High Court of Ireland Decisions

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THE HIGH COURT

[2025] IEHC 220

[Record No. 2025/ HJR/ 367]

BETWEEN

G.T.

APPLICANT

AND

 

THE INTERNATIONAL PROTECTION APPEALS TRIBUNAL, THE CHIEF INTERNATIONAL PROTECTION OFFICER, THE MINISTER FOR JUSTICE AND THE COMMISSIONER OF AN GARDA SÍOCHÁNA

RESPONDENTS

JUDGMENT of Ms. Justice Marguerite Bolger delivered on 28^th March 2025

 

1.    This judgment records my reasons for refusing the applicant's injunction application restraining his deportation order relating to a deportation order of 31 May 2023 which was scheduled to take place at 9.00am on 19 March 2023. The application was heard urgently, on notice, on the afternoon of 18 March.

2.    In his proceedings, the applicant also sought leave to judicial review both the decision of the IPO of 18 February 2025 refusing his application pursuant to s. 22 of the International Protection Act 2015 for the Minister's consent to make a subsequent application for international protection, and the decision of IPAT of 13 March 2025, refusing his appeal. This judgment only deals with the applicant's application for injunctive relief.  His application for leave has been adjourned to the asylum list to be assessed at a later stage. Therefore, some of the applicant's submissions which relate to his challenge to the IPO and IPAT decisions are not addressed herein and remain to be considered in his application for leave.

3.    For the reasons set out below, I refused the application for an injunction restraining the applicant's deportation from taking place.

Background

4.    The applicant has made a number of applications pursuant to the 2015 Act since 2023, the details of which are set out in the very recent decision of Phelan J. of 14 March last between the same parties (G.T. v. Minister for Justice & ors (No. 2) [2025] IEHC 154). In this judgment, I refer only to the main elements of that history. By decision of 10 May 2023, the IPO refused the applicant's application for international protection. By decision dated 27 March 2023, IPAT refused the applicant's appeal. A deportation order was made by the Minister on 31 May 2023, which remained extant as of the date of the within hearing. None of those decisions were challenged by the applicant.

5.    On 28 June 2023, the applicant made an application pursuant to s. 3(11) of the 2015 Act, on which a decision was made by the Minister on 12 March 2025.  On 28 January 2025, the applicant was arrested and detained for the purpose of effecting the deportation order. On 12 February 2025, the applicant, through his current solicitors, made an application pursuant to s. 22 for consent to make a subsequent application for international protection, claiming, inter alia, that he had not been furnished with all the documents relevant to his application for international protection. The IPO refused this application on 18 February 2025 and the applicant appealed to IPAT on 19 February 2025 and sought an undertaking that he would not be deported pending his appeal. The Minister refused to give that undertaking and the applicant sought an injunction to restrain his deportation pending the appeal. An interlocutory injunction was granted by Simons J. on 27 February 2025. The full hearing of the injunction took place before Phelan J. on 11 March 2025, and judgment was delivered electronically on the morning of 14 March 2025. Injunctive relief was refused on the basis that s. 22 did not have suspensive effect pending the outcome of an appeal to IPAT. The evening before the delivery of that judgment, IPAT issued its decision on 13 March 2025 refusing the applicant's s. 22 appeal.

6.    The applicant's within application for leave seeks to challenge the IPO refusal of his s. 22 application and IPAT's refusal of his appeal therefrom, relying on what he says was a breach of his fair procedure rights arising from a failure to furnish all relevant documents to him, as a result of which he says he was unable to make full representations before the IPO and IPAT. He also contends that his complaints in relation to his previous representative in his 2023 application for international protection, who was a non-professionally qualified legal consultant, were not properly addressed by the IPO and IPAT. He criticises both decisions for failing to provide substantive reasons and failing to consider all his particular circumstances. Those submissions are primarily a matter for the applicant's substantive application for leave, and I reference them here to provide context to his injunction application that was moved before me.

