Separate Humanitarian Assessment and the “Something More” Threshold in Section 49 Reviews:
Commentary on S.M. v Minister for Justice [2025] IEHC 629

1. Introduction

This judgment of the High Court (Bradley J., 14 November 2025) in S.M. v Minister for Justice [2025] IEHC 629 is a significant addition to the growing body of case law interpreting section 49 of the International Protection Act 2015 (“the 2015 Act”). It is particularly important because:

it was selected as a pathfinder (test) case for a cohort of similar challenges;
it clarifies the scope and structure of the Minister’s residual humanitarian discretion under s.49(3)(b);
it explains what is needed to comply with the duty to give reasons in a s.49(7) review;
it applies – and in practice consolidates – the Supreme Court’s “something more”/exceptionality doctrine from MK (Albania) to the s.49 context; and
it differentiates cases where a s.49 decision is unlawful (HK (Western Sahara), A (Albania)) from cases where broadly similar outcomes are upheld because the decision-maker has properly structured and expressed the reasoning.

The applicant, a Zimbabwean national, had:

been refused both refugee status and subsidiary protection by the International Protection Office (“IPO”);
had that refusal affirmed by the International Protection Appeals Tribunal (“IPAT”) on credibility grounds; and
previously been refused permission to remain (leave to remain) under s.49(4)(b) of the 2015 Act.

After the IPAT dismissed his protection appeal, the applicant invoked the statutory review mechanism under s.49(7), submitting extensive new material regarding his private life, integration, volunteering, employment and medical/psychological condition (including a medico-legal SPIRASI report and an FCE scan). A caseworker in the IPO reviewed this material and recommended affirming the earlier refusal of permission to remain; a second caseworker, acting under the Carltona principle, formally made the Minister’s decision under s.49(4)(b).

The central legal issue was whether that review decision was unlawful because of:

a failure to conduct a separate and distinct humanitarian assessment under s.49(3)(b), over and above the assessment of rights under the European Convention on Human Rights (“ECHR”); and/or
inadequate reasons, particularly concerning the applicant’s humanitarian circumstances and medical evidence.

The applicant argued that his case was “on all fours” with A (Albania) v Minister for Justice [2023] IEHC 692, where Simons J. had quashed a s.49 decision for precisely these deficiencies. The Minister contended that, properly read, the s.49 review in S.M. displayed structured engagement with all statutory factors, clearly distinguished between ECHR analysis and wider humanitarian discretion, and provided adequate reasons.

2. Summary of the Judgment

Bradley J. dismissed the application for judicial review and refused all reliefs sought. The key findings were:

Lawfulness of the s.49(7) review
The Minister (acting through IPO caseworkers) lawfully exercised the s.49(7) review power. The decision:
- addressed each of the factors in s.49(3);
- conducted a distinct humanitarian analysis under s.49(3)(b), in addition to ECHR rights analysis; and
- applied the now-settled principle that private life developed during precarious residence will only rarely outweigh the State’s interest in immigration control absent “something more”.
Reasons were adequate
The decision complied with s.49(5) and the broader jurisprudence on reasons (esp. Connelly v An Bord Pleanála). There was real engagement with the material submitted on behalf of the applicant, not merely a recital of submissions. The report made clear:
- what evidence was considered (including medical and integration evidence);
- how it was evaluated; and
- why it was insufficient to tip the balance in favour of permission to remain.
Distinguishing A (Albania) and HK (Western Sahara)
The court held that the defects identified in those cases were absent here:
- In HK and A (Albania), the Minister had effectively confined the s.49/humanitarian inquiry to the ECHR threshold, failing to treat non-rights-based humanitarian factors as independent grounds.
- In S.M., by contrast, the decision-maker explicitly recognised that humanitarian considerations could justify permission to remain even if ECHR rights were not breached and then weighed those factors.
Role of medical and SPIRASI evidence
The SPIRASI and FCE medical reports had already been considered by IPAT, which nevertheless rejected the protection claim on credibility grounds. That IPAT decision was not challenged. The Minister was therefore entitled to:
- treat the SPIRASI report as evidence of health conditions; but
- decline to re-open the credibility findings about who inflicted the injuries or whether they were inflicted as alleged.
From a humanitarian perspective, the Minister was entitled to find that the medical evidence did not show that removal to Zimbabwe would cause a serious decline in health or a significant interference with ECHR rights, especially in light of country-of-origin information showing relevant treatment was available in Zimbabwe.
Application of the “something more” standard
Applying MK (Albania), the court concluded that the applicant’s circumstances – about 2¼ years in the State, some employment, volunteering, church involvement, and chronic but not life-threatening health issues – did not amount to the “something more” required to displace the pre-loaded weight of the State’s interest in maintaining an effective immigration system.
Costs
The court’s provisional view was that, as the Minister was entirely successful, the default rule under the Legal Services Regulation Act 2015 and Order 99 RSC (recast) applied: the Minister would be presumptively entitled to costs, subject to further submissions at a “for mention” date.

