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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
- 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.
- 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
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Appellant (A) (Albania) v Respondent [2023] IEHC 692 | Quashing of a s.49 decision where there was no engagement by the decision‑maker and the report merely summarised submissions. | The Court distinguished the Applicant's case from A (Albania), finding that the review in the present case involved active engagement and reasoned assessment rather than mere summary. |
| HK (Western Sahara) v Respondent [2022] IECA 141 | Critique where assessment was conducted solely through the prism of the ECHR. | The Court found the present review was not ECHR‑centric to the exclusion of humanitarian considerations and distinguished HK (Western Sahara) on that basis. |
| MAU v Respondent (No.3) [2011] IEHC 59 | Principles for certifying a point of law of exceptional public importance (point must arise from judgment; exceptional importance; desirability in public interest). | The Court applied these established certification principles in assessing the s.5(6) application. |
| Glancré Teo v An Bord Pleanála [2006] IEHC 250 | Seminal exposition of the "exceptional importance" requirement and that certification should be exercised sparingly. | The Court applied the Glancré Teo principles mutatis mutandis to s.5(6) of the 2000 Act. |
| S.T.E. & Ors v Respondent & Ors [2019] IECA 332 | Authority on the scope of appeals once certification is granted (raising additional points on appeal). | Cited to show that once certified, appellants may raise additional points arising on the appeal. |
| MAK v Respondent [2018] IESC 18 | Support for appellate practice where certified points may be the focus of higher‑court consideration. | Referenced in the context of what issues may be considered on appeal after certification. |
| Clinton v An Bord Pleanála [2007] 1 I.R. 272 | Appellate procedural principles regarding certification and scope of appeal. | Relied on for the proposition that additional points may be raised on appeal. |
| L. O'S v The Minister for Health and Children [2015] IESC 61 | Appellate procedure and related jurisprudence. | Cited as part of authorities on certification and appellate scope. |
| People (Attorney General) v Giles [1974] I.R. 422 | Authoritative procedural authorities on certification and appeals. | Listed among authorities establishing the appellate framework applicable by analogy. |
| People (DPP) v Shaw [1982] I.R. 1 | Procedural authority referenced in the statutory appeal context. | Cited as part of the body of procedural authorities. |
| People (DPP) v Lynch [1982] I.R. 64 | Procedural authority referenced in relation to appellate limits. | Included among precedents relevant to certification procedure. |
| People (DPP) v Kelly (No. 2) [1983] I.R. 1 | Procedural authority on appeals and certification. | Cited within the survey of appellate authorities. |
| DE (an infant) v Respondent [2018] 3 I.R. 326 | Discussion of residual ministerial discretion and humanitarian considerations in revocation of deportation orders. | The Court relied on DE to explain the breadth of humanitarian discretion and that ministers may grant leave even where no legal entitlement exists. |
| MK (Albania) v Respondent [2022] IESC 48; [2024] 2 I.R. 113 | Clarification of "exceptionality" and the requirement of "something more" to tip the balance against the State's interest. | The Court used MK to frame the pre‑designated weighting exercise and to confirm that exceptional circumstances require "something more" than precarious residence. |
| CI v Respondent [2014] IEHC 447 | Examples of circumstances that may amount to "something more". | Cited (via MK) as part of illustrative authorities on "something more". |
| Jeunesse v Netherlands (2015) 60 EHRR 17 | ECtHR authority referenced on weighing private life against State interest. | Referenced as part of the international jurisprudence informing "something more". |
| Pormes v The Netherlands CE:ECHR:2020:0728JUD002540214 | ECtHR decision relevant to the balancing exercise under Article 8. | Cited alongside Jeunesse as illustrative Strasbourg jurisprudence. |
| Paposhvili v Belgium (App. No. 41738/10) [2017] Imm AR 867 | Strasbourg authority discussed in relation to humanitarian assessment and deportation law. | Referred to in the discussion of international authorities related to humanitarian considerations. |
| AM (Zimbabwe) v Secretary of State for the Home Department [2020] UKSC 17 | UK Supreme Court consideration of related Strasbourg jurisprudence. | Cited in connection with the discussion of Paposhvili and humanitarian assessment. |
| Connelly v An Bord Pleanála [2018] IESC 31; [2021] 2 I.R. 752 | Jurisprudence on the adequacy of reasons. | Used in the principal judgment's assessment of whether the review contained sufficient engagement and reasoned judgment. |
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
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