The applicant's grounds for injunctive relief

7.    The applicant sought an injunction restraining the third and/or fourth respondents from taking any steps to deport him from the State, pending the determination of his judicial review proceedings.  The grounds on which he relies are set out at paragraphs (i)(7)-(10) of the statement of grounds:-

"7. The Applicant's application under s.22 of the International Protection Act 2015 had automatic suspensive effect restraining deportation, pending the finalisation of the first instance stage of the s.22 procedure. As the Applicant challenges the IPO s.22 decision in the proceedings herein, the first instance stage will not be finalised until these proceedings are determined, and accordingly the Applicant has a right to remain in the State pursuant to Article 7 of Directive 2005/85/EC).

8. Further or in the alternative, should the Applicant be deported from the State prior to the determination of these proceedings, he would be at real risk of persecution and/or serious harm and/or refoulment, and otherwise not be able to take up any remedies pursuant to national and/or EU Law (and in particular the right to an effective remedy pursuant to Article 39 of Directive 2005/85/EC).

9. Without prejudice to the foregoing, the balance of convenience lies with the Applicant being permitted to remain in the State while the proceedings herein are determined. The Applicant had presented cogent evidence of a risk of harm in Georgia should he be deported, and was not able to comment on material matters utilised in the decisions under challenge. If the Applicant were deported and at a later stage were to be successful in his challenge before this Honourable Court and subsequent s.22 application/appeal, this would not result in his readmission to the State, and he would remain at risk in Georgia. The Applicant has real fears of refoulment, persecution and/or serious harm if returned to Georgia. Although Phelan J. refused injunctive relief restraining deportation in her decision of 14^th March 2025 ([2025] IEHC 154, in the Applicant's separate proceedings 2025/264 JR), this refusal was in a different legal context, and does not preclude the Court from granting injunctive relief pending the determination of the proceedings herein.

10. As regards the interlocutory injunction, and bail as sought, it is submitted that damages would not be an adequate remedy and the balance of convenience lies in granting such interim and interlocutory relief as may be necessary."

 

The evidence relied on is set out in the applicant's grounding affidavit sworn on 17 March 2025, much of which relates to his claim that he was denied fair procedures, both before the IPO and IPAT, but that is not the legal basis for his application for injunctive relief, as can be seen from the grounds he set out in his statement of grounds for injunctive relief.  What is relevant to this application is his reference in his affidavit to his fears if he is returned to Georgia, which is set out at paragraphs 14, 32 and 36 which provide as follows:-

"14. Due to my experiences in Georgia, I am fearful that if returned there I would face further persecution and/or serious harm. I do not think the police would protect me from my family due to it being a family/domestic issue, based on my experiences, and ongoing corruption in Georgia. I do not have any supports in Georgia except for my elderly Grandfather.

32. As set out in detail in the correspondence by my legal representatives, I am most concerned should I be returned to Georgia due to the ongoing political developments, and escalation of violence there at the hands of the State Authorities. I was found not to be a member of the Girchi party by IPAT in 2023, however, I remain opposed to the current government in Georgia. I have also been outside Georgia for almost 3 years, and I understand that I will be returned to Georgia as a failed asylum seeker.

36. I am afraid of being harmed, subjected to refoulement, persecution and/or serious harm, should I be returned to Georgia. Whilst my application was submitted at a late stage, it was made bona fide and after receiving legal advice in relation to my fears and developments in Georgia. Should I be deported from the State, I will not be able to pursue my s.22 appeal if the proceedings herein are determined in my favour. I would also not be able to benefit from any positive subsequent s.22 appeal decision if I was deported from Georgia, as I understand and am so advised that an application for international protection must be made from within the State."

8.    The applicant also refers to the inadequacy of damages as a remedy if this interlocutory injunction was to be refused. This point was not extensively addressed in oral submissions but, for the avoidance of doubt, I accept that damages are unlikely to be an adequate remedy in any application for injunctive relief in an asylum matter.  The prospect of damages does not provide an adequate remedy for this applicant at this point in time.