3. Statutory and Doctrinal Framework

3.1 Section 49 of the International Protection Act 2015

Section 49 governs “permission to remain” (sometimes called “leave to remain”) in the context of failed international protection claims. The key elements are:

s.49(1): Once the IPO recommends, and the IPAT affirms, that an applicant is not entitled to a refugee or subsidiary protection declaration (s.39(3)(c)), the Minister shall consider whether to give the applicant a permission to remain.
s.49(2): The Minister must have regard to:
- information submitted by the applicant under s.49(6) (and under s.49(9) on review); and
- any relevant information presented in the protection process.
s.49(3): In deciding whether to grant permission, the Minister must have regard to the applicant’s family and personal circumstances and right to respect for private and family life, having due regard to:
- (a) nature of connection with the State;
- (b) humanitarian considerations;
- (c) character and conduct (including criminal convictions);
- (d) national security and public order; and
- (e) other considerations of the common good.
s.49(4): After considering these matters, the Minister must decide to:
- (a) grant permission; or
- (b) refuse permission.
s.49(5): The decision must be notified in writing and accompanied by a statement of reasons.

Section 49(3) is structurally similar to s.3(6) of the Immigration Act 1999 (referred to in the judgment), which sets out factors to be considered in deportation decisions. The courts have repeatedly described these provisions as conferring a “broad, residual humanitarian discretion”.

3.2 The s.49(7) Review Mechanism

The litigation in S.M. specifically concerned a review of an earlier refusal of permission to remain:

s.49(7): Where IPAT affirms a negative recommendation under s.39(3)(c), the Minister must, upon receiving information under s.49(9), review the earlier refusal made under s.49(4)(b).
s.49(8): The review is to be conducted under the same framework as the first instance decision (s.49(2)–(5)), with modifications to include information submitted under s.49(9).
s.49(9): For the purpose of the review, and within a prescribed period after receipt of the IPAT decision, the applicant:
- may submit new information that would have been relevant to the earlier s.49(4)(b) decision; and
- must notify the Minister of any change of circumstances relevant to that decision.

Thus, the review is not a mere re-affirmation exercise: it is a fresh application of the same statutory criteria, taking into account any new or updated information provided after the IPAT’s decision.

3.3 The Carltona Principle

The judgment notes (relying on ASA v Minister for Justice and Equality [2022] IESC 49 and as observed in A (Albania)) that, in accordance with the Carltona doctrine, decisions under s.49 are made by officials within IPO as the alter ego of the Minister. The “Minister’s decision” is therefore legally the decision of the appointed IPO caseworkers, provided they act within the statutory framework.

4. Precedents and Prior Case Law

4.1 HK (Western Sahara) v Minister for Justice [2022] IECA 141

In HK, the Court of Appeal (Donnelly J.) quashed a s.49 decision because the Minister:

had purported to consider “humanitarian considerations” only through the prism of Articles 3 and 8 ECHR; and
had failed to treat aspects such as mental health – which did not reach the ECHR threshold – as potentially independent humanitarian factors.

Donnelly J. emphasised that:

the obligation to give reasons must be judged by reference to the actual text of the decision; and
if the language used shows that the humanitarian consideration is confined to ECHR analysis, the decision betrays an error of law.

