Supreme Court of Ireland: E v International Protection Appeals Tribunal

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  E v The International Protection Appeals Tribunal & ors; FOM v The Minister for Justice & Ors (Approved) [2026] IESC 8 (18 February 2026)

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AN CH?IRT UACHTARACH

THE SUPREME COURT

[2026] IESC 8

Record No. 2025/51

Dunne J.

O'Malley J.

Woulfe J.

Collins J.

DonnellyJ.

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BETWEEN/

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KE

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Applicant/Respondent

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-and-

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THE INTERNATIONAL PROTECTION APPEALS TRIBUNAL, THE MINISTER FOR JUSTICE, IRELAND AND THE ATTORNEY GENERAL

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Respondents/Appellants

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Record No: 2025/52

BETWEEN/

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FOM

??????????????????????????????????????????????????????????????????????????????????????????????????????????? ?? Applicant/Respondent

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-and-

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THE MINISTER FOR JUSTICE, IRELAND AND THE ATTORNEY GENERAL.

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????????????????????????????????????????????????????????????????????????????????????????????????????????????? Respondents/Appellants?

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JUDGMENT of Mr. Justice Woulfe delivered on the 18 th February, 2026

Introduction

1. The appellants in both of these appeals, which were heard together, appealed the decision of the Court of Appeal (Meenan J.; Whelan J. and O'Moore J. concurring) which determined that their appeals were moot and dismissed their appeals from the orders of the High Court made on the 14 th May, 2024.?

2. As regards the first respondent, K.E., the High Court granted an order of certiorari quashing the decision of the International Protection Appeals Tribunal ("IPAT") dated the 27 th April, 2023, made under s. 21(6) of the International Protection Act, 2015 (the "2015 Act"), affirming the recommendation of the International Protection Office ("IPO") that the first respondent's application for international protection be deemed inadmissible.? The Court also granted an order of certiorari quashing the decision of the Minister for Justice (the "Minister") dated the 10 th May, 2023, made under s. 21(11)(b) of the 2015 Act, determining that the first respondent's application for international protection be deemed inadmissible.?

3. As regards the second respondent, F.O.M., the High Court granted an order of certiorari quashing the decision of the Minister dated the 25 th January, 2023, made under s. 50A of the 2015 Act, finding that there would be no violation of the prohibition on refoulement were the second respondent to be returned to the United Kingdom.? The High Court also granted an order of certiorari quashing the return order made by the Minister dated the 26 th January, 2023, made under s. 51A of the 2015 Act, requiring the second respondent to leave the State and to return to the United Kingdom.?

4. The appellants seek an order from this Court remitting these proceedings to the Court of Appeal for a full determination of the substantive appeals brought by them at first instance. In the alternative, the appellants request the Court to set down their grounds of appeal for hearing by this Court.?

Background

5. The first respondent, K.E, is a Nigerian national who applied for international protection in the State on the 24 th May, 2022. Information from the UK revealed that he was refused asylum in that jurisdiction in November 2019, and had been granted a student visa from the 26 th December, 2020 to the 31 st May, 2022. In February 2023, the IPO conducted an inadmissibility consideration interview, during which the first respondent reported that he had lived in the UK for a year and five months on a student visa but claimed his life was in danger there. In its report issued pursuant to s. 21(4) of the 2015 Act, the IPO ultimately recommended that the application be deemed inadmissible because the UK was "a safe third country", and the first respondent had "a connection with the UK on the basis of which it is reasonable to return him there". In December 2020, the Minister had designated the UK as a safe third country for the purposes of the 2015 Act by signing the International Protection (Safe Third Country) Order 2020 (S.I. No. 725 of 2020) (the "2020 Order") pursuant to s. 72A of the 2015 Act.

6. The first respondent unsuccessfully appealed the decision of the IPO to IPAT, on the grounds, inter alia, that the safe third country system did not comply with Article 27(1) of Council Directive 2005/85/EC (the "Procedures Directive") and the potential for relocation to Rwanda under the British Government's "Rwanda policy", which was operative at that time. ?IPAT determined the first respondent's international protection application to be inadmissible under s. 21(7)(a) of the 2015 Act, finding that it had no role in determining the validity of legislative provisions and that the first respondent's concerns regarding transfer under the Rwanda policy were "speculative". On the 10 th?May, 2023, the Minister issued an inadmissibility decision under s.21 (11) of the 2015 Act. ?Before the Minister could proceed to make a return order under s. 51A of the 2015 Act, the first respondent commenced proceedings before the High Court by way of judicial review.?

7. The second respondent, F.O.M., is an Iraqi national who applied for international protection in the State on the 18 th May, 2021. He had previously made an asylum application in the UK in 2018, which had been refused. On the 4 th October, 2021, the UK informed the IPO that he had been accepted to be readmitted to their immigration procedures. On the 3 rd March, 2022, the IPO issued a recommendation confirming that his application had been determined to be inadmissible under s. 21(2)(c) and s. 21(17) of the 2015 Act as the UK was considered to be a 'safe third country' (under the 2020 Order).

