Opinion of the Advocate General — ECLI:EU:C:2023:121
Date: 2023-02-16
Language of the case: English
Subject matter: Asylum policy;Area of freedom, security and justice
Procedure: Reference for a preliminary ruling
Origin: Ireland

Summary Chronology
5. Before proceeding further it may assist in understanding this judgment for the court to 
insert in the body of the judgment the summary chronology of events that counsel for the 
respondents has kindly prepared, viz:
“01.07.2015 Applicant arrives in the State.
02.07.2015 Applicant applies for international protection.
15.02.2016 Applicant interviewed by ORAC.
14.11.2016 ORAC refuses the Applicant international protection
status.
02.12.2016 Appeal of ORAC decision filed with IPAT.
31.12.2016 The International Protection Act 2015 is commenced.
13.03.2017 Applicant applies for subsidiary protection.
14.03.2017 Applicant completes subsidiary protection
questionnaire.
25.07..2017 Legal submissions on behalf of the Applicant
submitted.
01.08.2017 IPO interview.
29.02.2018 Subsidiary protection refused by the IPO.
6
13.02.2018 Appeal to IP AT.
22.08.2018 Hearing.
04.09.2018 Letter received by first respondent from the
applicant’s solicitor attaching a medical report.
11.09.2018 Letter received from the applicant attaching copy of
SPIRASI referral letter.
07.02.2019 IP AT affirms the recommendation of the IPO to 
refuse both international protection and subsidiary
protection.”
V
Some Legislation of Relevance
i. European Union legislation
a. The Procedures Directive
6. Article 8(2) of the old Procedures Directive (Council Directive 2005/85/EC of 1 December 
2005 on minimum standards on procedures in Member States for granting and withdrawing 
refugee status (O.J. L326, 13.12.2005, pp. 13-34, as repealed and replaced by the current 
Asylum Procedures Directive, i.e. Directive 2013/32/EU of the European Parliament and of the 
Council of 26 June 2013 on common procedures for granting and withdrawing international 
protection (O.J. L180, 29.6.2013, pp.60-95), provided as follows:
“Member States shall ensure that decisions by the determining 
authority on applications for asylum are taken after an appropriate 
examination. To that end, Member States shall ensure that: (a) 
applications are examined and decisions are taken individually, 
objectively and impartially; (b) precise and up-to-date information is
1
obtained from various sources, such as the United Nations High 
Commissioner for Refugees (UNHCR), as to the general situation 
prevailing in the countries of origin ofapplicants for asylum and, where 
necessary, in countries through which they have transited, and that 
such information is made available to the personnel responsible for 
examining applications and taking decisions; (c) the personnel 
examining applications and taking decisions have the knowledge with 
respect to relevant standards applicable in the field of asylum and 
refugee law.”
7. Largely but not entirely similar provision is made in Art. 10(3) of the current Asylum
Procedures Directive which states, as follows:
“Member States shall ensure that decisions by the determining 
authority on applications for international protection are taken after an 
appropriate examination. To that end, Member States shall ensure that:
(a) applications are examined and decisions are taken individually, 
objectively and impartially; (b) precise and up-to-date information is 
obtained from various sources, such as EASO and UNHCR and 
relevant international human rights organisations, as to the general 
situation prevailing in the countries of origin of applicants and, where 
necessary, in countries through which they have transited, and that 
such information is made available to the personnel responsible for 
examining applications and taking decisions; (c) the personnel 
examining applications and taking decisions know the relevant 
standards applicable in the field of asylum and refugee law; (d) the 
personnel examining applications and taking decisions have the 
possibility to seek advice, whenever necessary, from experts on 
particular issues, such as medical, cultural, religious, child-related or 
gender issues
b. The Qualification Directive
8
8. Article 4(l)-(2) of the Qualification Directive (recast) (Directive 2011/95/EU of the 
European Parliament and of the Council of 13 December 2011 on standards for the 
qualification of third-country nationals or stateless persons as beneficiaries of international 
protection, for a uniform status for refugees or for persons eligible for subsidiary protection, 
and for the content of the protection granted (recast) (O.J. L337, 20.12.2011, 9-26)), provides 
as follows:
“7. Member States may consider it the duty of the applicant to
submit as soon as possible all the elements needed to 
substantiate the application for international protection. In 
cooperation with the applicant, it is the duty of the Member 
State to assess the relevant elements of the application.
2. The elements referred to in paragraph 1 consist of the
applicant’s statements and all the documentation at the 
applicant’s disposal regarding the applicant’s age, 
background, including that of relevant relatives, identity, 
nationality(ies), country(ies) and place(s) of previous 
residence, previous asylum applications, travel routes, 
travel documents and the reasons for applying for 
international protection.”
ii. International Protection Act 2015
9. Section 28(4) of the Act of 2015 provides, inter alia, as follows:
“The assessment, by the international protection officer of an 
application, and by the Tribunal of an appeal under section 41, shall 
be carried out on an individual basis and shall include taking into 
account the following: (a) all relevantfacts as they relate to the country 
of origin at the time of taking a decision on the application, including 
laws and regulations of the country of origin and the manner in which 
they are applied...”.
9
iii. European Communities (Eligibility for Protection) Regulations 2006
S.I.No. 518 of 2006
10. Regulation 5(1) of the above Regulations provides, inter alia, as follows:
“The following matters shall be taken into account by a protection 
decision-maker for the purposes of making a protection decision: (a) 
all relevant facts as they relate to the country of origin at the time of 
taking a decision on the application for protection, including laws and 
regulations of the country of origin and the manner in which they are 
applied..."
VI
Case C-277/11 MM v. Minister for Justice, Equality and Law Reform & Ors.