The critical passage (cited by Bradley J.) notes that in HK:

“the conclusion in relation to humanitarian considerations was directed, and directed only, to the matters…in the assessment of how they affected Article 3 and Article 8 ECHR rights but not to a separate consideration of purely humanitarian concerns which did not reach the level of rights…The Review gives no indication that the reviewer considered and applied the legal requirement that humanitarian considerations must go further than considerations of whether Article 8 ECHR rights in particular had been violated.”

This set the template for the “rolled-up ECHR error”: a s.49 decision is invalid if it collapses the statutory humanitarian inquiry into a simple question of whether ECHR rights are breached.

4.2 A (Albania) v Minister for Justice [2023] IEHC 692

In A (Albania), Simons J. applied HK to quash another s.49 decision. The Minister’s report:

listed the statutory factors in s.49(3);
summarised the applicant’s submissions; but
contained virtually no evaluative engagement with those submissions, and assessed matters almost entirely in ECHR terms.

Simons J. distilled several propositions (later relied upon by the applicant in S.M.), including that:

the s.49 inquiry is wider than, and distinct from, the ECHR analysis;
no test of “exceptional circumstances” is required for a s.49 permission as a matter of domestic law (although “exceptionality” may be descriptive of the circumstances where leave is typically granted); and
the Minister must provide substantive engagement with submissions; it is insufficient merely to recite them and then state a conclusion.

The wording in A (Albania) was “identical” to that condemned in HK: the humanitarian subsection was expressly tied to the ECHR threshold, with no recognition that humanitarian considerations can exist below that threshold.

4.3 DE (an infant) v Minister for Justice [2018] 3 IR 326

DE (Supreme Court, Clarke CJ and O’Donnell J) concerned the Minister’s power under s.3(11) of the 1999 Act to revoke a deportation order – a power conceptually very close to the s.49 humanitarian discretion.

Key points drawn on in S.M. include:

There is a distinction between:
- decisions about legal rights and entitlements (e.g. protection status, ECHR compliance), and
- decisions about broad humanitarian leave, where the issue is not whether there is a right to remain, but whether, “all things considered”, the Minister should allow the person to stay.
Clarke CJ described this humanitarian jurisdiction as:
“very much at the open-ended end of the spectrum…subject only to the entitlement of a relevant person to make representations…and to have the Minister consider those representations.”
O’Donnell J stressed that humanitarian considerations are not confined to scenarios that reach ECHR thresholds: situations falling short of an Article 3 or Article 8 breach may nevertheless justify — but do not require — the grant of humanitarian leave to remain.

This duality – between “must grant” (rights-based) and “may grant” (discretionary humanitarian) leave – is central to Bradley J.’s analysis of s.49.

4.4 MK (Albania) v Minister for Justice [2022] IESC 48; [2024] 2 IR 113

In MK (Albania), the Supreme Court (O’Donnell CJ for the majority) addressed the Article 8 ECHR proportionality analysis in cases where an individual has built private life in a host country while their immigration status remains precarious.

The Court endorsed the idea – long developed in Strasbourg jurisprudence and in CI v Minister for Justice – that:

Article 8 does not confer a right to choose the country of residence;
where residence is precarious, the State’s interest in maintaining an orderly immigration system is pre-loaded with significant weight in the Article 8 proportionality balance; and
refusal of leave to remain (or deportation) will almost always be justified unless the case features “something more” – circumstances of a sort often described (descriptively, not as a rigid test) as “exceptional”.

O’Donnell CJ described “something more” as potentially including factors such as:

serious physical or mental health conditions;
LGBTQI+ issues or particular vulnerabilities;
the manner of arrival and the person’s awareness of their precarious position;
the depth and nature of personal relationships; and
any combination of circumstances that tips the balance away from the ordinarily decisive State interest.

Bradley J. uses this framework in S.M. not only for the Article 8 proportionality assessment, but also to articulate how the Minister’s general humanitarian discretion is to be exercised where an applicant has only ordinary, “precarious” private life ties.

4.5 Paposhvili v Belgium, AM (Zimbabwe) and Medical Removal Cases

The judgment refers to the Strasbourg Court’s decision in Paposhvili v Belgium and its consideration in AM (Zimbabwe) v Secretary of State for the Home Department [2020] UKSC 17. These authorities expand the circumstances in which removal of a seriously ill person may breach Article 3 ECHR – where there is a real risk of a “serious, rapid and irreversible decline in…health resulting in intense suffering or a significant reduction in life expectancy”.