9.    The principles applicable to an application for an injunction to restrain a deportation order have been set out by the Supreme Court in Okunade v. Minister for Justice, Equality and Law Reform & ors [2012] 3 IR 152. Both parties agreed that this decision informs and binds this Court in determining this application, though they disagree as to what the most important factors arising from that decision are. I set out below the relevant principles of law developed by the Supreme Court in that decision, which remain binding on this Court.  I also set out below the salient principles from the judgment of Phelan J. in relation to this applicant. Whilst the applicant contends that that decision relates to a different legal context, counsel for the applicant accepted that there is a significant overlap in the findings made by Phelan J. and the issues to be determined by this Court.  This Court is bound by that decision, where relevant, and there is no good reason to depart from or to distinguish it.

Okunade

10. The issue before the Supreme Court in Okunade was also an attempt to injunct the deportation of a failed asylum seeker and their minor child. Ultimately, the court granted an appeal against the High Court's refusal of an injunction by reference to the applicants' family status, which the court found had not been properly or adequately considered by the trial judge. No such family life claim was made here relating to this applicant who is a single man with no children. The Supreme Court outlined the general principles for an injunction of establishing an arguable case and emphasised the need to consider where the least risk of injustice lies.  Clarke J. (as he was then) stated at paragraph 107; "A significant weight needs to be attached to the implementation of decisions made in the immigration process which are prima facie valid." He went on at paragraph 110 as follows:-

"The default position is, therefore, that an applicant will not be entitled to a stay or an injunction... [A]n applicant must, of course, be entitled to put before the court the practical consequences of being deported pending the conclusion of the judicial review process, such as the relevant conditions in any country to which the applicant is likely to be deported. There may, as already noted and as the trial judge recognised be some cases where the presence of the applicant for the hearing of the judicial review proceedings is necessary. If that is so then all due weight needs to be attached to that factor. In a case where an applicant would suffer material prejudice in the presentation of the case at trial very great weight would need to be attached to that fact."

11.  The court identified what an applicant might have to establish in order to tilt the balance in favour of an injunction to restrain a deportation, stating at paragraph 111:-

"[I]f an applicant can demonstrate that deportation, even on a temporary basis, would cause more than what one might describe as the ordinary disruption in being removed from a country in which the relevant applicant wished to live, such as a particular risk to the individual or a specific risk of irremediable damage then such factors, if sufficiently weighty, could readily tilt the balance in favour of the grant of an injunction or a stay."

The court went on to say, at paragraph 112:-

"Where, on an arguable grounds basis, the situation with which a judge of the High Court is faced when considering an interlocutory injunction application in this field is one where there is a credible basis for suggesting that a real risk of significant harm would attach to the applicant on deportation, then it would require very weighty considerations indeed to displace the balance of justice on the facts of that case, certainly if what was intended was a deportation back to the country in which the relevant applicant would face those risks (rather than, for example, to an earlier "safe" country in accordance with the Dublin Convention)."

Thus, the concept of a "safe" country (such as Georgia has been confirmed to be most recently in February of this year) was affirmed by the Supreme Court.

G.T. v. Minister for Justice & ors, judgment of Phelan J. of 14 March 2025

12. In her judgment, Phelan J. analysed the relevant provisions of the 2015 Act, the Procedures Directive of 2005 and the case law in rejecting the applicant's argument that an appeal to IPAT, from a refusal by the IPO of his s. 22 application, carried a suspensive effect in relation to the deportation order previously made. She said, definitively, at paragraph 108:-

"It seems to me to be now firmly established in Irish law by the decisions of the Supreme Court in P.N.S (Cameroon) and Seredych that insofar as an injunction may be granted pending determination of an appeal against a refusal to grant consent to a subsequent international protection application, the power to grant such an injunction does not derive from any suspensive effect of an appeal under s. 22 (8) of the 2015 Act. This is because none has been provided for under the 2015 Act and none is required by the Procedures Directive."

She went on, at paragraph 109:-

 "I am bound to follow the well settled law in P.N.S and Seredych, which aligns with the position of the CJEU in Tall and which leaves no ambiguity as to whether the Applicant has a right to remain in the State pending the outcome of his appeal."