[ECLI:EU:C:2012:744]
a. The Dispute and the Question Referred
11. MM is a case of some significance in the within proceedings. The facts of that case were 
as follows. Mr M was a Rwandan national of Tutsi ethnicity who applied for asylum in Ireland 
on 1st May 2008. His application was rejected on the ground that his claims relating to his 
persecution in Rwanda were not credible. The Minister’s decision refusing to grant Mr M’s 
asylum application was notified to Mr M in December 2008. Mr M then made application for 
subsidiary protection on 31st December 2008. That application was rejected by a decision of 
the Minister of 24th September 2010. In his decision, the Minister relied to a large extent on his 
earlier decision of2008. On 6th January 2011, Mr M brought proceedings before the High Court 
seeking annulment of the Minister’s decision of 24th September 2010. In those proceedings he 
disputed the legality of the rejection of his application for subsidiary protection, on the ground 
that the procedure for examining that application did not comply with European Union law.
12. Of particular interest in the context in the within proceedings was Mr M’s contention that 
the cooperation requirement laid down in the second sentence of Art.4(l) of Directive 2004/83 
meant that the Minister was obliged to supply the applicant for asylum with the results of his
10
assessment before a decision was finally made so as to enable the applicant to address those 
matters which suggested a negative result by putting forward all documents which are then 
available or any argument capable of challenging the position of the competent national 
authority and to enable him to draw the authority’s attention to any relevant matters of which 
due account has not, in the applicant’s view, been taken. The High Court (Hogan J.) doubted 
whether the arguments put forward by Mr M could be accepted, but in light of a then relatively 
recent decision of the Dutch Raad van State decided to stay the proceedings and to refer the 
following question to the Court of Justice for a preliminary ruling:
“/« a case where an applicant seeks subsidiary protection status 
following a refusal to grant refugee status and it is proposed that such 
an application should be refused, does the requirement to cooperate 
with an applicant imposed on a Member State in Article 4(1) of ...
Directive 2004/83 ... require the administrative authorities of the 
Member State in question to supply such applicant with the results of 
such an assessment before a decision is finally made so as to enable 
him or her to address those aspects of the proposed decision which 
suggest a negative result?”
b. The European Court of Justice’s Analysis
13. In the course of its judgment, the European Court of Justice observed, inter alia, as follows:
u63 As is clear from its title, Article 4 of Directive 2004/83
relates to the ‘assessment of facts and circumstances ’.
64 In actual fact, that ‘assessment ’ takes place in two separate
stages. The first stage concerns the establishment offactual 
circumstances which may constitute evidence that supports 
the application, while the second stage relates to the legal 
appraisal of that evidence, which entails deciding whether, 
in the light of the specific facts of a given case, the 
substantive conditions laid down...for the grant of 
international protection are met.
11
65 Under Article 4(1)...although it is generally for the 
applicant to submit all elements needed to substantiate the 
application, the fact remains that it is the duty of the 
Member State to cooperate with the applicant at the stage 
of determining the relevant elements of that application.
This requirement that the Member State cooperate 
therefore means, in practical terms, that if, for any reason 
whatsoever, the elements provided by an applicant for 
international protection are not complete, up to date or 
relevant, it is necessary for the Member State concerned to 
cooperate actively with the applicant, at that stage of the 
procedure, so that all the elements needed to substantiate 
the application may be assembled. A Member State may 
also be better placed than an applicant to gain access to 
certain types of documents.
Moreover, the interpretation set out in the previous 
paragraph finds support in Article 8(2) (b) of Directive 
2005/85, pursuant to which Member States are to ensure 
that precise and up-to-date information is obtained on the 
general situation prevailing in the countries of origin of 
applicants for asylum and, where necessary, in countries 
through which they have transited.
It is thus clear that Article 4(1) of Directive 2004/83 relates 
only to the first stage mentioned in paragraph 64 of this 
judgment, concerning the determination of the facts and 
circumstances qua evidence which may substantiate the 
asylum application.
12
93 It should be added that, according to the Court’s settled 
case-law, the Member States must not only interpret their 
national law in a manner consistent with EU law but also 
make sure they do not rely on an interpretation which would 
be in conflict with the fundamental rights protected by the 
EU legal order or with the other general principles of EU 
law (see Joined Cases C-411/10 and C-493/10N.S. and 
Others [2011] ECR1-13905, paragraph 77).
94 It is in the light of that guidance as to the interpretation of 
EU law that it will be for the referring court to determine 
whether the procedure followed in the examination of Mr 
M. ’s application for subsidiary protection was compatible 
with the requirements of EU law and, should itfind that Mr 
M. ’s right to be heard was infringed, to draw all the 
necessary inferences therefrom
14. Taking Mr X’s complaint as to the duty of cooperation and placing it in MM-type 
parlance, his complaint, as the court understands it, is that there was a breach of the duty of 
cooperation in what was the second sentence of Art.4(l) of Directive 2004/83 (now the second 
sentence of Art. 4(1) of the Qualification Directive (recast)), i.e. “In cooperation with the 
applicant, it is the duty ofthe Member State to assess the relevant elements of the application. ” 
The alleged breach of the duty of cooperation in the first stage of the assessment of facts and 
circumstances is that despite being confronted with a clear deficiency in the COI provided (in 
that it was neither complete nor up-to-date) and despite the absence of a SPIRASI report the 
IP AT did not, to borrow from the wording of para. 66 of the European Court of Justice’s 
judgment in MM “cooperate actively with the applicant [Mr X], at that stage of the procedure, 
so that all the elements needed to substantiate the application may be assembledAs a 
consequence, Mr X claims he has been prejudiced because the IP AT proceeded to the second 
stage of its assessment without suitable COI and without a SPIRASI report. (Mr X managed 
to supply a SPIRASI report after the appeal hearing but this meant that its substance was not 
before the IP AT at the appeal hearing and that its substance could not therefore be the subject 
of consideration at the IP AT appeal hearing, even if it was considered afterwards).