8. The second respondent unsuccessfully appealed the decision of the IPO to IPAT, which affirmed the IPO's inadmissibility decision under s. 21(7)(a) of the 2015 Act, as it was satisfied that F.O.M. had a "sufficient connection" to the UK and it would be reasonable to return him there. On the 5th August, 2022, the Minister issued a s. 21(11) notice confirming the inadmissibility decision and stating that a return order would be made under s. 51A of the 2015 Act, subject to the prohibition of refoulement provided for in s. 50A of that Act. In their "change of circumstances" submissions to the Minister made under s. 50A(3) of the 2015 Act, solicitors for the second respondent submitted that the safe third country system did not comply with Article 27(1) of the Procedures Directive and that there should be no return of international protection applicants to the UK, where they faced a strong likelihood of being removed to Rwanda, which had not been designated as a "safe third country".?? These submissions were rejected and on the 26 th January, 2023, the Minister issued a return order under s. 51A of the 2015 Act, directing the second respondent to return to the UK.

The High Court

9. Both respondents commenced High Court proceedings by way of judicial review. K.E. sought orders of certiorari quashing the inadmissibility decisions of both IPAT and the Minister.? F.O.M. sought orders of certiorari quashing the decision of the Minister made under s. 50A of the 2015 Act, that his return to the UK would not be in breach of the prohibition against non- refoulement, and quashing the order made under s. 51A of the Act requiring him to leave the State. In addition, both parties sought declaratory relief to the effect that the designation of the UK as a "safe third country" was ultra vires the Procedures Directive and/or contrary to Ireland's obligations under the Common European Asylum System. The High Court heard these two cases jointly in a telescoped hearing.

10. In the judgment of the High Court dated the 22 nd March, 2024 ([2024] IEHC 183), Ms. Justice Siobh?n Phelan identified nine substantive issues to be addressed. For the purposes of the present appeal, the trial judge's analysis of the first issue, namely, whether the designation of the UK as a safe third country under s. 72A of the 2015 Act is ultra vires the Procedures Directive and/or Council Directive 2013/32/EU (the "Recast Procedures Directive"), is pertinent. Examining the EU legislative framework governing the "safe third country" concept, Phelan J. observed that, while expressed in almost identical terms, Article 38(1)(b) of the Recast Procedures Directive adds an additional principle to Article 27 of the original Procedures Directive, requiring Member States to operate the safe third country concept only where there is "no risk of serious harm" as defined in Article 15 of Council Directive 2011/95/EU (the "Recast Qualification Directive").

11. While the State is not bound by the Recast Procedures Directive (see Recital 50 thereof), the trial judge considered that Article 3(3) of Regulation (EU) No. 604/2013 (the "Dublin III Regulation") nonetheless provides that the retention of the safe third country concept is "subject to the rules and safeguards laid down" in that Directive. Crucially, as s. 72A was drafted in terms which mirrored the requirements of Article 27 of the Procedures Directive, but not the Recast Procedures Directive at Article 38, the trial judge found that the additional principle that the Minister only operate a safe third country designation when satisfied that there is no risk of serious harm was omitted therefrom.

12. Examining the operation of ss. 21(2), 21(17) and 50A of the 2015 Act, the trial judge concluded that the protections provided under the domestic statutory scheme were not so broadly drawn as to capture all incidents of serious harm within the meaning of Article 15 of the Recast Qualification Directive, i.e. so as to include (c) "a serious and individual threat to a civilian's life or person by reason of indiscriminate violence in situations of international or internal armed conflict". As the trial judge considered these protections to be binding on the State by reason of the Dublin III Regulation, the High Court determined that the designation of the UK as a safe third country was unlawful as a matter of EU law, and quashed the inadmissibility decisions made in reliance on this designation.

The Court of Appeal

13. The appellants appealed against the order of the High Court on the grounds, inter alia that the trial judge had erred in her interpretation of the Dublin III Regulation. Following the High Court judgment, a number of legislative changes altered the statutory framework governing the safe third country concept. Most notably, s. 6 of the Civil Law, Criminal Law and Superannuation Act, 2024 (the "2024 Act") revoked the 2020 Order designating the UK as a safe third country, while ss. 9 and 13 of the 2024 Act amended ss. 50A and 72A of the 2015 Act respectively to include the additional principle set out in Article 38(1)(b) of the Recast Procedures Directive, thereby reflecting the terms of the High Court judgment. ?The appellants do not concede that these amendments were mandated by EU law or that the High Court judgment was correct in its approach.?

14. For the reasons stated in the judgment of Meenan J. ([2025] IECA 43; Whelan and O'Moore JJ. concurring), the Court of Appeal determined the appeals to be moot. Applying the analysis set out by McKechnie J. in Lofinmakin v. Minister for Justice & Ors. [2013] 4 IR 274 (" Lofinmakin"), Meenan J. first considered (at paras. 54 - 56) whether there was any longer a "live controversy" between the parties after the enactment of the 2024 Act. With the revocation of the 2020 Order, the Court considered that any further designating order would be subject to the new principle set out in s. 72A of the 2015 Act. Further, the respondents were entitled to additional protections inserted by the 2024 Act if subject to any future inadmissibility decision. As no further decisions had been taken by the IPO, IPAT, or the Minister concerning the respondents under the new statutory provisions, it followed that there was no longer a live controversy between the parties.? Thus, even a decision in favour of the Minister on these appeals would have no practical impact or effect.

15. Meenan J. went on (at paras. 57 - 60) to consider whether, even though these was no longer a live controversy between the parties, the Court should nonetheless exercise its discretion and proceed to hear the appeal. Having regard to the decisions in Okunade v. Minister for Justice [2012] I.R. 152 and O'Brien v. Personal Injuries Assessment Board (No. 2) [2007] 1 IR 328 (" O' Brien") in which such discretion was exercised, Meenan J. considered that those cases concerned "wider considerations" which did not arise in the present appeals. Were these appeals to proceed, the Court would be asked to give an opinion or advice on legislation which had been repealed or amended.

