No Exceptional Point: Section 5 of the 2000 Act Encompasses Section 50 Refoulement Opinions; Article 15(c) Not Required at Refoulement Stage

No Exceptional Point: Section 5 of the 2000 Act Encompasses Section 50 Refoulement Opinions; Article 15(c) Not Required at Refoulement Stage

Introduction

This ruling of the High Court of Ireland (Phelan J.) concerns an application by the applicant, M.Y.M., for a certificate for leave to appeal pursuant to section 5(6)(a) of the Illegal Immigrants (Trafficking) Act 2000 (as amended) (the 2000 Act). The application followed the Court’s earlier refusal (on 18 September 2025: [2025] IEHC 502) to grant leave to seek judicial review of (i) a refoulement opinion issued under section 50 of the International Protection Act 2015 (the 2015 Act) and (ii) a deportation order made under section 51 of the 2015 Act.

The certificate application was heard ex parte on 7 November 2025. The Respondent Minister was not put on notice, consistent with the Court’s view that, at this stage, the decision would not affect the Minister’s interests in any material way that could not be safeguarded later if necessary.

Two proposed questions were advanced as points of law of exceptional public importance for which an appeal was said to be desirable in the public interest:

  • Whether section 5 of the 2000 Act, interpreted literally, excludes section 50 refoulement “decisions” from its restrictive regime and, if so, whether a purposive interpretation is permitted to include them.
  • Whether the Minister is required to conduct an Article 15(c) Qualification Directive assessment at the section 50 refoulement stage, especially where an applicant’s refugee claim failed on credibility, originates from a conflict-affected country with indiscriminate violence, and belongs to a vulnerable minority group.

Summary of the Judgment

The High Court refused the application for a certificate for leave to appeal on both questions. Applying the well-settled certification principles, the Court held that:

  • There is no legal uncertainty justifying certification about whether section 5 of the 2000 Act encompasses challenges framed at the section 50 non-refoulement stage. The Court considered the Supreme Court’s reasoning in A.W.K. v Minister for Justice [2020] IESC 10 and the High Court’s decision in E.D. and A.D. (Zimbabwe) v Minister for Justice [2024] IEHC 303 (with the Supreme Court refusing leave to appeal in [2024] IESCDET 144) to have settled the matter. A section 50 “negative opinion” is a necessary staging post to the section 51 deportation decision and is not a free‑standing decision to which the section 5 regime does not apply.
  • Section 50 of the 2015 Act does not impose a duty on the Minister to conduct an Article 15(c) Qualification Directive assessment at the refoulement stage. Section 50’s text is finite and clear, focusing on (i) threats to life or freedom for Convention reasons and (ii) serious risk of death penalty, torture, or other inhuman or degrading treatment or punishment. Article 15(c) forms part of the earlier international protection process (with avenues for subsequent application or revocation in case of changed circumstances), not the terminal section 50 stage. No legal uncertainty or conflicting jurisprudence was identified.

Because the applicant failed to demonstrate a point of law of exceptional public importance or that an appeal was desirable in the public interest, the certificate was refused.

Analysis

Statutory Context and Architecture

The decision turns on the interlocking framework of the 2000 Act and the 2015 Act:

  • Section 5 of the 2000 Act imposes a restrictive regime on judicial review of specified immigration decisions, including heightened leave thresholds and restrictions on appeals, requiring certification that a point of law of exceptional public importance arises and that an appeal is desirable in the public interest.
  • Section 51 of the 2015 Act provides for the making of deportation orders. Such orders are expressly captured by the section 5 regime (see section 5(1)(oj) of the 2000 Act).
  • Section 50 of the 2015 Act provides the non-refoulement prohibition at the end of the protection process. Its focus is the Minister’s opinion whether removal would expose a person to:
    • threats to life or freedom for Convention reasons (race, religion, nationality, membership of a particular social group, political opinion); or
    • a serious risk of death penalty, torture, or other inhuman or degrading treatment or punishment.
    The Court emphasised that section 50 operates as the final safeguard within a broader system that already evaluates protection needs (including risks under Article 15 of the Qualification Directive) at earlier stages, with additional mechanisms such as subsequent applications (section 22 of the 2015 Act) or revocation of deportation orders to address post‑decision changes.