13
VII
The Substance of the Impugned Decision
15. There are a number of elements of the impugned decision that are worth touching upon 
before proceeding to mention the various legal issues raised by Mr X in the within proceedings.
Page 3
16. At paras. 1.7-1.8 of the impugned decision, the IP AT states as follows:
“Section 70(7) provides that on commencement of the 2015 Act, an 
applicant whose application has not been determined and who is not 
deemed to have made an application under section 15, as is the case 
here, shall be determined in accordance with the 1996Act and relevant 
Regulations
Section 71(3) provides that the IP AT shall decide on appeal from an 
applicant to whom section 70(7) applies in accordance with the 1996 
Act, [and] the 2006 and 2013 Regulations, as the case may be.”
17. It is perhaps worth quoting ss.70(7) and 71(1) and (3) of the Act of 2015 in full, rather than 
considering a paraphrased version of same:
“[70] (7) Where - (a) immediately before the date on which this 
subsection comes into operation, a person is an applicant within the 
meaning ofsection 1 of the Act of1996 and his or her application under 
the Act has not been determined, and (b) he or she, on that date, is not 
deemed under this section to have made an application for international 
protection under section 15, then, notwithstanding section 6- (i) the Act 
of1996, and not this Act, shall for the purpose of his or her application 
for a declaration under the Act of1996, continue to apply to him or her, 
and (ii) in the event that a notice under section 17(7) of the Act of 1996 
is sent to him or her, he or she may apply under the Regulations of 2013
14
for a subsidiary protection declaration, and the Regulations of 2006 
and the Regulations of 2013 shall apply to the application, and (Hi) in 
the event that a declaration under section 17 of the Act of1996 is given 
to him or her, the declaration shall be deemed to be a refugee 
declaration given to the person under this Act and the provisions of this 
Act shall apply accordingly.
[71] (1) With effect from the establishment day, the administration and 
business in connection with the performance of any functions of the 
former Tribunal under the Act of 1996, the Regulations of 2006, the 
Regulations of 2013, and the Dublin System Regulations are 
transferred, to the Tribunal.
[71] (3) For the purposes of subsection (1), a member of the Tribunal 
to whom is assigned an appeal made by a person to whom subsection 
(7) or (8) of section 70 applies shall decide that appeal in accordance 
with the Act of1996 and the Regulations of2006 or the Regulations of 
2013, as the case may be, and, for that purpose, perform the functions 
of a member of the former Tribunal under that Act or those 
Regulations.”
[Emphases added].
18. The Act is expressed in mandatory terms. Yet despite this, and despite expressly 
acknowledging this feature of the Act of 2015, the IP AT for some reason proceeded to consider 
the applicant’s appeal under the Act of 2015. It does not seem, however, that this has yielded 
any practical consequences (ill-effects) for Mr X. Thus counsel for Mr X, though he mentioned 
this aspect of matters, also indicated that he did not seek in this regard, if the court might be 
forgiven a metaphor, to ‘make a mountain out of a molehill’.
15
Page 5
19. Reference is made at p.5 to the fact that the applicant submitted and the IP AT had regard 
to an EASO Country of Origin Report of July 2016. In truth, this was not quite up-to-date 
documentation even when lodged by the applicant. However, by the time the IP AT decision 
came to be made in February 2019 it was considerably out-of-date. As will be seen later below, 
a significant element of the complaint that the applicant now makes concerns the 
contemporaneity of the COI relied upon by the IP AT in reaching its (impugned) decision. 
Essentially, however, the argument that is made by the applicant in this regard is that when an 
applicant submits what, not to put too fine a tooth on matters, is inadequate COI, a duty of 
cooperation arises pursuant to European Union law and that the IP AT is required to consult 
more up-to-date information at the date when the decision is made.
20. Even at this early point of the court’s judgment it is perhaps worth mentioning the decision 
of the High Court in GAA v. Minister for Justice, Equality and Law Reform & Ors. [2015] 
IEHC 519. That was a case in which the applicant’s claim for asylum had been rejected on 
grounds of credibility. Judicial review proceedings ensued in which it was claimed that there 
had been a failure to consult relevant COI in breach of Art.4 of the since repealed Council 
Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status 
of third country nationals or stateless persons as refugees or as persons who otherwise need 
international protection and the content of the protection granted,1 as transposed by reg.5(l) of 
the European Communities (Eligibility for Protection) Regulations 2006 (S.I. No. 518 of2006), 
in particular the requirement under that domestic provision for a protection decision-maker, 
when making a protection decision to take into account “(a) all relevant facts as they relate to 
the country of origin at the time oftaking a decision on the application for protection, including 
laws and regulations of the country of origin and the manner in which they are applied'. The 
judgment in GAA is notable in the context of the duty of cooperation points which the applicant 
makes in the within proceedings because of the following observation of Mac Eochaidh J. at 
para. 8 of his judgment:
1 Repealed and replaced by Directive 2011/95/EU of the European Parliament and of the Council of 13 December 
2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of 
international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for 
the content of the protection granted (recast) (O.J. L337,20.12.2011, pp.9-26).
16
“Counsel for the Applicant refers to the decision of the Court of Justice 
of the European Union in MM v. Minister for Justice, Equality and Law 
Reform (C-277/11) where comments were made as to the nature of the 
state's duty in assessing a claim and at para 65 the Court of Justice 
says:
‘65 Under article 4(1) of Directive 2004/83, although it 
is generally for the applicant to submit all elements 
needed to substantiate the application, the fact 
remains that it is the duty of the Member State to 
cooperate with the Applicant at the stage of 
determining the relevant elements of that application.
