Refusal to Extend Time to Appeal under Regulation 4(4) Is Not a “s.5 Decision”: No Certificate to Appeal Required

1) Introduction

GB v The International Protection Appeals Tribunal and Ors ([2025] IEHC 734) is a High Court judicial review decision concerned with a narrow but practically important procedural question in international protection litigation: whether a refusal by the International Protection Appeals Tribunal (“IPAT”) to extend time for lodging an appeal under Regulation 4(4) of the International Protection Act 2015 (Procedures and Periods for Appeals) Regulations 2017 (“the 2017 Regulations”) is governed by the restrictive judicial review regime in s.5 of the Illegal Immigrants (Trafficking) Act 2000 (“the 2000 Act”).

The issue arose in the “afterlife” of an earlier judgment (20 October 2025) in which the Court refused to quash IPAT’s decision (2 July 2025) refusing an extension of time. Following costs being awarded to the respondents on 25 November 2025 (for the substantive judicial review), the Court now addressed:

  • whether s.5 of the 2000 Act applied to this type of determination, and therefore
  • whether the applicant required a certificate/leave to appeal to the Court of Appeal under the s.5 regime.

The applicant argued that s.5 did not apply because Regulation 4(4) determinations are not among the decisions enumerated in s.5(1), and because the Minister could have—but did not—prescribe them under s.5(9). The respondents argued that such determinations should be treated as implicitly within s.5 (or “absorbed” into it) as part of the overall international protection decision-making “suite”, relying principally on the Supreme Court’s approach in AWK v Minister for Justice [2024] 1 IR 539 (“AWK”) and also on MYM v Minister for Justice Home Affairs and Migration [2025] IEHC 611.

2) Summary of the Judgment

Ms Justice Miriam O’Regan held that the respondents had not demonstrated that s.5 of the 2000 Act applies to a determination under Regulation 4(4) refusing to extend time to appeal. Accordingly, the proceedings were not subject to s.5 such that a certificate for leave to appeal would be required.

The Court further ordered that the applicant should have the costs of this “certificate” portion of the matter (to be adjudicated if not agreed), notwithstanding that the respondents had previously obtained costs in the substantive judicial review.

3) Analysis

A) Precedents Cited

(i) AWK v Minister for Justice [2024] 1 IR 539

AWK concerned whether a Ministerial “review decision” under s.49(7) of the International Protection Act 2015 was, for the purposes of s.5 of the 2000 Act, effectively a decision “under” s.49(4)(b) (a category captured by s.5), or instead a separate decision outside s.5.

The Supreme Court resolved the issue primarily by a literal interpretation of the statutory text (with contextualisation), concluding that after a negative review there was in substance one subsisting decision—the original s.49(4)(b) decision—so that the review outcome fell within the same s.5-controlled decision architecture. The Court observed that treating the review as outside s.5 would produce consequences “entirely discordant” with the legislative scheme.

In GB, the respondents sought to extend the logic of AWK: if IPO and IPAT decisions on protection are subject to s.5, then a refusal to extend time for an appeal (a procedural gatekeeping decision) should also be subject to s.5, otherwise the overall scheme would be incoherent. The High Court rejected that extrapolation, stressing that AWK’s conclusion depended on the textual structure of s.49 itself, not on an implication that any closely-related procedural step becomes “absorbed” into s.5.

(ii) Kadri v Governor of Wheatfield Prison [2012] IESC 27

AWK cited Kadri v Governor of Wheatfield Prison [2012] IESC 27 for the proposition that, under s.5 of the Interpretation Act 2005, the judicial task is constructive interpretation, not rewriting. In GB, this idea became central: to treat Regulation 4(4) as within s.5 by “implication” would, in the Court’s view, go beyond permissible interpretation and amount to rewriting the Regulations to insert a s.5 consequence that was not expressed.

(iii) MYM v Minister for Justice Home Affairs and Migration [2025] IEHC 611

In MYM v Minister for Justice Home Affairs and Migration [2025] IEHC 611, Ms Justice Phelan held that where a challenge to a s.50 refoulement decision was taken at the same time as a challenge to a s.51 deportation order (the latter being expressly covered by s.5(1)), both were governed by s.5 in that context.

The respondents invoked MYM to support a “context-driven” approach preventing absurdity. Ms Justice O’Regan distinguished MYM on its facts and legal setting: the s.50 and s.51 measures were taken together in a tightly-linked administrative moment, whereas a Regulation 4(4) time-extension refusal is a procedurally distinct determination focused on the reasons for delay rather than the merits of protection.

B) Legal Reasoning

The Court’s reasoning is best understood as a structured refusal to extend AWK beyond its textual foundations, coupled with deference to the specific drafting choices made in the 2000 Act and the 2017 Regulations.

