E v The International Protection Appeals Tribunal & ors; FOM v The Minister for Justice & Ors (Approved)

Factual and Procedural Background

This Supreme Court opinion (delivered by Judge Woulfe) concerns two appeals heard together, arising from judicial review proceedings challenging decisions treating international protection applications as inadmissible on the basis that the United Kingdom was designated a “safe third country” under Irish law.

Respondent 1 (a Nigerian national) applied for international protection in the State in May 2022. The International Protection Office recommended inadmissibility under the International Protection Act 2015 on the basis that the United Kingdom was a safe third country and that Respondent 1 had a sufficient connection to it. The International Protection Appeals Tribunal affirmed inadmissibility. The Minister issued an inadmissibility decision before any return order was made. Respondent 1 brought judicial review.

Respondent 2 (an Iraqi national) applied for international protection in May 2021, having previously been refused asylum in the United Kingdom. The International Protection Office recommended inadmissibility, and the International Protection Appeals Tribunal affirmed. The Minister issued a notice that a return order would be made subject to a non-refoulement assessment; submissions were made arguing, among other matters, that return to the United Kingdom exposed applicants to a risk of onward transfer to Rwanda. The Minister rejected the submissions, made a non-refoulement decision, and issued a return order requiring Respondent 2 to leave the State and return to the United Kingdom. Respondent 2 brought judicial review.

The High Court heard both judicial reviews jointly and, in a judgment delivered in March 2024, held (among other matters) that the designation of the United Kingdom as a safe third country was unlawful as a matter of EU law (as applied to Ireland via the Dublin III Regulation), and granted orders of certiorari quashing the relevant decisions.

The State Appellants appealed. While the appeal was pending, the statutory framework changed: the 2020 instrument designating the United Kingdom as a safe third country was revoked by the Civil Law, Criminal Law and Superannuation Act 2024, and statutory amendments were introduced to incorporate an additional “no risk of serious harm” principle. The Court of Appeal dismissed the appeals as moot. The Supreme Court granted leave to appeal on the parameters of mootness and when apparently moot appeals should be permitted.

Legal Issues Presented

1. Whether the Court of Appeal erred in determining that the State Appellants’ appeals had become moot due to legislative changes made by the Civil Law, Criminal Law and Superannuation Act 2024 (including revocation of the 2020 safe third country designation and amendments to the International Protection Act 2015).
2. Whether section 27 of the Interpretation Act 2005 preserved a live controversy by maintaining the legal effect of actions taken under the revoked 2020 designation instrument.
3. If the appeals were moot, whether the appellate court should nonetheless have exercised discretion to hear and determine them due to alleged wider constitutional and EU-law importance.
4. If the appeals were not moot, what was the appropriate forum to hear the substantive appeals (remittal to the Court of Appeal versus hearing in the Supreme Court).

Arguments of the Parties

State Appellants’ Arguments

• The Court of Appeal erred in finding mootness: on a correct interpretation of domestic and EU law, the State could rely on decisions lawfully made under the pre-amendment regime when taking subsequent steps under the amended regime.
• A successful appeal would “revalidate” earlier steps (inadmissibility decisions, non-refoulement decision, and return order), which would have practical consequences (e.g., proceeding to later stages without remittal).
• Revocation of the 2020 designation instrument did not extinguish the legal consequences of what was “duly done” under it; section 27 of the Interpretation Act 2005 preserved the previous operation of the instrument and liabilities/obligations incurred.
• Even if moot, the Court of Appeal should have exercised discretion to hear the appeals, given asserted constitutional and EU-law significance, including Ireland’s opt-in position under Protocol No. 21, and whether Ireland could be indirectly bound by measures it did not opt into.
• The Court of Appeal was said to be the appropriate forum if the substantive appeals were to proceed, given the complexity and the perceived “advantage of an intermediate appeal.”