66 This requirement that the Member State cooperate 
therefore means, in practical terms, that if, for any 
reason whatsoever, the elements provided by an 
applicant for international protection are not 
complete, up to date or relevant, it is necessary for 
the Member State concerned to cooperate actively 
with the applicant, at that stage of the procedure, so 
that all the elements needed to substantiate the 
application may be assembled...”.
21. Page 5 of the IP AT appeal decision also sees the commencement of an assessment of the 
facts and circumstances by the IP AT. In this regard, an aspect of the applicant’s claim for 
asylum that seems to have bedevilled him throughout the asylum process is that when he first 
made his claim he told some lies, albeit that he admitted to those lies relatively soon after he 
first told them (in fact, at the first formal opportunity: thus, he lied in his application form and 
withdrew the lie at his initial ORAC interview). In this regard, counsel for Mr X observed at 
the hearing that “[Mr X told] a lie. There is no excuse for that, other than [that] lies are not 
uncommon where vulnerable people seek asylum/international protection and explanations 
for those lies have to be considered and it has to be weighed up... what import should be put 
on those explanations.” The court notes that an attack on the IPAT’s findings as to credibility 
does not form a core element of the within application, though it is perhaps worthwhile for 
the court to note in any event that:
17
- the fact that one or more lies are told by an international 
protection applicant does not necessarily mean that s/he is not 
telling the truth about the facts on which the well-founded fear of 
being persecuted is based.
- the nature and context of a lie are relevant to its weight.
- even if the entire account of an applicant for a declaration of 
refugee status is dismissed as artifice, it does not necessarily 
follow that the individual is not a refugee; other evidence, 
independent of the applicant, including COI, may establish that 
s/he is at risk of being persecuted for a Convention reason; in 
which case protection must follow.
- it is a truism that an applicant’s case must be determined on the 
basis of what facts are found to present, not on the basis of 
whatever evidence was rejected.
22. Here, the applicant’s basic complaint (minus the withdrawn untrue element) is that he 
was in the vicinity of a terrorist bomb blast at a funeral in Pakistan that yielded multiple 
casualties and that this experience has seriously affected him and continues to affected him in 
that to this day he appears to suffer from some form of related mental illness 
(depression/anxiety/disturbed sleep). It seems, on his account, that the event has quite literally 
‘terrorised’ him, an experience that points to the intense wickedness that not only informs but 
also follows every act of terrorism. A medical report of 3 September 2018 that went before 
the IP AT points to the difficulties that Mr X has suffered, refers to related prescriptions made 
and indicates that a reference to counselling has also been made. There was some suggestion 
at the hearing by counsel for the IP AT that it was not clear that this opportunity for counselling 
was in fact taken up; however the IPAT’s appeal decision at para. 5.36 indicates Mr X to have 
stated that it was, and the IP AT itself appears to have taken no issue with this assertion.
Page 15
18
23. Under the heading “The Appellant’s Mental Health Difficulties", the IP AT states, inter 
alia, as follows:
“[5.35] The Appellant has furnished a medical report from Dr 
[Y]... dated 21st February 2018 which states that the Appellant is 
prescribed certain medications for ‘a mixture between depression and 
anxiety and also help with a disturbed sleep pattern ’. The Presenting 
Officer submitted in closing arguments that a mental health report 
cannot say if the condition was caused by a bomb blast or not.
[5.36] The Appellant confirmed to the Tribunal that has been going to 
counselling for the past two years and that the doctor recommended 
him for SPIRASI but there were long delays.... The Tribunal accepts the 
Presenting Officer’s assessment that a Mental Health Report cannot 
say if the diagnosed condition was caused by a bomb blast or not. A 
SPIRASI report may well have been of more assistance in this regard."
24. It would be fair to say that the applicant considers the last-quoted sentence in the above- 
quoted text to be of some importance, the IP AT member essentially saying at this point that 
‘If I had something else (a SPIRASI report) that “may well have been of more assistance'".
Pages 15-16
25. The court notes in passing the conclusions reached by the IP AT at para. 5.3 9 of the 
impugned decision where it observes, inter alia, as follows:
“[T]he only material elements of the Applicant’s claim which are 
credible on the balance ofprobabilities are as follows:
• The Appellant is a [Stated 
Age]...Pakistani national. He is Muslim 
and is of Pathan (Pashtun) ethnicity.
19
• The Applicant applied for a student visa 
in the UK in 2011.
• The Appellant remained in the UK from 
2011 to 2015 before travelling to Ireland 
in June 2015. The Appellant did not claim 
asylum in the UK.
• The Appellant made an application for 
asylum in Ireland on the 2nd July 2015."
26. These are limited but important findings. Given the uncomfortable position which 
Pashtun (Pathan) people have sometimes endured in Pakistan, it is perhaps surprising that the 
IP AT decision contains no further consideration of Mr X’s ethnicity, nor is it referenced when 
the COI is considered, though this omission, counsel for Mr X indicated at the hearing was 
unot a core point” of the within application.
Page 17
27. In considering whether the persecution feared by the applicant should he be returned to 
his country of nationality was well-founded, the IP AT refers in this regard to s.7 of the Act of 
2015 when, by its own (correct) reckoning, as mentioned previously above, the application 
fell to be decided under the previous statutory regime.
Page 18
28. Under the heading “Objective Basis”, the IP AT observes as follows:
“Considering the appellant’s experiences which have been accepted 
and the COI relevant to the analysis as set out above the Tribunal finds 
that there is no reasonable chance that if he were to be returned to 
Pakistan, he would have a well-founded fear of persecution.”
