Summary of Ruling — Judge Phelan

Factual and Procedural Background

The Applicant and his wife fled The State and applied jointly for international protection on 24 June 2025. Both were interviewed under s.35 of the International Protection Act 2015 on the same day. The wife's claim received a positive recommendation from the International Protection Office (Company A) and a declaration under s.47(1) was given. The Applicant received a s.39 recommendation of refusal on 21 January 2026 together with a s.49 Examination of File and was informed of a right of appeal to the International Protection Appeals Tribunal (Company B).

By ex parte Order dated 23 February 2026 the Applicant was granted leave to seek judicial review of the IPO's s.39 decision (23 October 2025) and s.49 decision (21 January 2026) after meeting the substantial grounds threshold. The Applicant also lodged an appeal to Company B on a without-prejudice/precautionary basis. Company B then scheduled the appeal for an oral virtual hearing on 8 May 2026 despite requests to await the judicial review. The Applicant applied for an interlocutory order under Order 84 r.20(8)(b) RSC seeking a stay of the Company B appeal and/or an injunction restraining Company B from taking further steps pending final determination of the judicial review.

Legal Issues Presented

1. Whether an interlocutory stay or injunction should be granted under Order 84 r.20(8)(b) RSC to restrain Company B from proceeding with the Applicant's appeal pending judicial review.
2. Whether the Applicant meets the Okunade test (arguable case/substantial grounds and balance of justice) for relief having regard to recent Supreme Court decisions (notably AB and Amariei) and the factual development that the appeal will proceed by oral hearing.
3. Whether the statutory appeal to Company B constitutes an adequate alternative remedy such that judicial review is inappropriate at this interlocutory stage.

Arguments of the Parties

Applicant's Arguments

• The IPO acted irrationally and unreasonably by treating the Applicant and his wife differently despite joint, related applications and substantially similar evidence.
• The s.39 report failed to consider the wife's evidence or the joint nature of the application, breaching s.39(2)(a) and amounting to a fundamental denial of justice that justified judicial review despite the appeal remedy.
• A stay is necessary because a Company B decision could render the judicial review moot and would compel the Applicant to seek a review under s.49(7) despite ongoing challenge to the initial s.49 report.

Respondents' Arguments

• The applicable test for interlocutory relief derives from Okunade; the Applicant must show an arguable case/substantial grounds and that the balance of justice favours a stay.
• Recent Supreme Court decisions (AB and Amariei) reformulate and restrict the circumstances in which judicial review will be permitted where a statutory appeal is available; these decisions undermine the Applicant's case and may justify setting aside the leave order.
• The statutory appeal to Company B is an adequate and orderly remedy; proceeding with the appeal will either vindicate the Applicant or leave him able to seek judicial review afterwards, so no injustice arises from refusing a stay.
• Public interest and the orderly operation of the international protection scheme weigh against halting Company B proceedings.

Table of Precedents Cited

Court's Reasoning and Analysis

Judge Phelan first applied the Okunade framework: (1) whether the Applicant had an arguable case/substantial grounds; and (2) where the greater risk of injustice lay, giving weight to orderly implementation of prima facie valid statutory measures and public interest. The court then reassessed the strength of the Applicant's case in light of intervening Supreme Court decisions (AB and Amariei) which narrow the circumstances in which judicial review will displace an available statutory appeal, limiting exceptions to rare cases of fundamental denial of justice (e.g., total refusal to hear or consider the applicant).

The court found that the alleged error—failure by Company A to have regard to the wife's evidence—did not amount to the kind of systemic or absolute failure described in AB and Amariei. Further, a factual development since leave was granted (Company B scheduling an oral, remote hearing on 8 May 2026) meant the Applicant would likely have the opportunity to call his wife and to have corroborative evidence heard, curing the defect feared at leave stage when an appeal on the papers had been anticipated.

Accordingly, the court concluded the first limb (arguable case/substantial grounds) was not met when assessed through the prism of AB and Amariei and the changed factual context. In the alternative, on the balance of justice the court gave significant weight to the public interest in allowing the statutory appeal process to proceed and was satisfied the Applicant would retain an effective remedy by way of judicial review if Company B's decision failed to address the alleged unfairness.

Holding and Implications

INTERLOCUTORY APPLICATION REFUSED

Direct effect: the court refused to stay or enjoin Company B from proceeding with the Applicant's appeal scheduled for 8 May 2026. The appeal may proceed; the Applicant retains the right to seek judicial review at a later stage if the appeal outcome leaves unresolved a fundamental unfairness. The court treated the leave previously granted as not dispositive in light of the recent Supreme Court clarifications (AB and Amariei) and the changed factual circumstances. No new precedent was announced by this ruling; it applies recent appellate authority to the facts before the court.

The court will hear the parties on any consequential matters.