Section 50 IPA 2015 is not a Second Protection Assessment: No Duty to Re‑Run Article 15(c) or Article 8 ECHR at Refoulement Stage Absent New Material

Introduction

In M v Minister for Justice, Home Affairs and Migration [2025] IEHC 502, Ms. Justice Siobhán Phelan refused leave to seek judicial review under section 5 of the Illegal Immigrants (Trafficking) Act 2000 (as amended). The applicant, a Somali national belonging to the Gabooye Tribe and Madhiban Clan, challenged a section 50 International Protection Act 2015 (IPA 2015) refoulement decision and a deportation order, alleging (i) failure to conduct an Article 15(c) Qualification Directive assessment at refoulement stage, (ii) failure to perform an Article 8 ECHR proportionality assessment at that stage, and (iii) procedural unfairness in reliance on a US State Department country report.

The Court’s ruling establishes a clear delineation between the substantive protection assessment conducted by the International Protection Office (IPO) and the International Protection Appeals Tribunal (IPAT) and the narrower non-refoulement inquiry conducted by the Minister under section 50 at the removal stage. It also clarifies the relationship between sections 50 and 50A of the IPA 2015, and reaffirms the demanding “substantial grounds” leave threshold for judicial review in protection cases.

Case Background and Key Issues

The applicant arrived in Ireland in 2022 and sought international protection. He claimed risk of harm due to indiscriminate violence, clan hostilities, and broader instability across Somalia, with a particular focus on his minority clan status. The IPO and IPAT rejected his protection claim, including subsidiary protection under Article 15(a)–(c) of Directive 2011/95/EU (the Qualification Directive), finding state protection available and no individualized risk above the general population, relying inter alia on a 2024 US State Department report. Those decisions were not judicially reviewed.

After a refusal of permission to remain under section 49(7) IPA 2015 (which considered Articles 3 and 8 ECHR), the Minister issued a section 50 non-refoulement decision and a deportation order. The applicant sought leave to judicially review the section 50 decision, arguing that the Minister was legally obliged to:

Re‑assess Article 15(c) risk at refoulement stage and record a discrete reasoned decision on it;
Perform Article 8 ECHR proportionality at refoulement stage; and
Afford an opportunity to comment on the US State Department report before relying on it.

Summary of the Judgment

The High Court refused leave. The Court held that:

Section 50 IPA 2015 does not oblige the Minister to conduct a fresh Article 15(c) assessment at refoulement stage where the IPO/IPAT have already assessed subsidiary protection and no new material is advanced (paras 19–22).
The textual scope of section 50(1) is limited to threats to life or freedom for Convention reasons or risks of death penalty, torture or inhuman or degrading treatment or punishment; there is no EU law requirement to expand that scope so as to duplicate the protection assessment (paras 22, 20–21).
By contrast, section 50A expressly requires broader rights considerations in inadmissibility returns; the presence of those express duties in section 50A and their absence from section 50 reinforce a deliberate legislative distinction (para 21).
No procedural unfairness arose from reliance on the US State Department 2023 report, because it had already been cited at IPO stage and could have been addressed by the applicant before the IPAT and in submissions (para 25).
No obligation existed to re‑run Article 8 ECHR proportionality at section 50 where that assessment had been undertaken in the section 49 permission to remain decision and no new information was provided (para 26; MK (Albania) distinguished).
On the leave threshold, the applicant failed to disclose “substantial grounds” within the meaning of McNamara and In Re Illegal Immigrants (Trafficking) Bill 1999; the grounds were “trivial or tenuous” (para 28).

Detailed Analysis

1) The Statutory Architecture: Sections 50 and 50A IPA 2015

The decision turns on a careful reading of the IPA 2015:

Section 50(1) prohibits expulsion or return where, in the Minister’s opinion, the person would face threats to life or freedom for Refugee Convention reasons or a serious risk of the death penalty, torture, or inhuman or degrading treatment or punishment. It is aligned with core non‑refoulement principles (Refugee Convention Article 33; ECHR Article 3).
Section 50A(1)(b) explicitly mandates broader rights consideration in inadmissibility returns (e.g., returns to another EU Member State). The Court treats this as a deliberate legislative choice to expand the removal-stage inquiry in inadmissibility cases, underscoring by contrast the narrower remit of section 50 in post-determination removals (para 21).