In DE, the Supreme Court interpreted this line of case law and framed a two-step approach:

The applicant must first adduce evidence capable of showing a real risk of such a serious decline upon removal.
Only then does the obligation shift to the State to dispel any doubts, including by considering the medical conditions and healthcare available in the receiving State.

S.M. applies this approach by examining whether the SPIRASI and FCE evidence, together with any other medical material, crosses the first threshold. The High Court accepts the Minister’s conclusion that it does not.

4.6 Connelly v An Bord Pleanála [2018] IESC 31; [2021] 2 IR 752

Connelly remains the leading authority on the duty to give reasons in administrative decision-making. Clarke CJ emphasised:

the core purpose of reasons is to ensure fairness, so that affected persons can understand why a decision was taken and assess whether it is lawful;
there is a “middle ground” between a fully discursive judicial judgment and a perfunctory conclusion:

“There is at least an obligation on the part of decision-makers to move into that middle ground, although precisely how far will depend on the nature of the questions which the decision-maker had to answer…”

where an individual has actively participated in the process, reasons may be gleaned from the decision read together with the file and underlying material, provided those reasons are readily ascertainable by the person affected.

Bradley J. invokes these principles both to frame the applicant’s “reasons challenge” and to justify finding that the Minister’s report in S.M. discharged the statutory duty.

5. The Court’s Legal Reasoning in S.M.

5.1 The Nature of the Applicant’s Submissions

The applicant’s s.49(7) review submissions were detailed. They included:

a completed s.49 Review Form;
representations by solicitors emphasising that the applicant had acquired “private life rights” through his residence, employment and community involvement;
numerous character and reference letters (from an accommodation centre duty manager, an evangelical church elder, an employer, a volunteer centre, etc.);
evidence of employment (payslips and employer letters);
a certificate of completion of a mindfulness and meditation course;
proof of volunteering activities; and
medical evidence, most notably:
- the SPIRASI medico-legal report; and
- the FCE scan and related documentation.

The case thus presented a fairly typical – albeit well-documented – s.49 scenario: short-to-medium residence, some integration and contribution, and evidence of health and psychological issues.

5.2 The SPIRASI Report and IPAT’s Credibility Findings

The SPIRASI report concluded that the applicant’s physical and psychological findings were “highly consistent” with his account of torture. Yet the report also acknowledged:

many scars were non-specific and located on body areas prone to accidental injury;
alternative causes (e.g. workplace accidents) could not be excluded; and
back pain was a common complaint in the general population and might be somatic.

The IPAT, having considered the SPIRASI report and heard oral evidence, held that:

the applicant had sustained injuries and psychological impacts; but
the report could not say who inflicted the injuries or in what circumstances; and
in light of serious credibility issues, it could not rule out alternative explanations.

On this basis, IPAT concluded that the applicant’s claim to a well-founded fear of persecution was not credible. That negative credibility finding was not judicially challenged.

Bradley J. accepts the Minister’s position that:

to revisit the question of whether the applicant was tortured as claimed would be inconsistent with the unchallenged IPAT findings; and
accordingly, the SPIRASI report could only be considered as evidence of medical and psychological conditions relevant to humanitarian and ECHR analysis, not as proof of persecution.

This is an important structural point: s.49 is not an appeal or re-hearing of the asylum claim. Once IPAT’s credibility conclusions stand, the Minister must proceed on that basis.

5.3 Analysis of the Statutory Factors in s.49(3)

(a) Nature of Connection with the State – s.49(3)(a)

The decision-maker noted that:

the applicant had been in the State for approximately 2 years and 4 months when applying for review;
he had engaged in lawful employment and volunteering and attended church; and
these activities demonstrated some level of connection with the State.

However, the report concluded that:

“these were formed during a time when the applicant's status was precarious and their length of residency cannot be considered lengthy or exceptional.”

Citing MK (Albania), the decision reiterated that:

migrants are not entitled to choose their country of residence; and
duration of residence only becomes a decisive factor in exceptional cases of very lengthy residence.

The High Court endorsed this reasoning as a proper application of the “something more” principle: in the absence of extraordinary circumstances, private life developed during precarious residence does not automatically entitle a person to permission to remain.