13. Phelan J. went on to assess the country of origin information on which the applicant sought to rely. That analysis of that country of origin information is very relevant to the within application as the country of origin information he has exhibited and on which he relies in validating his stated fears about returning to Georgia is the same as the country of origin information that was before Phelan J.  Phelan J. stated the following at paragraph  150:- 

"It seems to me from a consideration of all the material before me that while the reports relied upon by both sides substantiate issues relating to the human rights position in Georgia generally which are of course concerning, they do little to advance the core issue for me on this application which remains whether the concerns documented are such that they would trigger an entitlement as a matter of law to injunctive relief because of the risk of a breach of the Applicant's fundamental rights were he returned to Georgia due to his particular circumstances. This is because none of the material supports the Applicant's personal claim to have been politically involved at all and therefore identifies him as a person who might have a particular risk.

Phelan J. further stated at paragraph 152:-

"Noting that he no longer appears to maintain a claim of risk arising from criminal elements in Georgian society and no new material is advanced in relation to this element of his initial claim, in my view he has not demonstrated that he is at real or substantial risk of a serious interference with fundamental rights which the State is obligated to protect were he returned [to] Georgia. As he does not meet the evidential threshold which applies to adequately ground the relief he seeks, his application for injunctive relief must fail."

14. Phelan J. also addressed some of the concerns used by the applicant in relation to what he said was the poor quality of his earlier non-professional legal advice on which he had relied in his unsuccessful application for international protection and his appeal therefrom and stated, at paragraph 136:-

"The Applicant makes no attempt to address the questions arising from the claims made through his solicitor in the s. 22 application on affidavit in these proceedings in relation to what he knew or did not know and why he did not secure legal representation. Indeed, it is unclear what it is suggested might have been done differently such that a different outcome might have been achieved, had he been legally represented. The Applicant has not sought to establishes his bona fides by giving direct evidence to substantiate a concern in relation to the previous decision-making process which he contends should have a bearing on whether consent is given to a subsequent application on his behalf at this late stage or should be relied upon to substantiate a basis for granting injunctive relief on this application. All of these factors combine to weaken his claim that had he been properly legally represented, he could have advanced a stronger claim leading to different findings before IPAT. Frankly, this seems to be a rather unlikely proposition in all the circumstances and is not one to which I can attach much substance."

15. The applicant contended in the within application that he averred to the consequences of his previous poor representation for his later s. 22 application (in which he was represented by his current solicitors). It was not clear to me what those consequences were for this application or the underlaying s. 22 application, but his counsel did say they are matters that should be considered by the IPO and IPAT, rather than by this Court. I do not, therefore, rely on those points in relation to the injunction application and I note they are not relied on in the applicant's grounds for injunctive relief in his statement of grounds as set out at paragraph 6 above.

Decision

16. The issue for this Court is whether the applicant has established an arguable case for an injunction in accordance with the principles developed by the Supreme Court in Okunade and, in particular, whether he has established that the least risk of injustice lies in favour of restraining the implementation of his deportation order. Counsel for the applicant contends that the fair procedure points on which the applicant relies are themselves determinative of the applicant's entitlement to an injunction. I do not agree, and in any event, they are not the grounds on which the applicant seeks injunctive relief in his Statement of Grounds. The applicant's fair procedures point will be a matter for the application for leave for judicial review, which is yet to be heard.

17. Insofar as the applicant seeks to rely on those fair procedure points in support of his application for an injunction, they are of far less weight than the refoulement points he has raised.  In accordance with Okunade, in determining whether the applicant has established a real risk of significant harm if he is deported, this Court must have regard to the State's categorisation of Georgia as a safe country, at least applicable to the applicant's situation (although possibly not to other persons, in particular members of the LGBTQ community, an issue that does not arise here). The country of origin information before this Court has already been assessed by Phelan J. as not meeting the evidential threshold to adequately ground the application for an injunction that was before her. I agree with and adopt her reasoning and see no basis on which to distinguish it from the assessment of the country of origin information for the purpose of this injunction to restrain the applicant's deportation.

