In AAH, the Tribunal relied on an EUAA (formerly EASO) report on secondary movements that had not been flagged to the applicant. Phelan J held that:

  • the report was publicly accessible and available to the applicant and his lawyers;
  • the applicant had identified no specific submissions he would have made had he known; and
  • any procedural non‑compliance did not cause substantive unfairness so as to warrant relief.

The Court of Appeal in H & A endorsed this approach, particularly in relation to s.46(8) and the need to demonstrate material adverse impact before a breach of fair procedures can be found.

Heslin J adopts this reasoning directly. He emphasises:

  • the UK Home Office Note was “publicly accessible and available”;
  • K did not indicate any particular submission he would have wished to advance; and
  • the COI was substantively similar to other mainstream COI already considered.

4.2.6 BW v Refugee Appeals Tribunal [2017] IECA 296

K also cited BW, where the Court of Appeal (Peart J) stressed that:

where some matter is giving rise to a concern as to credibility … the applicant must be given a fair opportunity of addressing that concern before any adverse finding of credibility is made.

However, Heslin J correctly notes that:

  • BW concerned adverse credibility findings based on matters not put to the applicant;
  • in K’s case, credibility findings were not challenged; and
  • the complaint was about the non‑disclosure of mainstream COI, not about undisclosed adverse credibility concerns.

Accordingly, BW’s principle (fair warning of credibility concerns) does not assist K on these facts.

4.3 Legal Reasoning: Application to the Facts

4.3.1 Nature of the UK Home Office Note

Central to the Court’s reasoning is its analysis of the UK Home Office Note:

  • It is mainstream COI from a widely known source (UK Home Office).
  • It draws extensively on and cross‑references US Department of State reports.
  • It presents the same mixed picture – legal protections alongside weak enforcement and societal discrimination.
  • It does not contradict or materially depart from those other mainstream sources.

K did not aver that:

  • the UK Note contained factual inaccuracies;
  • it was inconsistent with the US DoS material he himself had invoked (albeit in its 2022 iteration);
  • it was obscure or unusual; or
  • it introduced any qualitatively new or surprising assessment.

Indeed, the Tribunal’s own summary at paras. 25–26 of its decision shows that the US DoS and UK Note convey substantively similar content. The UK Note even cites the US reports repeatedly, confirming the overlap.

4.3.2 No “material change” in the COI picture

The applicant’s written submissions attempted to argue that:

whether new COI needs to be put to an applicant depends on whether it materially changes the picture before the decision maker. If there is such a material change, adverse to the applicant, then … that new information should be put.

The Court accepts that principle in abstract (and it is consistent with YY, ZA, and Moyosola) but finds that it simply does not apply here: the UK Note did not materially change the picture.

By contrast, in ZA, the 2019 EASO report:

  • sharply altered the risk assessment for the applicant’s specific area (Sialkot); and
  • led the Tribunal to adopt a radically different view of the risk landscape from that in the 2018 report.

Here, nothing of that order occurred. The UK Note reinforced, rather than contradicted, the mainstream COI profile of Albania.

4.3.3 Failure to show concrete prejudice

A recurring theme in recent case law is that a technical procedural irregularity will not warrant judicial review relief unless it results in substantive unfairness. Two features are striking here:

  1. K’s affidavit evidence was vague and general as to what he would have said if given the UK Note. He asserted that he:
    • would have “examined and scrutinised” the COI;
    • would have made submissions about why it should not be relied on; and
    • would have referred to Professor Anthony Good’s article on misuses of COI.
  2. Even at the time of the High Court hearing, K still had not identified any specific passage in the UK Note he would contest, nor any particular counter‑COI he would deploy.

The Court considered the Good article (which is largely about Sri Lankan COI and UK practice) and found that:

  • it did not indicate any specific flaw in the Albanian COI at issue; and
  • there was no apparent connection between that article and any concrete criticism of the UK Note.