16. Further, the Court determined (at para. 62) that s. 27 of the Interpretation Act, 2005 (the "2005 Act"), which provides for the continuation of legal proceedings in respect of any "right, privilege, obligation, or liability acquired, accrued or incurred" under a repealed enactment, did not avail the appellants.? It was clear to Meenan J. that the provisions of the 2024 Act went considerably further than repealing the relevant statutory instrument, by providing for new and additional safeguards which the respondents were entitled to rely upon. The respondents would be further entitled, should they establish grounds for such, to have any decisions taken pursuant to the amending legislation reviewed by the High Court.? The Court of Appeal was accordingly satisfied that the appeals were moot.

Application for Leave to Appeal

17. The appellants brought applications for leave to appeal to this Court pursuant to Article 34.5.3? of the Constitution: see [2025] IESCDET 76 and 77.? The Court was satisfied that an issue of general public importance arose as to the parameters of the test of mootness and the circumstances in which an appeal which appears to be moot should be permitted.? The Court stated that if this Court were to decide that the issue is not moot, the venue for the hearing of the substantive appeal against the order of the High Court would have to be addressed.?? Accordingly, that being so, the Court granted leave for a further appeal to this Court.?

Submissions in this Appeal

Submissions of the Appellants

18. The appellants submit that the Court of Appeal erred in finding that the appeals were moot on the basis of the amendments made to the 2015 Act. They contend that, on a correct legal interpretation of the 2015 Act and the State's obligations under EU law, the State is entitled to rely on decisions made lawfully under the pre-amendment provisions in making further decisions within the amended safe third country returns procedure, albeit that any steps will simply be taken under the amended provisions.? ?

19. In their submissions, the appellants summarise the applicable law on mootness, and cite the judgments of McKechnie J. Lofinmakin and O'Donnell C.J. in Odum v Minister for Justice and Equality [2023] 2 ILRM 164 (" Odum "), wherein O'Donnell C.J. referred (at para. 33) to the "interlinked factors of a requirement of a full adversarial context for a legal decision; the management of scarce and expensive court resources; and in cases likely to become precedents, the desirability, and perhaps necessity, of avoiding purely advisory opinions", and explained that "[t]he strength with which these factors will apply in a particular case will determine the issue of whether a trial or appeal is moot, and the related question of whether, even if moot, the trial, or appeal should nonetheless proceed".

20. The appellants submit that the Oireachtas is fully entitled to legislate in a manner whereby the national provisions mirror provisions of EU law which are not binding on Ireland, without those provisions thereby becoming or being regarded as binding obligations on the State as a matter of EU law. They cite CA v Minister for Justice and Equality [2014] IEHC 532 and Sibanda v Minister for Justice and Equality [2024] IECA 206 in support of this submission.? They state that the decisions impugned by the respondents were made pursuant to the 2020 Order and that the lawfulness of that order remains relevant in these appeals. It is said that whether the 2020 Order complies with the actually applicable minimum standards by which Ireland is bound (as opposed to the standards posited as binding in the judgments under appeal now mirrored by the national provisions) remains a fully live issue in these proceedings.?

21. The appellants contend that the Court of Appeal erred in its central finding that any decision in favour of the Minister on appeal would, due to the new statutory framework, have no practical impact or effect. They submit that any such decision would mean that previous decisions challenged by the respondents and quashed by the High Court at trial (in the case of K.E., the IPAT decision and the Minister's decision, and in the case of F.O.M., the refoulement consideration and return order) would be lawful and capable of being relied upon in taking further steps as part of the safe third country procedure. For example, it is said, in the case of K.E., a refoulement consideration could be conducted without any remittal of his international protection application to IPAT.

22. In the appellants' submission, the fact that such a refoulement consideration would take place under the amended s. 50A of the 2015 Act, which now provides, in s. 50A(1), that a return order must not be made where this would be in breach of a person's fundamental rights, would not logically mean that there would be no practical impact or effect attaching to the revalidation of earlier steps in the decision-making procedure, taken before the legislation was amended.

23. Further, the appellants submit, the live nature of the controversy is unaffected by the revocation of the 2020 Order. Under s. 27 of the 2005 Act, such revocation does not "affect the previous operation of" the 2020 Order "or anything duly done or suffered under" it, nor does it "affect any...obligation or liability acquired, accrued or incurred under" it. They submit that where the lawfulness of the challenged decisions depend on the legality of the now-revoked 2020 Order, the appeals are clearly not moot.

24. The appellants submit that the Court of Appeal therefore erred in finding (at para. 62) that s. 27 of the 2005 Act was "not...of assistance to the Minister" simply because the 2024 amendments provide "new and additional safeguards for the respondents which...they are entitled to rely on". The appellants submit that, should they succeed in their appeal, the IPAT Decision and Minister's Decision (in the case of K.E.), and the refoulement consideration and return order (in the case of F.O.M.), would be valid and the consequences thereof (i.e. a rejection of K.E.'s international protection application as inadmissible, and an obligation on F.O.M. to return to the UK) would be unaffected by the 2024 amendments.