18. The applicant also asks the court to view the suspensive effect of an IPO application as continuing through to his judicial review of that IPO decision. The applicant's judicial review is both of the first instance IPO decision and the appeal decision by IPAT.  He argues that a failure to allow the judicial review process to suspend the deportation order would undermine the rights he has to suspend that order while the IPO process is ongoing. The Statement of Grounds contends that a failure to do so would breach the relevant provisions of the Procedures Directive, including the applicant's Article 39 rights to an effective judicial remedy.  However, in oral submissions, council for the applicant wisely conceded that this was going too far. The Procedures Directive does not, as confirmed by Phelan J., give rise to a suspensive effect of a deportation order once the first instance IPO decision has been made. Any suspensive effect comes to an end with the IPO decision and the court has no jurisdiction pursuant to the 2015 Act or the Procedures Directive to continue it thereafter. To apply such a suspensive effect would require the exercise of the Court's inherent jurisdiction and, in a situation such as this where clear procedures have been put in place by the Oireachtas, I consider this would bring the court into an unacceptable attempt at judicial law-making. These issues are, as recognised by the Supreme Court in Okunade, at paragraph 40, "policy questions which are properly within the constitutional remit of the Oireachtas".

19. I, therefore, reject the applicant's argument that a judicial review can operate to suspend a deportation order and/or is a weighty factor in the balancing exercise of where the least risk of injustice lies. Neither is it, as asserted by the applicant, an element of his right of access to the court. The applicant has gone through extensive processes in his applications pursuant to the 2015 Act and is not an individual who has been denied access to the courts.  As I set out below, this access may continue even after any implementation of the deportation order.

20. In determining that the applicant is not entitled to an injunction and that the least risk of injustice rests with allowing the deportation order to take effect, I have taken account of the options open to the applicant if his judicial review proceedings are ultimately successful after he returns to Georgia. I have further considered his ability to engage in any appeal and/or decision-making process that this Court might remit to the IPO or IPAT. The applicant asserts that, if he were deported and was later successful in the judicial review proceedings, that this would not lead to his readmission to the State because an application for international protection cannot be made from outside the State. This is correct. However, on instructions from his client, counsel for the respondents confirmed that the applicant, if successful in his judicial review proceedings and subsequent fresh application to the IPO or IPAT, could apply under s. 11 for revocation of the deportation order, which would be expected to be successful absent national security or criminality issues (neither of which have ever been alleged against this applicant in any of his applications pursuant to the 2015 Act). The applicant could then either apply for a visa to travel lawfully to the State or, alternatively, might attempt to travel to the State without a visa. Once the applicant presents himself at the frontiers of the State, he could process any further application for international protection that may be available to him depending on the outcome of the within substantive judicial review proceedings and any subsequent remitted s. 22 application.   For the avoidance of doubt, I wish to make it clear that these are simply observations of what could arise in the event of a successful judicial review and subsequent application upon remittal and are not to be taken in any way as restricting the independent decision-making in any yet to be determined process.

Conclusions

21. In determining that the balance of convenience and least risk of injustice favours refusing the applicant's application for an injunction to restrain his deportation, I take account of the following: -

(1)          The absence of evidence of a real risk of a breach to the applicant's fundamental rights if he is returned to Georgia due to his particular circumstances, in relation to which I follow the decision of Phelan J.

(2)          The absence of any suspensive effect of a judicial review of the IPO or IPAT decisions, arising from s. 22 of the Procedures Directive or otherwise.

(3)          The possibility of the applicant's return to the frontiers of the State from where he could process any subsequent application for international protection that he may be permitted to make in the event of a successful judicial review of the decisions of the IPO and IPAT impugned in the within proceedings, and a successful outcome to any remittal of his s. 22 application to the IPO and/or IPAT.

I, therefore, refuse the applicant's application for an injunctive relief.

22. I will put the matter in for mention before me at 10.30am on 2^nd May next to deal with costs, any other matters arising from my judgment and the application for leave which I will hear on that date. If the parties wish to make written submissions in addition to the submissions already filed, they should be filed with the court by 4pm on Wednesday 30^th April.

 

 

Counsel for the Applicant: Anthony Hanrahan SC, Siobhan Clabby BL

Counsel for the Respondents: David Conlon Smyth SC, Sarah Cooney BL