Following AAH, Heslin J concluded that K had not shown that he was prevented from making any particular submission to his detriment. Any alleged unfairness was speculative and unparticularised.

4.3.4 Alignment with YY and mainstream COI doctrine

The Court’s reasoning dovetails with the YY framework:

  • The UK Note is “widely‑known and standard” COI from a mainstream source.
  • It is the type of information that any international protection practitioner should expect to be used.
  • It does not “materially change the picture” compared to the US DoS material and other mainstream COI previously in play.

Hence, the Tribunal was not required to notify K of its intention to rely on that Note before making its decision.

4.4 The EU Law Arguments

4.4.1 Pleading requirements in judicial review

A separate, but very significant, aspect of the judgment is the Court’s treatment of the EU law arguments.

The statement of grounds:

  • did not refer to the EU Charter;
  • did not cite the Procedures Directive; and
  • did not plead any breach of EU law as such.

Heslin J held that the generic reference to “constitutional justice and fair procedures” could not be read as including unpleaded EU law claims. Relying on Casey, Keegan, AP v DPP, and other authorities, he reiterated that:

  • Order 84 RSC requires applicants to define their grounds with clarity at leave stage;
  • new grounds cannot be argued at the substantive hearing without formal amendment; and
  • the leave filter is designed to ensure precision, proportionality, and fairness to respondents.

Because K had:

  • not pleaded any EU law ground; and
  • not applied to amend his statement of grounds,

the Court held it would be inappropriate to entertain EU law arguments at the substantive stage.

4.4.2 Substantive rejection of EU law claims

The Court nonetheless addressed the EU authorities invoked:

  • Article 41 Charter (right to good administration) – which in any event primarily binds EU institutions, not Member States directly; and
  • Article 47 Charter (right to an effective remedy and fair trial);
  • Procedures Directive 2005/85/EC, Articles 16 and 39; and
  • BU v Germany (C‑564/21).

In BU v Germany, the CJEU dealt with:

  • the format and accessibility of the administrative file in asylum cases, especially where it is kept electronically; and
  • whether the applicant’s representative has access to the full, complete, paginated file to assess changes or alterations.

The CJEU held that, subject to justified confidentiality, the applicant must have access to the complete file as presented to the court, so that factual and legal elements decisive for the outcome can be debated adversarially.

However, as Heslin J points out:

  • BU concerned file integrity and completeness, not pre‑notification of particular items of mainstream COI in advance of a first‑instance administrative decision.
  • There was no suggestion in BU (or in the Procedures Directive) that a decision‑maker must notify an applicant each time it consults well‑known COI from standard public sources.

Furthermore, earlier Irish case law (notably YY and FM) had already considered the impact of EU procedural standards and concluded that:

  • judicial review provides an effective remedy for the purposes of Article 47; and
  • EU law does not require notification of mainstream COI that is up‑to‑date, readily available and relevant.

Accordingly, even if the EU law grounds had been pleaded, the Court was “very satisfied” that no EU law breach had been established.

4.5 Impact and Significance

4.5.1 Consolidation of the “mainstream COI” doctrine for IPAT

The judgment is significant because it transposes and consolidates the YY doctrine directly into the international protection appeals context. Previously, YY had arisen in the deportation sphere and involved the Minister as decision‑maker. K attempted to distinguish YY on that basis, arguing that:

  • IPAT is an independent, inquisitorial tribunal; and
  • its obligations regarding fair procedures and disclosure should thus be stricter.

Heslin J rejects this distinction. He holds that the core YY principle applies with equal force to IPAT, particularly given:

  • the centrality of COI to all forms of protection decision‑making; and
  • the expectation that practitioners in this field are familiar with standard COI sources.

The result is a clear, general rule:

Where IPAT relies on mainstream, publicly accessible COI of the same general nature as that already before it, and which does not materially alter the risk picture, it is not required as a matter of fair procedures to notify the applicant in advance or invite submissions on it.