From this structure, the Court draws a negative inference: if the Oireachtas intended a further Article 15(c) or Article 8 analysis at every refoulement decision following a full protection process, it would have said so in section 50 as it did in section 50A (paras 21–22).

2) Precedents Cited and Their Influence

McNamara v An Bord Pleanála [1995] 2 ILRM 125 and In Re Illegal Immigrants (Trafficking) Bill 1999 [2000] 2 IR 360 (at 395):
The canonical authorities for the “substantial grounds” leave threshold under section 5 of the 2000 Act. “Substantial” means reasonable, arguable, weighty; grounds must not be trivial or tenuous. Phelan J applies this threshold strictly to an ex parte leave application (para 12), ultimately finding the applicant’s complaints fall short (para 28).
Elgafaji v Staatssecretaris van Justitie (C-465/07):
Elgafaji explains that a “serious and individual threat” under Article 15(c) can be established where the level of indiscriminate violence is so high that any civilian is at real risk simply by presence. Phelan J accepts the Elgafaji framework (paras 15–16) but emphasizes that the Article 15(c) assessment had already been carried out by IPO/IPAT and was not judicially challenged (paras 17, 19–20).
X and Others v Staatssecretaris van Justitie en Veiligheid (Case C‑125/22):
Clarifies the need to consider all relevant factors—general country conditions and the applicant’s personal circumstances—when assessing Article 15(c). Again, Phelan J accepts the principle but finds it does not translate into a duty to duplicate that assessment at the section 50 stage in the absence of new evidence (paras 16, 19–22).
MK (Albania) v Minister for Justice & Equality [2022] IESC 48:
Relied on by the applicant to argue for Article 8 proportionality at refoulement stage. The Court holds that where Article 8 was assessed in the section 49 permission to remain process—and no new facts emerge—there is no obligation to repeat that exercise at section 50 (para 26).

3) The Court’s Legal Reasoning

Finality and structure of the protection process: The applicant’s protection needs, including Article 15(c), were assessed by the IPO and the IPAT, with specific reference to Elgafaji. Those determinations were not judicially reviewed (paras 6–7, 17). Section 50 is not designed to re-open that protective merits assessment absent new information (paras 19–22).
Textual fidelity to section 50: The Court adopts the “plain and ordinary meaning” of section 50(1), limiting the Minister’s refoulement inquiry to the enumerated risks (Convention reasons; death penalty; torture/inhuman or degrading treatment) (para 22). There is no CJEU authority requiring Member States to graft a fresh Article 15(c) assessment onto section 50 in such circumstances (para 22).
Legislative contrast with section 50A: The express inclusion of broader rights considerations in section 50A for inadmissibility cases reinforces the absence of a comparable duty in section 50 (para 21). The Court rejects the argument that returns to non‑EU states require “better” protection than returns to EU Member States; the point is that inadmissibility cases have not had a full protection merits determination (para 23).
Procedural fairness and country material: No unfairness arose from reliance on the US State Department 2023 report; it had been cited in the IPO decision, and the applicant had ample opportunity to engage with it before the IPAT and in written submissions (para 25).
Article 8 ECHR proportionality: The Minister had already conducted an Article 8 assessment in the section 49 decision. In the absence of new information, the Minister is not obliged to re‑do that analysis at section 50 (para 26).
Foreign recognition point (Greece): The Court will not revisit foreign determinations; the task is to review Irish decisions for legality. Divergent outcomes abroad carry no legal weight for the Irish judicial review unless they establish an Irish public law error—none was identified (para 24).
Leave threshold rigor: Applying McNamara and the 1999 Reference, the Court concludes the pleaded grounds are not reasonable, arguable, or weighty, but instead “trivial or tenuous” (para 28).