29. Notably, the reader (and, more notably, Mr X) is not really told what this COI is. As a 
consequence it is not clear whether the consideration of COI in this regard has been confined
20
to the consideration of the 2016 COI documentation that was provided by Mr X or whether 
the IP AT member has consulted other COI in this regard, the consultation of which other COI 
in this regard is not disclosed. The words “as set out above” suggest that the documentation 
of 2016 and perhaps certain other COI of 2017 that is referenced in the IP AT decision have 
been considered in this regard, none of which COI documentation was up-to-date at the time 
of the decision in February 2019.
Pages 19-23
30. Moving on to the question of subsidiary protection, the IP AT, under the heading “Analysis 
of Serious Harm” observes, inter alia, as follows:
“[9.1] Having determined which material facts of the appellant’s 
claim are accepted...the Tribunal will now proceed to 
analyse whether those facts provide a basis for a finding that 
the appellant would face, if returned to Pakistan, a real risk 
of serious harm.
[9.2] Serious harm is defined in Article 15 of Council Directive 
2004/83/EC of 29 April 2004 on minimum standards for the 
qualification and status of third country nationals or 
stateless persons as refugees or as persons who otherwise 
need international protection and the content of the 
protection granted hereinafter referred to as the 
‘Qualification Directive ) as implemented into Irish law by 
section 2(1) of the International Protection Act 2015) as “(a) 
death penalty or execution, (b) torture or inhuman or 
degrading treatment or punishment of a person in his or her 
country of origin, or (c) serious and individual threat to a 
civilian’s life or person by reason of indiscriminate violence 
in a situation of international or internal armed conflict.”
21
31. It is by reference to the above-quoted definition of “serious harm” in s.2(l) of the Act of 
2015 that Mr X discerns the principal difficulty that he perceives to present in the impugned 
decision.
32. The IP AT continues, inter alia, as follows:
“[9.3] Considering the appellant’s experiences which have been 
accepted and the country of origin information relevant to the analysis
rCourtNote: Again Mr X is not told exactly what COI is being referred 
to in this regard but if it is to the 2016/2017 COI that the court has 
mentioned above then it is not COI that was up-to-date when the IP AT 
came to make its decision.],
the Tribunal find that there are no substantial grounds for believing 
that if he were to be returned to Pakistan, the appellant would face a 
real risk of suffering for the reasons which follow:
[9.4] (a) Death Penalty or execution [No real risk found: finding 
undisputed]....
[9.5] (b) Torture or inhuman or degrading treatment or punishment...
[No real risk found: finding undisputed]....
[9.6] (c) It is necessary to assess whether there are sufficient reasons to 
believe that the appellant would face a real risk of serious and 
individual threat to life or person by reason of indiscriminate violence 
in situations of international or internal armed conflict if he returned 
to Pakistan.
fCourt Note: It is ‘real risk’ that is being looked for. The issue is not 
whether Mr X will be killed or injured if he goes back to Pakistan but 
rather whether, if returned to Pakistan, there is a real risk of serious and 
individual threat to his life or person by reason of indiscriminate
22
violence in a situation of international or internal armed conflict. It is 
this last issue with which the third ground for subsidiary protection, as 
identified in Art. 15 of the Qualification Directive (original and recast) 
is concerned.]
I. Is there a situation of armed conflict?
It is accepted that the situation in Pakistan amounts to a situation of 
indiscriminate violence within an international/internal armed conflict.
fCourt Note: This, it seems to the court, is a pivotal finding within the 
IPAT’s decision and one that is not properly treated with at any point 
in the IP AT decision.]
The appellant is from the Malakand Agency district of Khyber 
Pakhtunkhwa region which is situated in the north of Pakistan and 
borders Afghanistan in the west and the FATA in the north. Several 
sources interviewed during an Austrian Fact-Finding Mission in July 
2015
rCourt Note: The court pauses at this point to note that this reference to 
a 2015 Fact Finding Mission is made in an IP AT decision that was 
rendered in February 2019.]
stated that Khyber Pakhtunkhwa is “remotely peaceful but remains 
quite vulnerable as it shares its border with the FATA, which has been 
the scene of large-scale operations by the Pakistani armed forces to 
eradicate militant activity” (see EASO Country of Origin Report 
Pakistan Security Situation July 2016). No mention is made of 
Malakand Agency as being an area that is particularly a target of 
violence.
rCourt Note: As can be seen the last sentence is not quite correct when 
one reads what has gone before and, indeed, what comes afterwards.]
23
UNHCR Refworld Fredeom in the World 2017 Pakistan report states 
that “Terrorist violence declined sharply, in large part due to a de- 
escalation of an insurgency in the Federally Administered Tribal Areas 
(FATA)”.
fCourt Note: The court notes that the said Report could not properly be 
said to be up-to-date COI in the context of an IP AT decision that was 
rendered in February 2019.]
Because of this reduction in deaths among the civilian population and 
the location of the applicant’s residence the Tribunal finds that the 
violence in this region does not reach such a high level as to engage 
this application of the section.
(Court Note: The court notes the use of the word “deaths” in the just- 
quoted text. This wording seems to the court to be significant because 
the decision seems to be calibrating whether Mr X is faced with a real 
risk of suffering serious harm, if returned to Pakistan, by reference to 
the number of deaths recorded in what, at the time of the IP AT decision, 
was quite old COI. Fatality figures are mortality figures not, save as 
regards fatal injuries (which are qualitatively different to non-fatal 
injuries), non-fatal injury figures.]