(b) Humanitarian Considerations – s.49(3)(b)

This was the core battleground of the case. The report divided humanitarian considerations into:

General humanitarian considerations, including integration, employment, church and volunteering; and
Medical issues, focusing on the SPIRASI and FCE evidence and any associated mental health issues.

On general humanitarian considerations, the decision:

acknowledged the applicant’s participation in work, religious and community life;
recalled that his international protection claim had been refused on credibility grounds; and
considered these factors in the light of his overall circumstances and precarious status.

On medical issues, the report:

referred to the prior s.49(3) review, which had found no breach of Articles 3 or 8 ECHR;
summarised the SPIRASI report’s findings (including PTSD features and consistency with alleged torture);
noted IPAT’s view that the SPIRASI findings did not overcome credibility concerns;
cited DE and Paposhvili regarding the Article 3 threshold for medical removal cases; and
relied on country information (a UK Home Office note on Zimbabwean medical treatment) indicating that physiotherapy and related treatment for low back pain were available in Zimbabwe.

Crucially, the decision concluded:

“the medical evidence available does not support the contention that there are substantial grounds for believing that there is a real risk that, if returned, the applicant would be exposed to a serious, rapid and irreversible decline in their state of health resulting in intense suffering or a significant reduction in life expectancy… the applicant's medical condition does not reach the threshold of a violation of Article 3 ECHR…”

Importantly, the decision then went further:

“Although the applicant's medical history does not reach the level of a breach of his rights under Article 3 of the ECHR, it is nonetheless a humanitarian consideration and has been considered in light of this… Notwithstanding the above conclusions in respect of Article 3 and/or Article 8 ECHR, it is acknowledged that humanitarian considerations may arise that do not meet the threshold of breaches under Articles 3 and/or 8 ECHR. Against this background, general humanitarian considerations have been taken into account for this decision. These are separate from Articles 3 and 8 ECHR on whether the Applicant should be given a permission to remain on the basis of humanitarian considerations…”

This language was decisive for Bradley J. It demonstrated:

a conscious separation of humanitarian analysis from strict ECHR rights analysis; and
active consideration of medical issues as potentially justifying permission to remain even in the absence of an ECHR breach.

The review then weighed these humanitarian factors against the State’s interest, concluding that:

“I have analysed the humanitarian considerations of this application and based upon this analysis I have found that the common good in maintaining the integrity of the international protection and immigration system outweigh the features of this case.”

Bradley J. considered this a paradigmatic application of the broad but structured humanitarian discretion recognised in DE and MK (Albania).

(c) Character and Conduct – s.49(3)(c)

The decision briefly assessed the applicant’s character and conduct (including the absence of criminal convictions). This factor was not central to the challenge, and nothing in the judgment suggests any concern about adverse findings here. It formed part of the overall statutory checklist but did not drive the outcome.

(d) National Security and Public Order – s.49(3)(d)

The report also confirmed that there were no issues of national security or public order weighing against the applicant. Again, this factor was neutral rather than determinative.

(e) Common Good – s.49(3)(e)

The “common good” was articulated primarily as the integrity and effectiveness of the immigration and protection system: the State’s interest in being able to enforce final decisions, remove those with no right to remain, and maintain controlled and predictable migration flows.

Throughout the analysis – particularly in the humanitarian and proportionality sections – the decision uses language drawn from MK (Albania), emphasising that:

the weight of this interest is “pre-loaded” in the balancing exercise; and
in the absence of “something more”, the common good will ordinarily outweigh individual private life factors developed during precarious residence.

5.4 Article 8 ECHR: Private and Family Life and Proportionality

The report contains dedicated sections on:

Article 8 – Private Life; and
Article 8 – Family Life,

with a separate “Proportionality Assessment” in between.

On private life, the decision:

accepted that refusal of permission to remain would interfere with the applicant’s Article 8(1) private life; but
found that the interference was justified under Article 8(2), being:
- “in accordance with the law” (i.e. under ss.49 and 51 of the 2015 Act);
- in pursuit of a legitimate aim (immigration control); and
- necessary and proportionate in a democratic society.

