S.M. v The Minister For Justice [No. 2] (Approved)

Factual and Procedural Background

The Applicant sought leave to appeal from a prior High Court judgment ("the principal judgment") which upheld a ministerial decision under s.49 of the International Protection Act 2015 refusing permission to remain. The principal judgment concluded that the Minister's decision (9 October 2024) and the accompanying s.49(7) review report (dated 8 October 2024) complied with statutory requirements, including the obligation to give reasons. The present application requested certification under s.5(6) of the Illegal Immigrants (Trafficking) Act 2000 to permit an appeal to the Court of Appeal. The Applicant relied principally on similarity to the High Court decision in A (Albania) where a s.49 decision was quashed for lack of engagement. The High Court (Judge Bradley) treated the Applicant's case as a pathfinder/test case; the State indicated many (circa 126) cases were in a holding list and that 90–95 might share a similar factual matrix. The Court distinguished the principal judgment's facts from those in A (Albania) and HK (Western Sahara) and ultimately certified a point of law for appeal.

Legal Issues Presented

1. Whether the High Court should certify, under s.5(6)(a) of the 2000 Act, that a point of law arising from the principal judgment is of exceptional public importance and that it is desirable in the public interest that an appeal be taken.
2. The certified substantive question: in exercising ministerial discretion under s.49(7) of the 2015 Act (including s.49(3)(b) on humanitarian considerations), may the Minister weigh the State's interest in maintaining the integrity of the international protection, asylum and immigration system against the individual facts and circumstances of an applicant in assessing whether those circumstances amount to "something more" than private rights (such that leave to remain should be granted)?

Arguments of the Parties

Applicant's Arguments

• The Applicant submitted that his case was "on all fours" with the decision in A (Albania) and that the s.49(7) review suffered the same defects of non-engagement and mere summary of submissions.
• The Applicant proposed certification of a question concerning the role of "exceptional circumstances" when granting permission to remain under s.49.

Respondent's Arguments

• The State contended there was no inconsistency between the principal judgment and other High Court decisions; the facts in the Applicant's case materially differed from A (Albania) and HK (Western Sahara).
• The State noted the practical consequences of certification given the number of related cases on hold.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court first applied the settled statutory test for certification under s.5(6) of the 2000 Act as articulated in MAU and Glancré Teo: the point must arise from the judgment, be of exceptional public importance, and it must be desirable in the public interest that an appeal be taken. The Court examined the principal judgment's findings that the s.49(7) review report (8 October 2024) evidenced active engagement by Case Workers with the Applicant's material, addressed humanitarian considerations separately from ECHR/private‑rights analysis, and reached a reasoned judgment that the Applicant had not shown the requisite "something more." The Court distinguished in detail the facts of the Applicant's case from those in A (Albania) (no engagement) and HK (Western Sahara) (ECHR‑centred assessment). The Court noted the residual, broad and discretionary nature of s.49 humanitarian assessments (as explained in DE and related authorities) and reiterated MK (Albania)'s framing of "exceptionality" and "something more." Having regard to the legal principles, the distinct factual matrix of this case, and the public interest in resolving a point that affects many pending cases, the Court concluded that a point of law of exceptional public importance was presented and that it was desirable in the public interest that an appeal be taken.

Holding and Implications

CERTIFIED: The Court certified the following point of law for appeal to the Court of Appeal:

Whether, in exercising ministerial discretion under s.49(7) of the 2015 Act (including s.49(3)(b) on humanitarian considerations), the Minister is entitled to weigh the State's interest in maintaining the integrity of an orderly international protection/asylum/immigration system against the individual facts and circumstances of an applicant when assessing whether those factors amount to "something more" than private rights such that leave to remain should be granted.

Implications: The certification permits an appeal to the Court of Appeal on the certified question and may affect numerous pending cases (the Court was informed of approximately 126 cases on a holding list, with some 90–95 potentially awaiting final determination). The decision itself does not purport to create new substantive precedent beyond certifying the question for appellate determination; its immediate effect is to enable appellate resolution of the framed legal issue.

Judge Bradley

6 March 2026