4) Impact and Forward-Looking Implications

This ruling is significant for the conduct of post‑determination removals under the IPA 2015:

Clear boundary around section 50: The Minister’s non‑refoulement analysis at removal stage is confined to the section 50(1) risks and does not require an automatic re‑run of Article 15(c) or Article 8 proportionality where those issues were already dealt with in the IPO/IPAT and section 49 processes and no new material is adduced.
Strategic litigation timing: Applicants who wish to contest subsidiary protection (Article 15(c)) or proportionality determinations must do so when those issues are decided—i.e., via judicial review of the IPO/IPAT or the section 49 decision—rather than reserving them for refoulement challenges.
Role of new evidence: The Court’s reasoning leaves space for a different outcome where genuinely new, material evidence emerges post‑IPAT showing a change in conditions or individualized risk. Absent such material, the Minister need not duplicate earlier assessments.
Country information practice: Where country reports were referenced earlier in the protection process, the Minister may rely on them at section 50 without a renewed audi alteram partem step. If wholly new COI is to be used at refoulement stage, fairness may require an opportunity to comment—though that question was not squarely decided here.
Distinction preserved between sections 50 and 50A: The judgment consolidates the legislative design: section 50A has bespoke wider safeguards for inadmissibility returns precisely because the merits of the protection claim have not been adjudicated in the State.

Complex Concepts Simplified

Non-refoulement (section 50 IPA 2015): A prohibition on expelling or returning someone to a place where they face specific serious harms—threats to life or freedom for Convention reasons, or a real risk of death penalty, torture, or inhuman or degrading treatment.
Article 15(c) (Qualification Directive): A subsidiary protection ground covering a serious and individual threat to a civilian’s life or person due to indiscriminate violence in situations of armed conflict. Per Elgafaji, extremely high levels of indiscriminate violence can, in themselves, create such risk.
IPO and IPAT: The administrative bodies that decide international protection applications at first instance (IPO) and on appeal (IPAT). They evaluate refugee status and subsidiary protection, including Article 15(c).
Section 49 (permission to remain): A residual, discretionary permission where the Minister may consider, among other things, a person’s rights under the ECHR (including Article 8 private and family life) after protection claims are refused.
Section 50A IPA 2015: A special non-refoulement provision for returns following inadmissibility decisions. It expressly requires broader rights considerations at the removal stage (unlike section 50).
“Substantial grounds” leave threshold: Under section 5 of the 2000 Act, applicants must demonstrate reasonable, arguable, weighty grounds; claims that are trivial or tenuous will be refused at leave stage (McNamara; In Re Illegal Immigrants (Trafficking) Bill 1999).

Practical Takeaways for Practitioners

Raise and evidence Article 15(c) risks comprehensively before the IPO and IPAT, and challenge any adverse determinations promptly by judicial review where appropriate. Do not expect section 50 to provide a second merits assessment.
Ensure Article 8 ECHR proportionality is fully argued at the section 49 stage. Absent new facts, it need not be revisited at refoulement.
If relying on new country conditions or individualized developments post‑IPAT (e.g., escalation of conflict in a relevant region, fresh threats), put forward concrete, up‑to‑date evidence with the section 50 submissions and identify why it was not available earlier.
Country reports cited earlier in the process may be relied upon at section 50 without fresh consultation. If the Minister intends to rely on novel COI at refoulement, consider seeking an opportunity to comment on fairness grounds.
Divergent outcomes in other states (e.g., prior recognition in another EU state) are not, without more, a ground to impugn Irish decisions. Focus on identifying reviewable public law error in the Irish process.

Conclusion

M v Minister for Justice, Home Affairs and Migration decisively clarifies the limits of section 50 IPA 2015. The non‑refoulement decision at removal stage is not a vehicle to re‑litigate Article 15(c) or Article 8 ECHR where those matters have already been addressed in the protection and permission‑to‑remain processes and no new material is presented. The Court’s reliance on the textual distinction between sections 50 and 50A, together with a robust application of the “substantial grounds” leave standard, underscores a coherent and finality‑oriented architecture for international protection in Ireland.

For future cases, the practical message is clear: protection and human rights issues must be argued at the appropriate stage and, if necessary, challenged then. Section 50 remains a crucial safeguard against core refoulement risks, but it is not a second merits determination. This judgment will likely streamline removal-stage litigation and sharpen the evidential focus for any post‑determination challenges to be grounded in genuinely new, material developments.