The proportionality assessment drew on the factual “matrix” of the applicant’s life in Ireland – duration of residence, work, volunteering, religious practice, self-development courses – and concluded that:

“Having examined the facts and circumstances, it is not considered that there are exceptional circumstances arising.”

Bradley J. viewed this as a faithful application of MK (Albania): in the absence of “exceptional circumstances” or “something more”, the Article 8 balance must generally favour the State.

On family life, the report found that the applicant had not demonstrated a relevant family life in Ireland such that refusal of permission to remain would interfere with Article 8(1) family life. Thus:

no separate Article 8(2) proportionality assessment was required in respect of family life; and
family life considerations re-emerged instead within the broader s.49(3)(b) humanitarian analysis.

5.5 Adequacy of Reasons

The applicant’s “reasons challenge” was that:

the Minister had merely summarised his submissions; and
had failed to genuinely engage with them or explain why they were rejected, especially regarding humanitarian considerations.

Bradley J. rejected this contention, holding that:

the report clearly set out the factual basis (residence duration, employment, volunteering, health status, SPIRASI findings, etc.);
it linked those facts to each statutory factor and to ECHR rights analysis; and
it expressly articulated why the State’s interest in immigration control outweighed the humanitarian factors in this particular case.

Crucially, unlike in A (Albania), the report did not merely list submissions and end with an unexplained conclusion. The High Court considered that the report comfortably occupied the “middle ground” required by Connelly:

it was not a fully discursive judicial judgment, but;
it was far from perfunctory – it provided sufficient detail for the applicant and his lawyers to understand how the decision was reached and to mount a meaningful judicial review.

5.6 Distinguishing A (Albania) and HK (Western Sahara)

The High Court systematically distinguished S.M. from the earlier authorities:

In HK, the Minister’s review treated humanitarian considerations as synonymous with ECHR thresholds and failed to treat, for example, sub-threshold mental health issues as independent humanitarian factors. In S.M., by contrast, the review:
- explicitly acknowledged that humanitarian considerations may arise even where Articles 3 and 8 ECHR are not breached; and
- went on to consider those factors separately.
In A (Albania), there was “almost nothing” by way of engagement with the submissions: they were recited and then ignored; and the language used mirrored that condemned in HK. In S.M.:
- the applicant’s integration, volunteering, employment and health were summarised and evaluated;
- a structured balancing exercise against the common good was conducted; and
- there was explicit textual recognition of the distinct role of humanitarian considerations.

For Bradley J., these differences were not semantic but substantive: they demonstrated that the decision-maker had internalised and applied the guidance from HK and A (Albania), rather than merely copying formulaic wording.

5.7 Application of the “Something More” Principle

The judgment’s concluding analysis draws heavily on MK (Albania):

The applicant’s residence was “precarious” throughout: he was present as an international protection applicant.
His length of residence (approximately 2¼ years) was not “very lengthy” or exceptional.
While integration, employment and volunteering were commendable, they were typical of many protection applicants and did not, without more, tip the balance.
His health conditions, while relevant, did not reach Article 3 threshold, and there was no evidence that removal to Zimbabwe would precipitate a serious decline or that necessary treatment was unavailable.

In these circumstances, Bradley J. concluded (paraphrasing O’Donnell CJ in MK (Albania)) that:

there was nothing in the facts of the applicant’s case capable of amounting to the kind of exceptional “something more” that could outweigh the State’s interest; and
the Minister’s decision to refuse permission to remain was within the broad band of lawful, rational discretionary decisions.

6. Complex Concepts Simplified

6.1 Residual Humanitarian Discretion vs. Rights-Based Entitlements

A recurring theme is the distinction between:

Rights-based entitlements: where the law (e.g. the Refugee Convention, subsidiary protection regime or ECHR) requires the State to allow a person to remain because removing them would breach their legal rights; and
Residual humanitarian discretion: where the person has no legal right to remain but the Minister may, as a matter of compassion or broader policy, decide to allow them to stay.

Section 49 of the 2015 Act sits largely in the second category. It is designed for people who have already failed to obtain refugee or subsidiary protection status, and whose ECHR rights have either been respected or will be safeguarded through proportional removal decisions. The question is then:

“All things considered, should the Minister show mercy or flexibility and grant permission to remain anyway?”