III. Is the threat of indiscriminate violence serious and individual?
Considering the appellant’s experiences which have been accepted and 
the country of origin information relevant to the analysis, the Tribunal 
finds that there are no substantial grounds for believing that if he were 
to be returned to Pakistan, the appellant would face a real risk of 
suffering serious harm in the form of a serious and individual threat to 
a civilian’s life or person by reason of indiscriminate violence in a 
situation of international or internal armed conflict. EASO Country of
24
Origin Information Report, Pakistan Security Situation, August 2017 
states as follows:
“2.2.1 Khyber Pakhtunkhwa
As shown in Table 3, Khyber Pakhtunkhwa saw 325 terrorist attacks in 
2014, compared to 499 in 2013. TTP or associated groups carried out 
308 of the 325 terrorist attacks, while 17 attacks were sectarian and 
mostly perpetrated by TTP and Lashkar-e-Jhangvi, Peshawar was the 
most affected part of the province, just like in 2013. These terrorist 
attacks targeted civilians, security forces, educational institutions (such 
as the Peshawar army school), health workers, the Shia religious 
community, political leaders/workers, tribesmen [the applicant is a 
Pashtun tribesman], power installations, government officials and 
buildings, Sikh community, places of worship, CD shops, etc. 
Charsadda was the second most targeted area of KP, followed by Bannu 
(494)”.
The Report goes on to say:
“Estimates for fatalities from violent attacks show a downward trend 
compared with 2013....The level of violence declined from March 
2014, until the devastating attack on the Army Public School in 
Peshawar on 16 December 2014....The deadliest incident occurred on 
13 February when a suicide squad attacked a Shia mosque in Peshawar, 
killing 22 worshippers (499).
UNHCR Refworld Freedom in the World 2017 Pakistan report states 
that “Terrorist violence declined sharply, in large part due to a de- 
escalation of an insurgency in the Federally Administered Tribal Areas 
(FATA)”.
25
rCourt Note: Again the court notes the reliance by the IP AT on a 2017 
report (which in fact only deals with the first quarter of 2017) in an 
IP AT decision that was decided in February 2019.]
According to the South Asia Terrorism Portal (SATP) during the year 
there were 1,720 fatalities from terrorism, compared with 3,682 
fatalities in 2015. Terror-related fatalities have been declining in the 
country since 2009, when fatalities totalled 11,704 (Bureau of 
Democracy, Human Rights and Labor, Country Reports on Human 
Rights Practices for 2016, Pakistan).
The EASO Country of Origin Information Report Pakistan Security 
Situation, August 2017 indicates according to data in the first quarter 
analysis report of 2017 conducted by CRSS, 148 fatalities ...were 
counted, a decline of almost 40% compared to the first quarter of 2016. 
Most fatalities in the first quarter occurred in March 2017. Almost half 
of the fatalities were civilians. In the first five months of 2017, 68 
fatalities, mostly militants, were counted by SATP. An almost 50% 
decrease in the number of fatalities is observed, compared to the first 
five months of 2016 (115 fatalities).
The number of civilian casualties needs to be considered in the overall 
context of the population of the Malakand region which is in excess of 
7.5 million and the Khyber Pakhtunkhwa province which is in excess of 
30 million. The Tribunal accepts that there is violence in KPK but does 
not accept that the indiscriminate violence to which the appellant may 
be exposed if he was to return to Pakistan would result in a serious and 
individual threat to his life or person.
rCourt Note: In this last paragraph, it is contended that the IP AT is 
answering the wrong question, the question that falls to be answered, 
pursuant to the third limb of Art. 15 of the Qualification Directive 
(original and recast), being ‘Would Mr X face a real risk of serious and 
individual threat to his life or person by reason of indiscriminate
26
violence in a situation of international or internal armed conflict if 
returned to Pakistan?’ Here, even if this question were addressed it 
would, of course, have been addressed on aged COI.]
[9.7] In so finding, the Tribunal has considered country of origin 
information as above.”
VIII
The Statement of Opposition
33. Some complaint was made by counsel for Mr X as to the form of the statement of 
opposition in the within proceedings, which comprises to a very large extent a general traverse 
of the applicant’s claim. (The first paragraph in the statement of opposition also puts the 
applicant on full proof, inter alia, of all the facts as stated in the statement of grounds, a 
somewhat unusual ground of opposition when the facts recited are largely facts that were found 
by the IP AT in its (impugned) decision to be the facts presenting). The court would but gently 
note in this regard:
(i) the requirements of 0.84, r.22(4) and (5) of the Rules of the 
Superior Courts (“RSC”) whereby,
“(4) Any respondent who intends to oppose the 
application for judicial review by way ofmotion 
on notice shall within three weeks of service of 
the notice on the respondent concerned or such 
other period as the Court may direct file in the 
Central Office a statement setting out the 
grounds for such opposition and, if any facts 
are relied on therein, an affidavit ...verifying 
such facts, and serve a copy of that statement 
and affidavit (if any) on all parties. The 
statement shall include the name and registered
27
place of business of the respondent’s solicitor 
(if any).
(5) It shall not be sufficient for a respondent in his 
statement of opposition to deny generally the 
grounds alleged by the statement grounding the 
application, but the respondent should state 
precisely each ground of opposition, giving 
particulars where appropriate, identify in 
respect of each such ground the facts or matters 
relied upon as supporting that ground, and deal 
specifically with each fact or matter relied upon 
in the statement grounding the application of 
which he does not admit the truth (except 
damages, where claimed/’,
those rules being intended to ensure, so far as possible, that everyone 
gets off to an equal start and that proceedings progress as fairly and 
efficiently as possible, and also
(ii) the following general propositions applicable to judicial review 
proceedings, which were among those identified by the court when 
treating with the duty of candour in its judgment in Murtagh v. Judge 
Kilrane [2017] IEHC 384, at para.25 (though, for the avoidance of 
doubt, the court notes that it is not alleged that there has been, nor does 
the court see that there has been, any breach of the said duty in the 
within proceedings):
“(4) The object of a public body in judicial review 
proceedings is not to win litigation at all 
costs... ([AHK & Ors. v. The Secretary for the 
Home Department [2012] EWHC 1117] 
(2015)).