However, the judgment also implicitly preserves the ZA‑type exception: new COI that materially changes the assessment, particularly in a way adverse to the applicant, may trigger a duty to disclose and allow comment.

4.5.2 The role of s.46(8)(b) after H & A and K

After H & A and now K:

  • s.46(8)(b) is understood as a transparency mechanism — it requires IPAT to indicate the nature and source of “other information” but does not, of itself, require pre‑decision engagement or provide an automatic basis for quashing; and
  • any alleged unfairness must be framed instead as a constitutional fair‑procedures breach and assessed on its facts, including consideration of:
    • whether the COI is mainstream or obscure;
    • whether it materially changes the picture;
    • whether it is adverse to the applicant; and
    • whether the applicant can identify concrete prejudice.

This clarifies for practitioners that s.46(8)(b) cannot be treated as a “technical trapdoor” to challenge an IPAT decision simply because some COI was not signalled in advance.

4.5.3 Pleading discipline and EU law in judicial review

The judgment also reinforces a procedural point of wider significance: judicial review applicants must plead EU law grounds expressly if they wish to rely on them.

Courts will be slow to entertain EU law arguments raised for the first time at the substantive hearing, especially in judicial review where:

  • there is a formal leave stage;
  • the statement of grounds defines and confines the dispute; and
  • respondents are entitled to clarity as to the case they must meet.

For EU law litigators in the asylum field, K underscores the importance of:

  • identifying Charter and Directive provisions at the outset; and
  • seeking formal amendment if additional EU arguments arise later.

4.5.4 Practical implications for practitioners and IPAT

For practitioners representing applicants:

  • They must assume that IPAT will consider and may rely on all major mainstream COI sources (US DoS, UK Home Office, EUAA, Freedom House, etc.), whether or not expressly cited by the applicant.
  • They should proactively:
    • monitor up‑to‑date COI from those sources;
    • address in their submissions any COI that might be adverse to the client; and
    • be ready, if challenging an undisclosed COI, to identify specifically what submissions they would have made and how the COI is materially different or erroneous.

For the Tribunal:

  • The judgment confirms that IPAT may safely consult and rely on mainstream COI without needing to pause proceedings each time to notify the parties.
  • Nevertheless, where:
    • COI is obscure, highly specialised, or not readily accessible, or
    • new COI drastically changes the risk assessment, particularly in a way adverse to the applicant,
    fair procedures may require disclosure and an opportunity to comment before a decision is made.

5. Complex Concepts Simplified

5.1 Country of Origin Information (COI)

COI is objective material about conditions in an applicant’s country of origin. It usually comes from:

  • government human rights reports (e.g. US Department of State, UK Home Office);
  • intergovernmental bodies (e.g. EUAA, UNHCR);
  • NGOs (e.g. Amnesty, Human Rights Watch); and
  • academic or specialist research.

In international protection cases, COI is used to assess:

  • general human rights and security conditions;
  • treatment of specific groups (e.g. LGBTQI+, ethnic or religious minorities); and
  • state willingness and ability to protect.

The Court distinguishes between:

  • Mainstream COI: widely‑known reports from standard, reputable public sources; and
  • Obscure/unusual COI: less accessible or specialist materials that could significantly change the analysis.

5.2 Audi Alteram Partem (the right to be heard)

is a core principle of natural justice: a person affected by a decision must have a fair opportunity to know and answer the case against them. In this context, it underpins:

  • the right to know which factual matters and legal rules may be adverse; and
  • the right to comment on crucial material before it is used against the applicant, where fairness so requires.

However, Irish courts have held that this does not extend to a general right to be notified of all mainstream COI from public sources.

5.3 Inquisitorial vs adversarial decision‑making

In an adversarial system (e.g. ordinary civil or criminal trials), the decision‑maker (judge) decides disputes based on the evidence and arguments the parties present; the judge does not investigate independently.