That is a broad, “open-ended” question, but the court will still insist that:

all relevant factors (s.49(3)(a)–(e)) are actually considered;
irrelevant factors are not relied upon; and
the decision is rational and proportionate, with sufficient reasons explained.

6.2 Precarious Residence and “Something More”

“Precarious residence” refers to living in a country:

on a temporary basis (e.g. as an asylum seeker, short-term visa holder); and
knowing that permission to stay may end if your claim is unsuccessful.

In such cases, the law assumes that:

you build your private life (friends, work, community ties) knowing it might be temporary; and
the State’s interest in removing you if your claim fails normally carries greater weight.

“Something more” is shorthand for circumstances that go well beyond the ordinary consequences of removal for a person with precarious residence – for example:

a very long period of residence, especially from childhood;
serious health conditions that cannot be treated in the country of origin;
exceptional psychological vulnerability; or
deep, long-standing personal relationships and obligations that would be fractured.

Only where there is “something more” of this nature will private life rights, or indeed humanitarian considerations, usually override the State’s interest in enforcement.

6.3 The “Rolled-Up” Error (ECHR vs Humanitarian Analysis)

A “rolled-up” error occurs when a decision-maker:

asks only: “would removal breach Article 3 or Article 8 ECHR?”; and
treats a negative answer to that question as automatically fatal to any claim for permission to remain.

This is wrong because s.49(3)(b):

expressly requires consideration of humanitarian factors, which may be compelling even if not
legally mandated by ECHR; and
contemplates that the Minister may decide to allow someone to remain for humanitarian reasons even where there is no ECHR breach.

In other words:

ECHR analysis is necessary but not sufficient. It is one part of the picture, not the entire picture.

HK and A (Albania) quashed decisions because the Minister had effectively collapsed the two questions into one. S.M. confirms that this error can be avoided by:

explicitly stating that humanitarian considerations are “separate from Articles 3 and 8 ECHR”; and
showing, in substance, that those considerations were weighed on their own terms.

6.4 What Counts as Adequate Reasons?

Adequate reasons:

do not require detailed, judgment-length analysis of every submission; but
do require more than a bare assertion that the Minister has “considered everything” and made a decision.

From Connelly and S.M., a lawful decision will typically:

Identify the relevant facts and submissions (e.g. health, employment, family, volunteering);
Explain, at least succinctly, how those factors were weighed under the statutory headings; and
State why, in the end, the Minister’s discretion is exercised one way rather than another (e.g. because the common good outweighs the particular humanitarian circumstances).

In S.M., the structured layout – moving through s.49(3)(a) to (e), and then ECHR analysis and proportionality – helped ensure transparency and clarity.

7. Impact and Future Implications

7.1 For Applicants and Practitioners

S.M. sends several clear signals to practitioners representing individuals seeking permission to remain under s.49:

Evidence of integration alone is rarely enough.
Employment, volunteering, church attendance and self-development courses are relevant and should be documented, but they are, in the language of the Supreme Court, often part of the “ordinary” experience of precarious migrants. They will rarely, without more, constitute the “something more” needed to displace the State’s interest.
Medical evidence must focus on the impact of return.
It is not sufficient to show that a person has health issues while in Ireland. Following DE and Paposhvili, applicants need to produce evidence that:
- removal would probably cause a serious, rapid and irreversible decline, or significantly reduce life expectancy; and/or
- necessary treatment is not realistically available in the country of origin.
It is striking that in S.M. the court noted that the applicant had not submitted evidence about how return to Zimbabwe would affect his mental or physical health, nor about lack of access to relevant services there.
Where IPAT credibility findings stand, s.49 is not a second front on persecution facts.
If medical reports (e.g. SPIRASI) have already been considered by IPAT and credibility has been rejected, s.49 review will usually treat those reports as health evidence only. It will not reopen factual findings about whether alleged torture occurred or by whom.
Sub-threshold vulnerabilities can matter — but framing is crucial.
S.M. confirms humanitarian discretion extends beyond strict ECHR thresholds. Practitioners should therefore:
- expressly argue why particular vulnerabilities (e.g. PTSD, trauma, limited support networks) justify permission;
- link those vulnerabilities to concrete risks or hardships on return, not just discomfort or lower living standards;
- demonstrate why the case is distinguishable from the “ordinary” precarious migrant case described in MK (Albania).
Pathfinder effect.
As this case was designated a pathfinder, its reasoning will likely guide how numerous other pending s.49 challenges are resolved. It effectively sets a baseline for the level of reasoning that will be considered lawful and the type of humanitarian circumstances that may (or may not) succeed.