28
(5) Proceedings for judicial review should not be 
conducted in the same manner as hard-fought 
commercial litigation.... ([Belize Alliance of 
Conservation Non-Governmental
Organisations v. Department of the 
Environment of Belize & Anor. [2004] UKPC 
6; [2003] 1 WLR2839]).”
34. In passing, the court notes that there was suggestion on the part of the IP AT that an alleged 
failure on its part to comply in one respect with 0.84, r.22 RSC arose because of a conflict 
between that Order and Practice Direction HC81. It is unfortunate if there is an element of that 
Practice Direction that diverges from 0.84 and if there is such a divergence and if counsel elects 
to communicate in writing the nature of that perceived divergence to the court, the court will 
ensure that communication is drawn to the attention of the President. However, it is perhaps 
useful for the court to note in this regard that Practice Directions but complement the Rules of 
the Superior Courts: they point to expected practice but have no legislative force and cannot be 
used as an aid to the construction of the Rules. To borrow from the wording of Lord Denning 
in the long-ago case of J & J Colman Ltd. v. Commissioners of Customs and Excise [1968] 1 
WLR 1286, at p. 1291 (albeit in a somewhat different context), a practice direction 
“cannot...make the law or alter it”.2 The Rules of the Superior Courts, by contrast, are
2 That was a case involving Colmans, the renowned mustard- and sauce-makers. As ever, the key facts are 
succinctly identified, at pp. 1289-90 of his judgment, by Lord Denning MR, then at the height of his powers, in a 
manner that cannot be improved upon:
“Colmans are the well-known makers of mustard. They get their mustard seed from 
Canada. This has the great advantage that, coming from Canada, it qualifies for 
Commonwealth preference: so that Colmans pay less customs duty on it. Up till the 
end of1962 all went well. The mustard seed was grown in Canada. It was sold by the 
Canadian growers to Colmans and shipped direct by ocean-going vessel from 
Vancouver in British Columbia to London, whence it was shipped by coaster to 
Norwich. Clearly it qualified for Commonwealth preference. But early in 1963 most 
of the ships were busily engaged in carrying grain from Canada and had no room for 
mustard seed: with the result that Colmans could not arrange for direct shipment of 
their mustard seed from Vancouver to England. So they arranged for it to come via 
Rotterdam or Antwerp. It was taken by ocean-going vessel from Vancouver to 
Rotterdam or Antwerp. Then it was trans-shipped into a coaster for transport to 
England. The question is whether on the parcels so trans-shipped Colmans are still 
entitled to Commonwealth preference. The relevant section is section 2 (2) of 
the Import Duties Act, 1958, which says that ‘The goods qualifying for 
Commonwealth preference shall be any goods grown, produced or manufactured in 
the Commonwealth preference area which are consigned to the United Kingdom from 
a place in that area. ’ The mustard seed was undoubtedly grown in the Commonwealth
29
embodied in secondary legislation and in any conflict, perceived or actual, between the Rules 
and a Practice Direction, it is the Rules that will and do invariably win out and apply.
IX
Four Questions Presenting
35. Four key questions present in the within proceedings:
1. Should an order of certiorari be granted on the basis of a 
failure by the IP AT to consider up-to-date country of origin 
information?
2. Should an order of certiorari be granted on the basis of the 
delays encountered in the assessment of Mr X’s claim?
3. Should an order of certiorari be granted on the basis of a 
failure by the IP AT to obtain other evidence, e.g., a 
SPIRASI report?
4. Should an order of certiorari be granted on the basis that 
Mr X was wrongly denied the benefit of the doubt by IP AT?
preference area. So there is no difficulty on that score. The only question is whether 
it was “consigned to the United Kingdom " from Canada. ”
The case focused in part on a notice that HM Customs & Excise had issued to importers in May 1963 as to the 
conditions under which ‘Commonwealth preference’ would be given (and which, in effect imposed more stringent 
evidentiary requirements on persons seeking to pay the lower customs duty applicable in ‘Commonwealth 
preference’ cases). In the High Court the future Lord Roskill held that Colmans were entitled to the 
‘Commonwealth preference’ and this was upheld by an impressive appellate bench that comprised Lord Denning 
MR and the then Lords Justices (and future Lords of Appeal in Ordinaiy) Salmon and Edmund Davies, the 
essential thrust of the Court of Appeal’s decision being that as the mustard seeds were delivered to a carrier in 
Canada with the intention of continuous transit to England without being taken into the commerce of another 
country, which intention had been realised, the seed had been consigned to the United Kingdom from Canada in 
the manner contemplated by s.2(2) of the Act of 1958 and qualified for Commonwealth preference. It was in this 
context that Lord Denning observed in his judgment, at p. 1291, that “[Although the new notice was not satisfied, 
I think the parcels qualify for Commonwealth preference. The customs authorities cannot, by these notices, make 
the law or alter it."
30
36. The court turns to each of these questions hereafter, though again it defers reaching any 
conclusions as to same pending any preliminary ruling from the European Court of Justice.