Precedents Cited and Their Influence

The Court carefully applied long-established certification jurisprudence and recent immigration case law:

  • Glancré Teoranta v An Bord Pleanála [2006] IEHC 250:
    • Sets the core certification criteria: the point must be one of exceptional public importance, uncertainty in the law must be demonstrated, the jurisdiction is to be exercised sparingly, and the appeal should yield affirmative public benefit beyond the individual case.
  • Kenny v An Bord Pleanála [2002] 1 ILRM 68:
    • Highlights (in obiter) the logical difficulty in refusing leave on “substantial grounds” yet certifying a point of exceptional public importance within the same decision. While not an absolute bar, it underscores the high threshold for certification when leave has already been refused.
  • Dunnes Stores v An Bord Pleanála [2015] IEHC 387:
    • Streamlines the test to four essentials: exceptional public importance; desirability in the public interest; uncertainty in the law; and transcendence beyond the facts of the individual case.
  • S.A. v Minister for Justice and Equality (No. 2) [2015] IEHC 266:
    • Adds practical guardrails for certification under section 5(6)(a): prompt application; the question must be determinative; the appeal should add value beyond existing appellate matters; and the question must be precisely formulated.
  • Ógalas Ltd v An Bord Pleanála [2015] IEHC 205:
    • Stresses that uncertainty in the law is a necessary companion to exceptional importance; mere emergence of a legal point is insufficient without genuine uncertainty that implicates the common good.
  • Shillelagh Quarries Ltd v An Bord Pleanála [2020] IEHC 22:
    • Directs courts to focus on whether the law on the point is unclear or evolving; if not, the point is unlikely to be of exceptional public importance.
  • A.W.K. v Minister for Justice [2020] IESC 10:
    • Supreme Court guidance that context can be “critical” and statutory interpretation should not produce absurd results. Crucially, attempts to evade section 5’s restrictions by reframing a challenge to decisions ancillary to deportation (there, a review under section 49(7) of the 2015 Act) are contrary to the purpose of the statute.
  • E.D. and A.D. (Zimbabwe) v Minister for Justice [2024] IEHC 303, and Supreme Court determination refusing leave [2024] IESCDET 144:
    • The High Court viewed a section 50 negative opinion as a “necessary staging post” to a section 51 deportation order, not a standalone decision. The Supreme Court refused leave, noting the application of orthodox interpretive principles (contextual reading and avoidance of absurdity, cf. Nestor v Murphy [1976] IR 316) and deeming the issues case-specific, not of general public importance.

These authorities effectively foreclosed the applicant’s first proposed question by confirming that section 50 refoulement considerations are integrated into, and not separable from, the deportation decision—thereby attracting section 5’s restrictive regime.

Legal Reasoning

1) Section 5’s Reach Over Section 50 Refoulement

The Court identified two decisive obstacles to certification on the first question:

  • Procedural posture and concession: At the leave stage, the applicant expressly accepted that section 5 applied to both the section 50 and section 51 decisions. Attempting to recast the point at certification could not create a point of law of exceptional public importance, especially where the issue was neither argued nor decided earlier.
  • Substantive clarity: Even if that hurdle were surmounted, there is no legal uncertainty in light of A.W.K. and E.D. and A.D. (Zimbabwe), reinforced by the Supreme Court’s refusal of leave in IESCDET 144. A section 50 opinion is a necessary step in the deportation process, not an independent decision that could escape section 5. Treating it as freestanding would undermine the statutory purpose and lead to absurd results—precisely the interpretive outcome Irish courts avoid.

The Court thus held the law to be “crystal clear,” leaving no room for certification on this ground.

2) No Article 15(c) Duty at the Section 50 Stage

On the second question, the Court separated its prior merits assessment (in refusing leave) from the distinct certification test, but reached the same endpoint: no legal uncertainty and thus no basis for certification.