25. The appellants conclude by stating that they are not asking this Court to offer a "purely advisory opinion" based on "hypothetical or abstract questions".? They argue that should this Court find that the High Court erred in its view as to what was required by EU law at the time of the making of the 2020 Order, then that Order and any decisions made on foot of it would be fully in compliance with EU law. In such a case, the amendments made to the 2015 Act would be confirmed as not having been required by EU law, but as simply representing domestic law obligations which went over and above those required by EU law, which already been lawfully transposed.? ?They submit that the 2005 Act makes clear that revocation cannot affect the lawfulness of anything done under a statutory instrument such as the 2020 Order.? They argue that, contrary to the premise which underpins the Court of Appeal judgment, there is no legal principle to the effect that amendments to legislation demand that multi-stage administrative decision-making procedures must be recommenced ab initio under the relevant amended provisions.? For all of these reasons, it is submitted that the appeals were and are not moot as a matter of law.

The Court of Appeal erred in not proceeding to hear the appeals even if moot

26. The appellants submit that, even if the Court of Appeal was correct in finding that the appeals were moot, the Court erred in not proceeding to hear the appeals. It is said that these proceedings raise serious issues of constitutional and EU law; issues that are wider than the present proceedings and entail significant implications for the State.? In support of this, the appellants refer to caselaw on jurisdiction to hear a moot appeal. In Lofinmakin, McKechnie J. held (at para. 66) that "even...when an issue is moot, the courts have always maintained a discretion to hear and determine the point". This discretion is dependent on a number of factors, including the importance of the point of law, the general importance of any such decision to the administration of justice, and the resource costs involved in determining such issue.

27.?The appellants cite O'Brien, ** wherein it was held (at para. 19) that despite the plaintiff's limited interest in the proceedings, the defendant retained a real current interest in the issues pending on appeal which suffice to warrant the appeal being heard.? A similar determination was reached in Irwin v Deasy [2010] IESC 35 (" Irwin "). In Lofinmakin, McKechnie J. pointed out that the respective positions of PIAB (in O'Brien) and Revenue (in Irwin) - public bodies exercising statutory functions and seeking clarity regarding their lawful exercise - were of central importance to the decisions to proceed in those cases.

28. The appellants submit that the raising of a point of law of exceptional public importance can itself be a basis for exercising discretion to hear a moot appeal, citing Odum and certain other authorities.? They contend that, similar to the manner in which PIAB in O'Brien and the Revenue in Irwin desired clarity, the State is anxious to obtain clarity regarding two matters of general and fundamental public importance:

(i) Ireland's particular position within the EU legal framework, having regard to Protocol No. 21 to the Treaty on European Union ("TEU") and the Treaty on the Functioning of the European Union ("TFEU") on the Position of the United Kingdom and Ireland in Respect of the Area of Freedom, Security and Justice ("AFSJ") (the "Protocol"); and

(ii) the Irish constitutional law requirements arising in the context of any potential disapplication of the Protocol.

29. The appellants submit that the High Court, in finding that Ireland could be bound by the provisions of the Recast Procedures Directive (on the basis of opting in to the Dublin III Regulation) failed to take into account Ireland's particular position within the EU legal framework. ?That Directive is a measure adopted pursuant to Art. 78(2)(d) TFEU, and falls within Title V of Part Three TFEU which concerns the AFSJ. The Protocol provides, in Art. 2, that no measure adopted pursuant to Title V of Part Three TFEU "shall in any way affect the competences, rights and obligations" of Ireland unless the State expressly opts in to such a measure. Ireland has not done so, and in the appellants' submission the State therefore cannot be bound by it.

30. The appellants refer to case law such as Case C-349/20 NB, AB v Home Secretary EU:C:2022:151 and Case C-616/19 MS v Minister for Justice and Equality EU:C:2020:1010.? They submit that the actual finding in MS is that an interpretation of the obligations that apply to Ireland should be consistent with the common objectives of the Procedures Directive and the Dublin III Regulation, being the measures which are binding on Ireland. They submit that MS does not provide any basis for the conclusion that Dublin III could import the requirements of the Recast Procedures Directive, notwithstanding Ireland's non-participation in that Directive.? Furthermore, the appellants submit that in order for the High Court to justify a finding that Art. 3(3) of the Dublin III Regulation purports to bind Ireland to any requirements of the Recast Procedures Directive, a preliminary reference to the CJEU would have been necessary.

31. The appellants submit that, as a matter of Irish constitutional law, Ireland cannot be bound by any provision of an EU Directive which it has not opted into. It is said that Article 29.4.7? iii forbids Ireland from disapplying the Protocol without the prior approval of both Houses of the Oireachtas, and no such approval has been given.? In the appellants' submission, therefore, the extent to which Ireland may be indirectly bound by an AFSJ measure which it has decided not to opt into, as a result of the provisions of an entirely separate measure which it has opted into, amounts to an issue of exceptional and general public importance. ?It is therefore submitted that the Court of Appeal erred in refusing to hear their appeals, on the basis that the matters at issue, rather than merely concerning the validity of since amended legislation, are of general public and indeed constitutional importance.? ?

The appropriate forum to hear the appeals

32. The appellants submit that the Court of Appeal would be the appropriate forum in which to hear the substantive issues arising on these appeals, should this Court decide that the appeals are not moot. They submit that there are a large number of complex legal issues raised which may benefit from an additional level of intermediate appellate scrutiny. In support of this, they refer to the "advantage of an intermediate appeal", as referred to in Wansboro v Director of Public Prosecutions [2017] IESCDET 115.