Respondents’ Arguments

• The legislative amendments and revocation fundamentally altered the governing statutory regime, eliminating any live controversy; removal had not taken place, so future decisions must be taken under the amended safeguards.
• At the time of the Court of Appeal decision, the revoked 2020 designation meant there was no basis to treat claims as inadmissible on that ground; any future removal would require fresh decision-making and could be judicially reviewed.
• Section 27 of the Interpretation Act 2005 did not assist: the 2024 changes were not merely repeal/revocation effects but introduced new forward-looking obligations/safeguards that must apply at the point of removal; no preserved “right, privilege, obligation or liability” was identified as accrued to the State Appellants.
• The safe third country requirements were forward-looking (“will be treated”), requiring satisfaction up to the time of transfer.
• Discretion to hear a moot appeal should not be exercised: the respondents alleged prejudice due to delay, costs risk, reduced adversarial value if respondents had no interest, and duplication risk given potential future litigation (including challenges to a later 2025 designation instrument).
• If the appeals were to be heard, the Supreme Court (not remittal) was argued to be the appropriate venue.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
[2024] IEHC 183	High Court analysis of EU legislative framework for “safe third country” and whether Irish designation provisions omitted an additional “no risk of serious harm” principle.	Provided the underlying merits decision that was appealed; its approach prompted legislative amendments mirroring its outcome.
[2025] IECA 43	Court of Appeal decision dismissing the appeals as moot following legislative change, applying the mootness analysis from Lofinmakin.	The Supreme Court opinion (Judge Woulfe) agreed with the Court of Appeal’s conclusion on mootness and its treatment of section 27 of the Interpretation Act 2005.
Lofinmakin v. Minister for Justice & Ors. [2013] 4 I.R. 274	Two-step mootness analysis: (1) whether a live controversy exists; (2) discretionary power to hear even if moot; and factors guiding discretion.	Adopted as the governing framework; Judge Woulfe applied step one and concluded the appeals were moot due to legislative change.
Odum v Minister for Justice and Equality [2023] 2 ILRM 164	Elaboration on mootness: need for adversarial context, resource considerations, avoidance of advisory opinions; and the distinct implications of mootness at appellate stage.	Used to restate principles; referenced in party submissions; Judge Woulfe relied on it as part of the “recent decisions” setting out mootness doctrine.
Okunade v. Minister for Justice [2012] I.R. 152	Example where discretion was exercised to hear a moot appeal due to “wider considerations.”	Discussed in the Court of Appeal’s approach (as recounted), as a comparator rejected as inapplicable to the present appeals.
O'Brien v. Personal Injuries Assessment Board (No. 2) [2007] 1 I.R. 328	Discretion to hear moot matters where a party retains a real current interest, including public bodies seeking operational clarity.	Discussed (as recounted) by the Court of Appeal in declining to exercise discretion; also relied on by the State Appellants in arguing discretion should have been exercised.
Irwin v Deasy [2010] IESC 35	Discretion to hear a moot appeal; public body interest in clarity noted as significant.	Relied on by the State Appellants to analogise the State’s desire for clarity; referenced as part of the discretion-to-hear-moot jurisprudence.
Borowski ([1989] 1 SCR 342)	Identified (via Odum) as articulating core factors underlying mootness in common law jurisdictions.	Referenced through the quoted Odum principles to explain the rationale for mootness.
CA v Minister for Justice and Equality [2014] IEHC 532	Relied on by the State Appellants for the proposition that domestic mirroring of non-binding EU provisions does not render them binding EU obligations on Ireland.	Used in the State Appellants’ argument that the legality of the revoked designation instrument remained a live issue; no further application by Judge Woulfe was set out in this excerpt.
Sibanda v Minister for Justice and Equality [2024] IECA 206	Also cited by the State Appellants in support of the same proposition concerning mirroring of EU law not binding on Ireland.	Referenced as part of the State Appellants’ mootness submissions; no further application by Judge Woulfe was set out in this excerpt.
Case C-349/20 NB, AB v Home Secretary EU:C:2022:151	Cited by the State Appellants as part of EU-law authorities relevant to Ireland’s obligations and opt-in position.	Referenced in submissions to argue the High Court’s approach to indirect binding effect was incorrect; Judge Woulfe’s mootness conclusion meant the substantive EU-law merits were not determined in this excerpt.
Case C-616/19 MS v Minister for Justice and Equality EU:C:2020:1010	Relied on by the State Appellants to argue that Ireland’s obligations should be interpreted consistently with binding measures, without importing non-opted-in measures.	Referenced in submissions; the excerpt records that the State Appellants argued it did not support importing the Recast Procedures Directive via Dublin III.
Wansboro v Director of Public Prosecutions [2017] IESCDET 115	“Advantage of an intermediate appeal” (used to support remittal to the Court of Appeal).	Relied on by the State Appellants on the forum question if the appeal were found not moot.
[2025] IESCDET 76 and 77	Supreme Court leave decisions identifying general public importance in the mootness parameters and the circumstances in which apparently moot appeals should be permitted.	Explained the basis on which leave was granted for the further appeal, including that forum would need to be addressed if not moot.