  1. AWK was decided on text, not implication.
    The Court emphasised that AWK ultimately turned on a literal reading of s.49 and how that section knitted “review” into the “decision” under s.49(4)(b). That is materially different from the respondents’ submission here, which required the Court to find s.5 applicable to Regulation 4(4) by implication or “absorption”.
  2. Regulation 4(4) is “separate and distinct” from IPO/IPAT merits decisions.
    The Court accepted that IPO and (if pursued) IPAT decisions concern the international protection application. By contrast, a Regulation 4(4) determination is confined—by Regulation 4—to whether the criteria in Regulation 4(5) concerning delay are satisfied. This functional and legal separation mattered: unlike AWK’s “single subsisting decision” analysis, the Regulation 4(4) decision is not merely a different stage of the same merits decision.
  3. The regulatory scheme contains its own extension mechanism and no outer time limit for seeking it.
    The Court noted that the scheme is not simply “10 days to appeal”; it provides an internal mechanism to extend time if Regulation 4(5) is met. Further, the Regulations contain no time limit for when an extension application must be made. This feature undermined an “absurdity” argument: the Minister appears to have chosen a design where extension applications are not confined by a regulatory outer limit, making it harder to claim that absence of s.5’s 28-day JR limit is necessarily incoherent.
  4. s.5(9) of the 2000 Act: the “if intended, it could have been prescribed” point.
    The applicant argued, and the Court treated as weighty, that the Minister has a power under s.5(9) to prescribe additional decisions to which s.5 applies. There have been various additions over time, yet Regulation 4(4) refusals have not been included since the 2017 Regulations were made. This supported the conclusion that the omission was not accidental.
  5. Interpretation limits: looking to the 2015 Act to “pull” Regulations into s.5 would be rewriting.
    The Court accepted that context and surrounding provisions may be used, but held that the respondents’ approach would require the Court to move beyond interpreting the Regulations “as a whole” and instead use the 2015 Act to treat a non-enumerated regulatory decision as s.5-covered. That step was characterised as crossing the line from constructive interpretation into impermissible legislative supplementation.
  6. No obscurity/ambiguity/absurdity in Regulation 4(4).
    The Court held that Regulation 4 is not obscure, ambiguous, or absurd on its face and can stand coherently without importing s.5 consequences. The Court also noted that although the long title to the 2017 Regulations references efficiency and expeditious disposal, there is no mention of s.5.

Note on a textual infelicity: Parts of the “Decision” section refer to “s.5 of the 2005 Act” in circumstances where the dispute is plainly about s.5 of the 2000 Act. Read in context, these appear to be typographical slips rather than a shift in the legal issue; the operative holding is clearly that s.5 of the 2000 Act does not apply to Regulation 4(4) refusals.

C) Impact

The immediate effect is procedural but significant:

  • No s.5 certificate/leave requirement for appealing the High Court’s decision in judicial review proceedings that challenge an IPAT refusal to extend time under Regulation 4(4).
  • Such challenges are not automatically forced into the 28-day s.5 time limit (and associated restrictive regime), and instead may fall to the ordinary judicial review framework (including the general three-month period under Order 84, subject to usual principles on promptness and discretion).
  • The decision reinforces a text-first boundary: courts will be slow to “absorb” non-enumerated procedural determinations into s.5 merely because they arise within the broader international protection process.

More broadly, the judgment signals that where the Oireachtas (or the Minister, exercising delegated power) has created a closed list of decisions attracting an exceptional procedural regime, courts are likely to resist expanding that list by implication—especially where a specific statutory mechanism exists (here, s.5(9)) to extend the list if desired.

4) Complex Concepts Simplified

s.5 of the Illegal Immigrants (Trafficking) Act 2000
A special judicial review regime for certain immigration/protection decisions, typically involving a short time limit and additional procedural restrictions (including, in many contexts, a requirement for permission/certification to appeal). Whether a decision falls within s.5 can determine both timing and appealability.
Regulation 4(4) (2017 Regulations)
A procedural power allowing IPAT to decide whether to extend time for lodging an appeal in an international protection case. It does not decide the protection claim; it decides whether an out-of-time appeal may proceed.
“Enumerated decisions”
Decisions expressly listed in legislation as being covered by a special rule. If a decision is not listed, a court must decide whether the statute nevertheless brings it within the rule by proper interpretation—without impermissibly adding to the list.
Literal vs purposive interpretation
“Literal” focuses on the ordinary meaning of the text (read in its immediate statutory setting). “Purposive” looks more to the broader purpose of the legislation to resolve ambiguity. GB treats AWK as ultimately a textual/literal decision, limiting how far “purpose” can be used to expand s.5 coverage to non-listed decisions.
Constructive interpretation vs rewriting
Courts may interpret text to make coherent sense of it, but they may not effectively insert new provisions. GB holds that importing s.5 into Regulation 4(4) would cross that line.

5) Conclusion

[2025] IEHC 734 establishes a clear procedural precedent: an IPAT refusal to extend time to appeal under Regulation 4(4) of the 2017 Regulations is not subject to s.5 of the Illegal Immigrants (Trafficking) Act 2000 merely because it arises within the international protection process.

The Court’s approach is notably disciplined: it treats AWK v Minister for Justice [2024] 1 IR 539 as authority grounded in the specific textual integration of “review” within s.49, and it rejects a broader theory of “absorption” based on scheme coherence alone. In doing so, the judgment underscores that exceptional procedural restrictions must be justified by clear legislative text (or clear delegated prescription), not by implication.