Submissions of the Respondents

33. The respondents submit that the essential legal issues arising herein have been resolved legislatively, thereby eliminating the need for further judicial intervention, and that the Court of Appeal correctly applied the principles governing moot appeals. They argue that this Court should not exercise its discretion to hear the moot appeals, as per the principles in Odum, and that any outstanding issues are best resolved by way of fresh proceedings in which the amended legislative framework would apply. They state that it is unclear whether there are any contexts in which the issues raised by the appellants need to be resolved, following the enactment of the 2024 Act.

Mootness

34. The respondents submit that a live controversy must exist between the parties in order for the issue to be justiciable. In the absence of this, a case or an issue in the case can be described as moot (although the court retains a discretion to hear the case, as per Odum). ?They accept that this Court, in Odum, recognised that the approach to mootness on an appeal may be different because of the fact that once a case is decided and is the subject of an appeal, there will be a decision, which in some cases may be capable of being a precedent, and an order for costs, which in some cases can be substantial.

35. In the respondents' submission, the impugned decisions and orders were made under a statutory regime that has now been fundamentally altered.? The 2020 Order has been revoked; the 2015 Act has been amended by the 2024 Act by the imposition of additional requirements that must be applied going forward; and the Minister is required to apply new legal standards and safeguards in any future decision on admissibility. The provisions added by the 2024 Act are plainly forward looking demonstrating an intent that this should apply at point of removal, and removal is still to take place in both of these cases.??

36. Further, it is submitted that removal can now only take place because the UK has been freshly designated a safe third country by the International Protection Act 2015 (Safe Third Country) Order 2025 (S.I. No. 73 of 2025) (the "2025 Order").? Following the enactment of the 2024 Act and the repeal of the 2020 Order, the UK was no longer designated a safe third country, and there was no longer any basis for treating the claims for international protection as inadmissible.? It is submitted that the legal implication of that must be that, at the time of the Court of Appeal decision, the respondents were at no risk of removal, given that the 2020 Order had been revoked.

37. It is submitted that, in light of the matters above, the Court of Appeal correctly found that the decisions challenged are no longer of relevance as any further decisions concerning the respondents would have be made in accordance with the said amendments, and that hence there is no longer any live issue or controversy between the parties.? The respondents contend that the Court of Appeal correctly observed that any future return would require a fresh decision under the amended legislation, subject to further judicial review if necessary.

38. The respondents note the appellants' argument that a decision in favour of the Minister would mean that previous decisions challenged by the respondents would be lawful, ?and capable of being relied upon in taking further steps, such that in K.E.'s case a refoulement consideration could be conducted without remittal to IPAT.? The respondents submit that this ignores the fundamental fact that any such refoulement consideration would now be subject to the enhanced safeguards under the 2024 Act. In that scenario, they contend that a wide-ranging rights review would be required under the amended version of s. 50A of the 2015 Act which would now apply.

39. Similarly, it is submitted, the appellants' argument regarding F.O.M. that steps could be taken to return him to the UK where the return order had already been made, and where the UK is now designated again as a safe third country, fails to recognise that any such return must take place under the 2025 Order made pursuant to the amended provisions in the 2024 Act, not under the impugned 2020 Order.? Provisions such as the amended version of s. 50A of the 2015 Act would apply, as removal has not taken place.

40. The respondents submit that, while this appeal is being determined, they are prejudiced by the delay in the first instance determination of their international protection applications. They submit that this may amount to a violation of their rights under Article 18 of the EU Charter on Fundamental Rights, Article 8 of the European Convention on Human Rights ("ECHR"), and Art. 23(2) of the Procedures Directive.? They say that there is no reason for not progressing their claims for protection.

The Interpretation Act, 2005

41.?The respondents refer to s. 27(1)(b) of the 2005 Act, which provides that the repeal of an enactment does not "affect the previous operation of the enactment or anything duly done or suffered under the enactment", and also to s. 27(1)(c), which provides that the repeal of an enactment does not "affect any right, privilege, obligation or liability acquired, accrued or incurred" under the previous enactment. They note that under s. 2 of the 2005 Act, "repeal" is defined as including legislation which "revoke[s], rescind[s], abrogate[s] or cancel[s]" a previous enactment.? The respondents submit that the key provisions of the 2024 Act are not repeals; they insert additional obligations/standards which must be met before removal takes place. ?They also submit that the express repeal of the 2020 Order does not assist the appellants, on the basis that this repeal is merely a consequence of the imposition of additional requirements before a jurisdiction can be designated a safe third country.

42. The respondents contend that the decisions which the appellants seek to uphold do not come within the terms of s. 27(1) of the 2005 Act. In their submission, the previous operation of the 2015 Act does not prevent the application of the additional obligations imposed by the 2024 Act. Therefore, they submit that s. 27(1)(b) does not apply. As regards s. 27(1)(b), they submit that no right, privilege, obligation or liability has been acquired, accrued or incurred. ?

43. The respondents submit that the 2024 Act does not simply repeal the 2020 Order. Rather, it fundamentally alters the statutory framework, introduces new safeguards, and requires the Minister to make any future decisions in respect of removal to a safe third country under the new statutory regime. In their submission, the effect of this is to require a fresh consideration under the amended law. The appellants' submissions are said to undermine a key objective of the 2024 Act, namely, that additional safeguards be provided at the point of removal. The respondents submit that the Court of Appeal was therefore correct in finding that s. 27 of the 2005 Act was of no assistance to the appellants.