Court's Reasoning and Analysis

Judge Woulfe treated mootness as requiring a two-step approach drawn from Lofinmakin: first, whether the appeals were moot because no decision could have practical impact on a live controversy; second (only if moot), whether the court should nonetheless exercise discretion to hear them.

On step one, Judge Woulfe concluded the Court of Appeal was correct that both appeals were moot due to legislative amendments made by the Civil Law, Criminal Law and Superannuation Act 2024.

Respondent 1: The inadmissibility decisions were founded on the 2020 instrument designating the United Kingdom as a safe third country. That instrument was revoked in 2024 before any return order was made. Judge Woulfe considered that the Minister’s inadmissibility decision “did not continue, and could not have continued, to have any legal force” after the revocation, and it was not revived by the later 2025 designation instrument (made under an amended statutory power). He reasoned that any further progress would require new admissibility decisions under the new statutory provisions. Because a decision for the Minister on the appeal would have no practical effect, there was no longer a live controversy.

Respondent 2: Although a return order had issued under the prior regime, removal had not occurred. Judge Woulfe reasoned that, before removal, the Minister would be obliged to conduct a new non-refoulement assessment under the amended section 50A with enhanced safeguards. He also noted counsel accepted Respondent 2 could make new “change of circumstances” submissions under section 50A(3) based on the additional protections, which the Minister would have to consider. In substance, the matter would therefore be governed by the new regime, requiring new decisions on non-refoulement and/or return. Again, the appeal would have no practical impact and thus was moot.

Judge Woulfe rejected the State Appellants’ reliance on section 27 of the Interpretation Act 2005, agreeing with the Court of Appeal that it did not assist because the 2024 Act went “considerably further” than revocation/repeal by introducing new and additional safeguards which the respondents were entitled to rely upon.

Judge Woulfe also addressed a disagreement with the reasoning of Judge Donnelly (referred to as representing the majority view) about whether an EU-law controversy remained “live.” Judge Woulfe’s view was that, regardless of whether the additional “serious harm” principle was mandated by EU law, it was now part of national law, and therefore did not sustain a live controversy between these parties in these appeals.

Because Judge Woulfe considered the appeals moot, he did not reach the discretionary second step (whether to hear the appeal despite mootness), noting that the majority of the Court were said (in this excerpt) to have found the appeals not moot.

Holding and Implications

Holding: This excerpt does not state the Supreme Court’s final order or ultimate disposition. In the judgment delivered by Judge Woulfe, he concluded that both appeals were moot due to the 2024 legislative amendments (and that section 27 of the Interpretation Act 2005 did not preserve a live controversy), and he would therefore have upheld the Court of Appeal’s mootness determination.

Implications: On Judge Woulfe’s analysis, the challenged pre-amendment decisions could not produce practical effects after the revocation/amendment of the safe third country regime; any future steps concerning admissibility, non-refoulement, and/or removal would require new decision-making under the amended statutory framework (and could be the subject of fresh judicial review if taken). The excerpt also records that a majority of the Court took a different view on mootness, but the consequences of that majority view are not set out in the provided text.