7.2 For the Minister and IPO Caseworkers

The judgment also provides something close to a template for lawful s.49 decisions:

Follow the structure of s.49(3) explicitly in the decision/report (connection to State, humanitarian factors, character and conduct, national security/public order, common good).
Ensure that:
- ECHR Articles 3 and 8 are considered separately from humanitarian factors; and
- the decision expressly recognises that humanitarian considerations may warrant permission to remain even where there is no ECHR breach.
Include a brief but case-specific proportionality assessment that refers to the particular evidence in the file (e.g. duration of residence, integration, health issues), rather than generic wording.
Where relying on country information (as here regarding medical treatment in Zimbabwe), identify the source clearly (title, date, author, key conclusion) so that applicants and courts can see what has been relied on.

If caseworkers adopt this model, it will be significantly more difficult for applicants to succeed in “reasons” or “rolled-up” humanitarian/ECHR challenges, unless the substance of the balancing exercise is plainly irrational or key factors are ignored.

7.3 For the Courts and the Development of s.49 Jurisprudence

Doctrinally, S.M.:

Confirms that the principles in HK and A (Albania) remain good law: humanitarian analysis must not be confined to ECHR thresholds and reasons must go beyond bare recitals of submissions.
Demonstrates that those earlier cases do not impose an onerous or quasi-appellate standard of reasoning: a structured, succinct analysis can suffice provided it:
- engages with the substance of the case; and
- makes clear the line of reasoning.
Integrates MK (Albania) firmly into the s.49 context, solidifying “precarious residence” and “something more” as key tools for analysing both humanitarian discretion and Article 8 proportionality in permission-to-remain decisions.

As a result, the law on s.49 is now relatively well-mapped:

HK and A (Albania) set out what not to do;
S.M. illustrates a legally sufficient way to structure and reason a refusal; and
DE and MK provide the overarching doctrinal framework for humanitarian discretion and the ECHR interface.

8. Conclusion

S.M. v Minister for Justice [2025] IEHC 629 represents an important consolidation of Irish law on permission to remain under s.49 of the International Protection Act 2015. In a carefully structured judgment, Bradley J. holds that:

the Minister’s residual humanitarian discretion under s.49(3)(b) is real and independent of ECHR analysis, but;
that discretion is exercised against a background where:
- residence is often precarious;
- the State’s interest in an effective immigration system is pre-loaded with significant weight; and
- permission to remain will typically require “something more” than normal integration and ordinary hardship on return.

The decision confirms that the Minister must:

expressly recognise and separately assess humanitarian considerations, including sub-threshold health and private life factors;
provide reasons that show how those factors were weighed; and
conduct a structured proportionality assessment under Article 8 ECHR.

At the same time, S.M. underscores the limited role of judicial review: the court does not ask whether it would have granted permission to remain, only whether the Minister’s decision was lawful, rational and properly reasoned. On the facts of this case – modest duration of residence, normal patterns of integration, and health issues that did not meet the Paposhvili/DE standard or demonstrate “something more” – the High Court was satisfied that the refusal of permission to remain was legally unimpeachable.

In practical terms, the judgment offers:

a guide for caseworkers on how to write defensible s.49 decisions; and
a reminder to applicants that persuasive s.49 representations must demonstrate vulnerabilities or circumstances well beyond the ordinary, and must be supported by evidence addressing the impact of return, not just life as lived in Ireland.

As a pathfinder case, S.M. will likely shape the handling of many similar applications and challenges. It confirms that, while humanitarian mercy remains possible within the statutory scheme, the baseline expectation is that those who have failed in their protection claims and whose residence has been precarious will normally be required to leave, absent compelling, well-evidenced reasons to the contrary.

Separate Humanitarian Assessment and the “Something More” Threshold in Section 49 Reviews: Commentary on S.M. v Minister for Justice [2025] IEHC 629