Time when safe country requirements apply

44. The respondents note that Phelan J. held (at para. 179) that the Procedures Directive imposed a "continuing obligation" on Ireland to be "satisfied...up to the time of transfer" that the 2020 Order complied with the provisions of the Directive. They also refer to Article 27(1) of the Procedures Directive, which provides that Member States, in applying the safe third country concept, must be "satisfied that a person seeking asylum will be treated in accordance with the following principles...". ?They submit that the emphasised words make it clear that the exercise required by Article 27 is forward looking, and is intended to ensure that a person seeking international protection will enjoy minimum standards of protection in the country to which they will be sent.? It is submitted that this principle is undermined if new developments in that country can be ignored, on that basis that developments occurred after a final decision had been taken to remove someone.

45. The respondents submit that the subsequent redesignation of the UK as a safe third country (under the 2025 Order) does not support the appellants. In their submission, this redesignation cannot have the effect of rendering previously moot appeals no longer moot. They contend that any issues that arise with the respect that redesignation should be resolved in cases challenging it, and that these appeals cannot address the redesignation.

**

The appeal should not be heard on a discretionary basis

46. The respondents concede that this Court retains discretion to hear a moot appeal, and can in principle exercise the discretion in a different manner to the Court below.? However, they submit that great weight should be afforded to the views of the Court of Appeal in this matter. Firstly, it is submitted that arguments that the appeal was not moot were the primary focus of the appellants' arguments in the Court of Appeal, but ?that they now seek to proffer more extensive arguments that the appeals should be heard despite being moot.? It is submitted that these fresh arguments should not be given weight. Secondly, the respondents submit that if the appeal is moot, that must be because the 2024 Act now applies in this case and in all historic cases. If the issues raised in these appeals remain important enough to warrant a hearing, that must be because they will arise in some different context.?

47. The respondents rely on a number of factors which, in their submission, distinguished the present case from Odum. ?They submit that there are currently a number of other decisions (similar to those which these proceedings concern) which have been challenged, and which remain outstanding in the courts. ?If the matters arising are moot, the implication is that in all pending cases fresh decisions will need to be taken applying the amendments in the 2024 Act.? Because the 2024 Act has fundamentally altered the relevant legal landscape, there is no risk of uncertainty or of the proliferation of inconsistent decisions, as in Odum.

48. The respondents concede that the issue of whether Ireland can be indirectly bound by a measure of EU law which it did not adopt may be of wider importance. However, they submit that this issue may arise in contexts other than that of the present proceedings, and that, if this were to occur, it would be better to resolve it in that other context. In addition, determining this appeal runs the risk of duplication of litigation.? Regardless of the outcome of such an appeal, there is a risk that future challenges will be brought in respect of the 2025 Order, or the issue of the indirect incorporation of EU law.? This is because it may be possible to argue that the Court's judgment can be distinguished in different contexts.?

49. The respondents also submit that, should the proceedings be deemed moot, they will have no interest in the outcome of the appeal, which would impact upon the adversarial nature of proceedings. Furthermore, they submit that it is positively contrary to their interests for the appeal to be heard due to the potential costs implications and the fact that a moot legal argument would further delay their applications for international protection. They further question what interests the State has in the determination of this appeal if it is moot.

50. In the respondents' submission, the interests of justice do not require the determination of the appeal. They contend that, beyond Odum, no exceptional circumstances exist to justify the exercise of the Court's discretion to hear a moot appeal.? ?They submit that the appellants' reliance on the number of pending High Court cases which share similar issues is of no assistance to them.? If these proceedings are moot as the respondents submit, then the pending cases will be decided under the new legislative framework and they are moot in the same way as these appeals are.? The pending cases should not be delayed while a moot appeal is determined.

The appropriate venue

51. The respondents submit that, in the event that the Court determines that these appeals should be heard, this Court is the appropriate venue, and they proffer a number of reasons in support of this. ?In particular, they submit that this Court has already indicated that the substantive grounds of appeal raise issues of public importance. In the respondents' submission, these issues are therefore likely to come before this Court at some later stage if not determined in these proceedings. Remittal would therefore be inappropriate.

Decision

The Legal Principles

52. The principles governing the doctrine of mootness have been set out in some recent decisions of this Court, including Lofinmakin and Odum.? In Lofinmakin, McKechnie J. stated as follows:

"[82] From the relevant authorities thus reviewed...the legal position can be summarised as follows:

(i) a case, or an issue within a case can be described as moot when a decision thereon can have no practical impact or effect on the resolution of some live controversy between the parties and such controversy arises out of or is part of some tangible and concrete dispute then existing;

(ii) therefore, where a legal dispute has ceased to exist, or where the issue has materially lost its character as a lis, or where the essential foundation of the action has disappeared, there will no longer be in existence any discord or conflict capable of being justiciably determined;

(iii) the rationale for the rule stems from our prevailing system of law which requires an adversarial framework, involving real and definite issues in which the parties retain a legal interest in their outcome.? There are other underlying reasons as well, including the issue of resources and the position of the Court in the constitutional model;

(iv) it follows as a direct consequence of this rationale, that the court will not - save pursuant to some special jurisdiction - offer purely advisory opinions or opinions based on hypothetical or abstract questions;

(v) that rule is not absolute, with the court retaining a discretion to hear and determine a point, even if otherwise moot.? The process therefore has a two step analysis, with the second step involving the exercise of a discretion in deciding whether or not to intervene, even where the primary finding should be one of mootness;