In an inquisitorial system (e.g. administrative protection procedures), the decision‑maker (Minister or Tribunal) may:

  • actively gather evidence (like COI) on its own initiative; and
  • has positive duties (especially under EU law) to ensure a full and up‑to‑date picture of conditions in the country of origin.

Moyosola emphasised that even inquisitorial bodies must give affected persons a fair opportunity to know and answer matters of substance. YY and subsequent cases refine how this principle applies when the “matters of substance” are standard COI sources.

5.4 Judicial Review and Pleading Requirements

Judicial review is not a rehearing of the case on its merits. It is a procedural and legal check on whether the decision:

  • was made lawfully;
  • observed fair procedures; and
  • was within jurisdiction.

In Irish law:

  • Applicants must seek leave to bring judicial review, setting out their grounds in a statement of grounds.
  • Under Order 84 RSC, they are then generally confined to those grounds at the substantive hearing.
  • New grounds (e.g. EU law points) require a formal application to amend.

This promotes clarity, fairness to respondents, and avoids expanding proceedings beyond the issues that justified the leave grant.

5.5 Articles 41 and 47 of the Charter and the Procedures Directive

  • Article 41 Charter (right to good administration):
    • primarily binds EU institutions, but its values influence national procedures applying EU law;
    • includes the right to be heard before an adverse measure is taken.
  • Article 47 Charter (right to an effective remedy and a fair trial):
    • requires that individuals have access to an effective judicial remedy when EU rights are engaged; and
    • is usually satisfied in Irish asylum law by the availability of judicial review.
  • Procedures Directive 2005/85/EC:
    • set minimum procedural safeguards for asylum determinations in Member States, including representation and effective remedy provisions;
    • has been interpreted consistently with the YY line of authority, which does not require pre‑notification of mainstream COI.

K confirms that these EU instruments do not impose an additional requirement to pre‑notify publicly accessible, standard COI.

6. Conclusion

The decision in K v IPAT [2025] IEHC 643 provides a clear and carefully reasoned restatement of the law on COI and fair procedures in Irish international protection appeals. It does not revolutionise the law but consolidates and extends existing principles in a significant way.

The key takeaways are:

  1. No automatic right to pre‑notification of mainstream COI
    Where IPAT relies on mainstream, publicly accessible COI of the same general nature as material already relied upon, and which does not materially alter the risk picture, there is no breach of fair procedures or s.46(8)(b) in failing to notify the applicant in advance or to invite submissions on that COI.
  2. Material change and obscure COI remain special cases
    If new COI is obscure, unusual, or significantly changes the assessment in a way adverse to the applicant (as in ZA), fairness may require disclosure and an opportunity to comment. The analysis is fact‑sensitive.
  3. Section 46(8)(b) is about transparency, not automatic quashing
    Following H & A, the section does not, of itself, require that a decision be quashed where COI has not been pre‑disclosed. Instead, challenges must be framed in terms of substantive unfairness in the particular circumstances.
  4. Concrete prejudice is essential
    Applicants cannot succeed by pointing to procedural irregularities in the abstract. They must identify what specifically they would have said about the undisclosed COI and show how their inability to do so caused them real unfairness.
  5. Pleading discipline and EU law
    EU law arguments (Charter, Directives, CJEU judgments) must be pleaded expressly. Courts will not generally entertain new EU law grounds introduced at the hearing stage absent formal amendment.

In practical terms, the judgment underscores that:

  • IPAT may, without procedural impropriety, consult and rely on mainstream COI beyond that cited by applicants.
  • Practitioners must keep abreast of all major COI sources and anticipate they will form part of the decision‑making environment.
  • Challenges to IPAT decisions based solely on undisclosed mainstream COI are unlikely to succeed unless the applicant can show a material divergence in content and concrete prejudice.

Overall, K v IPAT is a coherent and authoritative application of the YY doctrine in the asylum appeals context, providing much‑needed clarity on the limits of the Tribunal’s disclosure obligations regarding COI and on the evidential burden facing applicants who seek to challenge decisions on this basis.

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