  • Textual limits of section 50: The provision’s wording is “expressly stated, unambiguous and finite.” It requires consideration of two specific risk categories—Convention reasons and the death penalty/torture/inhuman or degrading treatment—not Article 15(c) indiscriminate violence.
  • System design: Risks under Article 15(c) are evaluated within the international protection system at earlier stages (first-instance determination, appeal, and where appropriate, subsequent applications) and via revocation processes if circumstances change after a deportation order. Section 50 is not a vehicle to reopen protection grounds unless they fit its explicit non‑refoulement criteria.
  • Absence of contrary authority or confusion: The applicant could not point to EU law mandating Article 15(c) analysis at the section 50 stage, nor to any conflicting domestic decisions or practitioner uncertainty about section 50’s scope. The Court viewed the applicant’s construction as adding a non-existent limb to section 50 without legal foundation.

Given the lack of uncertainty and the cumulative nature of the certification test (which also requires that an appeal be desirable in the public interest), certification was refused.

Impact and Significance

  • Consolidation of anti-circumvention principle: Litigants cannot avoid section 5’s restrictive regime by isolating challenges to steps embedded in the deportation process. Section 50 refoulement opinions are tied to section 51 deportations and so fall within section 5.
  • Clear delineation of section 50’s content: The High Court reaffirms that section 50 is a targeted non-refoulement safeguard. It does not require a fresh Article 15(c) assessment. Risks of indiscriminate violence are for the protection process and, if circumstances change, for subsequent application/revocation mechanisms.
  • Elevated bar for certification after leave refusal: Echoing Kenny, courts will be slow to find a point of exceptional public importance where leave was refused even on the relatively low “substantial grounds” threshold. Applicants must show genuine legal uncertainty with systemic implications; mere disagreement with the outcome will not suffice.
  • Procedural discipline: The case underscores the need to identify and precisely formulate determinative certification questions promptly, and to maintain consistency in positions taken at leave and certification stages. Late and shifting arguments will carry little weight in meeting the exacting certification criteria.

Complex Concepts Simplified

  • Refoulement: The prohibition on sending a person to a country where they face threats to life or freedom for Convention reasons or a serious risk of the death penalty, torture, or inhuman or degrading treatment or punishment.
  • Section 50 (2015 Act): The final-stage non-refoulement assessment by the Minister before enforcing a deportation order. It is not a wholesale re-evaluation of all protection issues.
  • Section 51 (2015 Act): The statutory provision under which deportation orders are made; such orders are expressly within the section 5 regime of the 2000 Act.
  • Section 5 (2000 Act) regime: A restrictive set of rules for judicial review of specified immigration decisions, including a higher leave threshold and strict controls on appeals, which require certification that a point of law of exceptional public importance arises and that an appeal is desirable in the public interest.
  • Article 15(c) (Qualification Directive): Protects against serious and individual threats to life or person due to indiscriminate violence in situations of armed conflict; ordinarily assessed during the international protection process, not at the section 50 refoulement stage.
  • Point of law of exceptional public importance: A legal issue whose resolution is uncertain, transcends the individual case, and whose clarification is desirable in the public interest; certification for appeal is granted sparingly.
  • “Necessary staging post”: A step that is integral to reaching a final decision (here, deportation), not a free‑standing or independent decision amenable to separate treatment outside the statutory regime governing the final outcome.

Conclusion

M.Y.M. v Minister for Justice, Home Affairs and Migration [No. 2] [2025] IEHC 611 reinforces two important propositions in Irish immigration law and appellate procedure:

  • First, section 5 of the 2000 Act applies to challenges framed at the section 50 refoulement stage because that opinion forms part of the deportation pathway and is not a discrete decision. This aligns with A.W.K. and the E.D. and A.D. (Zimbabwe) line of authority, underscored by the Supreme Court’s refusal of leave in IESCDET 144.
  • Second, section 50 does not oblige the Minister to perform an Article 15(c) assessment anew at the refoulement stage. The statutory text is finite; Article 15(c) risks are assessed in the protection process and can be revisited via subsequent applications or revocation if circumstances materially change.

The judgment provides a clear message on certification: absent genuine uncertainty in the law and a demonstrable public interest in clarification, the high threshold under section 5(6)(a) will not be met. Practitioners should frame certification questions with precision, ensure they are determinative, and avoid attempting to relitigate rejected grounds under the guise of “exceptional public importance.” Strategically, protection and Article 15(c) arguments must be advanced—and, if necessary, renewed through the appropriate statutory mechanisms—at the correct juncture, rather than at the terminal section 50 stage.

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