(vi) in conducting this exercise, the court will be mindful that in the first instance it is involved in potentially disapplying the general practice of supporting the rule, and therefore should only do so reluctantly, even where there is an important point of law involved.? It will be guided in this regard by both the rationale for the rule and by the overriding requirements of justice;

(vii)? matters of a more particular nature which will influence this decision include:

(a) the continuing existence of any aspect of an adversarial relationship, which if found to exist may be sufficient, depending on its significance, for the case to retain its essential characteristic of a legal dispute;

(b) the form of the proceedings, the nature of the dispute, the importance of the point and frequency of its occurrence and the particular jurisdiction invoked;

(c) the type of relief claimed and the discretionary nature (if any) of its granting, for example , certiorari;

(d) the opportunity for a further review of the issue(s) in actual cases;

(e) the character or status or the parties to the litigation and in particular whether such be public or private:? if the former, or if exercising powers typically of the former, how and in what way any decision might impact on their functions or responsibilities;

(f) the potential benefit and utility of such decision and the application and scope of its remit, in both public and private law;

(g) the impact on judicial policy and on the future direction of such policy;

(h) the general importance to justice and the administration of justice of any such decision, including its value to legal certainty as measured against the social cost of the status quo;

(i) the resource costs involved in determining such issue, as judged against the likely return on that expenditure if applied elsewhere; and

(j) the overall appropriateness of a court decision given its role in the legal and, specifically, in the constitutional framework.

[83] The matters above mentioned as being material to the exercise of the court's discretion are indicative only and are not intended in any way to be exhaustive and may well have to be adjusted to reflect the particular circumstances of any given situation.? However, once all appropriate matters are established and their relevance identified, the conclusion of the resulting analysis in all cases should reflect the basic purpose of the rule and should be concordant with its underlying rationale.??

[84] In summary it can be said that, in light of the considerations stated above, the courts do not in principle try issues which are moot, notwithstanding that these may have been an important question of law in issue between the parties and it is only where there are a range of exceptional circumstances that the courts will exercise their discretion to do so."??????????????????????

53. In his judgment for this Court in Odum, O'Donnell C.J., having cited the above judgment of McKechnie J. with approval, deduced the following principles from the case law:

"31. First, the US approach, while the most well-developed jurisprudence on the concept of mootness, cannot however, be considered a direct guide to the decision in any case in this jurisdiction.? There are a number of important distinctions between the position in the US and that which applies here...

1. It follows that the US approach cannot be simply read across to this jurisdiction.? Instead, the jurisprudence of the US must...be approached with caution.? Indeed, it might be thought that the logic of the US approach would appear to be that where a judgment leads inevitably to a costs order, and where dismissal of the appeal would leave in place both the decision of the Court below as between the parties, and the judgment of the Court as a precedent more generally, that there would be a narrower scope for any doctrine of mootness.

2. Second, however, it is apparent that a core principle can be identified as justifying a principle of mootness in common law jurisdictions.? That principle is based on the importance in the common law system of the resolution of cases which can [be] characterised as present, live controversies.? As set out in Borowski ([1989] 1 SCR 342), this is central to the principle of mootness, because of the interlinked factors of a requirement of a full adversarial context for a legal decision; the management of scarce and expensive court resources; and in cases likely to become precedents, the desirability, and perhaps necessity, of avoiding purely advisory opinions.? The strength with which these factors will apply in a particular case will determine the issue of whether a trial or appeal is moot, and the related question of whether, even if moot, the trial, or appeal should nonetheless proceed.

3. Third, there is a close connection between the principles underlying standing, particularly constitutional claims, and mootness.? However, that does not mean that circumstances where a court considers that a claimant does not have sufficient standing to commence proceedings, will inevitably lead to a conclusion that if similar circumstances arise pending an appeal, that the appeal will be moot.? The position at the two points in time is not the same: once a case is decided and is the subject of an appeal, there will be a decision (which in some cases may be capable of being a precedent controlling other cases and decisions) and an order for costs, which in some cases can be substantial...

4. In the particular case of an appeal to this court, there is, moreover, the important factor that the court will have determined that the appeal involves an issue of law which can be said not only to be important, but to be of general public importance.? This means both that the issue is likely to recur (since it is general) and that it is almost inevitable that when it does occur, that it will not be possible to resolve it at any lower level than this court, and that leave to appeal to this court will in due course be necessary.? In such circumstances, the granting of leave to appeal raises at least a temporary question mark over the decision subject to an appeal and creates a degree of uncertainty about the law which in normal circumstances is the function of this court to seek to resolve and clarify as soon as possible.? Dismissal of an appeal in such circumstances has different consequences in law than the refusal of leave to commence proceedings which have not been determined, and accordingly it is not to be expected that the application of the same principles underlying the rules on both standing and mootness will lead to the same outcome in every case."

54. Section 27 of the 2005 Act, which as noted above is relied upon by the appellants, provides as follows:

"(1) Where an enactment is repealed, the repeal does not -

(a) revive anything not in force and not existing immediately before the repeal,

(b) affect the previous operation of the enactment or anything duly done or suffered under the enactment,

(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under the enactment..."

Application of the Principles

55. As per the two-step analysis set out by McKechnie J. in Lofinmakin, the first question is whether these appeals are now moot.? If moot, the second step would involve the exercise of a discretion whether to proceed to hear the appeals even though they are moot.

56. As regards the first question, I am satisfied that the Court below was correct in finding that these appeals are moot, as a result of the legislative amendments brought about by the 2024 Act.

57. Looking first at the position regarding K.E., IPAT determined that his application for international protection was inadmissible because the UK was a "safe third country", based on the designation of the UK as such under the 2020 Order.? That Order was subsequently revoked by the 2024 Act, prior to the Minister making any return order under s. 51A of the 2015 Act.? The UK was again designated as a "safe third country", for the purposes of the 2015 Act, by the 2025 Order.

58. During the oral hearing of these appeals, counsel for the appellants struggled to explain the status of the Minister's inadmissibility decision following the revocation of the 2020 Order in 2024, given that the said decision was based upon the operation of that Order.? In my opinion that decision did not continue, and could not have continued, to have any legal force after the revocation of the 2020 Order, and was not in some way revived by the 2025 Order, which order was made under an amended version of s. 72A of the 2015 Act.? As the Court below pointed out, such order could be the subject of further judicial review proceedings.

59. In the circumstances it seems to me that there will have to be new decisions on the admissibility of K.E.'s application for international protection, if it still subsists, or a new application by him which is subject to the new statutory provisions.? There is no longer a live controversy between the parties as to whether the previous inadmissibility decisions, taken under the previous version of the legislation, were legally valid.? As held by the Court below, even a decision in favour of the Minister on this appeal would have no practical impact or effect.? Thus, the appeal regarding K.E. has become moot as a result of the legislative amendments.

60. Turning to the position regarding F.O.M., while this case had progressed further than K.E.'s case in that the Minister had issued a return order under s. 51A of the 2015 Act in January, 2023, directing F.O.M. to return to the UK, the key point is that removal has not yet taken place.? Therefore, it seems to me, the Minister would now be obliged, in advance of removal, to carry out a new refoulement consideration under the amended version of s. 50A with the enhanced safeguards.?

61. While counsel for the appellants did not accept the above proposition during the oral hearing, he did accept that F.O.M. would be able to make new "change of circumstances" submissions to the Minister under s. 50A(3) of the 2015 Act based upon the additional protections brought about by the 2024 Act, and that the Minister would be obliged to consider same.? In my opinion, this in effect would achieve the same outcome, that the matter would ultimately be governed by the new statutory regime as opposed to the previous regime.?

62. In the circumstances it seems to me that there will again have to be new decisions by the Minister in the case of F.O.M., as to refoulement and/or as to making a return order.? Again, there is no longer a live controversy between the parties as to whether the previous decisions were legally valid.? Again, as held by the Court below, even a decision in favour of the Minister on this appeal would have no practical impact or effect.? Thus, the appeal regarding F.O.M. has also become moot as a result of the legislative amendments.?

63. In her judgment, with which the majority of the Court agree, Donnelly J. states (at para. 29) that the issue of whether the State is obliged by EU law to legislate to include the definition of serious harm set out in the Recast Procedures Directive must be viewed as a live controversy between these parties.? With respect, I cannot agree, in circumstances where the national legislation now includes that definition, irrespective of whether it arose out of an obligation under EU law or otherwise.?

64. Donnelly J. goes on to refer to para. 46 of the judgment of the Court below which, having cited the legislative amendments in the 2024 Act, stated as follows:

"Counsel for the appellants accepted that these statutory amendments mirrored or reflected the terms of the High Court judgment but strongly resisted any suggestion that the amendments amounted to an admission that the judgment of the High Court was correct.? However, it seems to me inescapable that if, in the future, either of the respondents are going to be returned to the UK as a safe third country such would involve consideration by the Minister of an additional principle provided for in Art. 38 of the Recast Directive.? A reconsideration by the Minister of the situations of both respondents would be inevitable.? This clearly raises the issue of mootness."

65. Donnelly J. states (at para. 29) that the "result of the Court of Appeal's finding is that all such future consideration must be undertaken as an obligation of EU law".? With respect, I would not agree with this analysis of the above passage from the judgment of the Court below, for the following reasons.

66. While Meenan J. did refer to consideration by the Minister of "an additional principle provided for in Art. 38 of the Recast Directive", and while a reading of this sentence taken alone might suggest that he was referring to future consideration having to be undertaken as an obligation of EU law, for my part I think that this is reading too much into those words.? Firstly, it is literally the case that the additional principle was originally "provided for" in Article 38 of the Recast Directive.? Secondly, I do not read Meenan J.'s judgment overall as finding that the Minister must consider the additional principle because it is an obligation of EU law.? It seems to me that the overall thrust of Meenan J.'s judgment is clear: that the Minister must consider the additional principle as a result of the legislative amendments brought about by the 2024 Act, irrespective of EU law (see para. 54 - 56).?

67. As regards the appellants' reliance on s. 27 of the 2005 Act, I agree with the Court below that this statutory provision is not of assistance to the appellants.? As stated by Meenan J. in his judgment for the Court below, the 2024 Act goes considerably further than repealing the relevant statutory instrument, as it also provides new and additional safeguards for the respondents which they are entitled to rely upon.

68. As set out above, the second step in the two-step approach set out by McKechnie J. in Lofinmakin would be whether, even though there has been a finding of mootness, this Court should still exercise its discretion to hear the appeals.? In circumstances where the majority of the Court find that the appeals are not moot, it is not necessary for me to express a view on the second question.

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