X
Question 1
37. The question posed is ‘Should an order of certiorari be granted on the basis of a failure 
by the IP AT to consider up-to-date country of origin information?’
i. Applicable Law
38. The court has already quoted the detail of Article 8(2) of the old Procedures Directive, 
Regulation 5(1) of the European Communities (Eligibility for Protection) Regulations 2006, 
s.28(4) of the International Protection Act 2015 and Article 4(1) of the Qualification Directive.
39. It will be recalled that Article 8(2) of the old Procedures Directive provides, inter alia, that 
“Member States shall ensure that: (a) applications are examined and decisions are taken 
individually, objectively and impartially; (b) precise and up-to-date information is obtained 
from various sources...as to the general situation prevailing in the countries of origin of 
applicants for asylum...and that such information is made available to the personnel 
responsible for examining applications and taking decisions”. (Like provision is made in 
Art.l0(3) of the current Asylum Procedures Directive). Regulation 5(1) of the Regulations of 
2006 (as now echoed in s.28(4) of the Act of 2015) provides that “The following matters shall 
be taken into account by a protection decision-maker for the purposes of making a protection 
decision: (a) all relevant facts as they relate to the country of origin at the time of taking a 
decision on the application for protection”. The court has repeatedly pointed above to how the 
IP AT in this case relied on COI that was out-of-date at the time when it made the impugned 
decision.
40. Art.4(l) of the Qualification Directive (original and recast) refers to how “/« cooperation 
with the applicant, it is the duty of the Member State to assess the relevant elements of the 
application.” When it comes to this issue the court respectfully refers the reader to its 
consideration previously above of the decision of European Court of Justice in (Case C-277/11)
31
MMv. Minister for Justice, Equality and Law Reform [ECLI:EU:C:2012:744] (as referenced 
in GAA v. Minister for Justice, Equality and Law Reform [2015] IEHC 519, at para.8).
41. Again, taking Mr X’s complaint as to the duty of cooperation and placing it in MM-type 
parlance, his complaint, as the court understands it, is that there was a breach of the duty of 
cooperation in what was the second sentence of Art.4(l) of Directive 2004/83 (now the second 
sentence of Art. 4(1) of the Qualification Directive (recast)), i.e. “In cooperation with the 
applicant, it is the duty of the Member State to assess the relevant elements of the application.” 
The alleged breach of the duty of cooperation in the first stage of the assessment of facts and 
circumstances is that despite being confronted with a clear deficiency in the COI provided (in 
that it was neither complete nor up-to-date) and despite the absence of a SPIRASI report the 
IP AT did not, to borrow from the wording of para. 66 of the European Court of Justice’s 
judgment in MM “cooperate actively with the applicant [Mr X], at that stage of the procedure, 
so that all the elements needed to substantiate the application may be assembled
42. As a consequence of the foregoing, Mr X claims he has been prejudiced because the IP AT 
proceeded to the second stage of its assessment without suitable COI and without a SPIRASI 
report. (Mr X managed to supply a SPIRASI report after the appeal hearing and it was then 
considered by the IP AT; however, this meant that its substance was not before the IP AT at the 
appeal hearing and that its substance could not therefore be the subject of consideration at the 
IP AT appeal hearing). It is not clear to the court that as a matter of European Union law it is in 
fact necessary for Mr X to establish prejudice consequential upon a breach by IP AT of the duty 
of cooperation: the IP AT is subject to this duty as a matter of European Union law and has acted 
in breach of that duty and it seems to the court that it is by reference to that breach that, as a 
matter of European law, it falls now to the court to consider whether to grant any of reliefs now 
sought. It seems to the court, as a matter of logic, that if Mr X can show prejudice arising from 
the breach that has occurred that must surely strengthen his application as regards obtaining any 
of the reliefs sought. However, the court does not see that, as a matter of European Union law 
establishing such prejudice is a pre-requisite to obtaining relief. Yet the court is aware of 
binding Irish precedent concerning the need for prejudice to present in this context, most 
notably perhaps the judgment of Mac Eochaidh J. in LHC (a minor) v. Refugee Appeals 
Tribunal and Ors. [2014] IEHC 75, wherein it was held (at para. 11), inter alia, that:
32
“ Where it is alleged in judicial review proceedings that an asylum 
applicant has been unfairly denied the opportunity to submit evidence 
(whether by reason of refusal of an adjournment or by some other 
decision) it seems to me that the applicant must describe the substance 
of the excluded evidence and in addition must describe the prejudice 
caused by its exclusion. These essential elements are absent from the 
applicant’s proceedings
43. Again, the court respectfully does not see that such a requirement to establish prejudice is 
a feature of the duty of cooperation that presents under European Union law. The court is 
satisfied as a matter of logic that any claim for relief on grounds of a breach of the duty must 
surely be strengthened by the presence of such prejudice. However, it seems to the court that, 
in the face of the just-mentioned precedent, a reference to the European Court of Justice on the 
precise ambit and effect of the duty of cooperation is necessary before the court can give 
judgment as regards the consequences of the alleged breach of the duty of cooperation 
presenting and the claimed prejudice arising therefrom (to the extent that such prejudice is 
relevant, if it is relevant, as a matter of European Union law). The court will hear the parties 
further on the proposed preliminary reference.
ii. Some Irish Case-Law on COI
a. G.O.
44. The IP AT has pointed the court to a couple of cases in which it was held that there is no 
obligation on a decisionmaker to consider COI in respect of an applicant’s claim, in particular 
the judgments of the High Court in G.O. v. Minister for Justice & Ors. [2015] IEHC 645 and 
GAA.
45. By way of initial remark, the court notes the contention of counsel for Mr X that credibility 
is not relevant to subsidiary protection. The court respectfully does not agree with this 
contention. Credibility can be a factor in the subsidiary protection limb of an international 
protection application, though, that said, credibility assessment is only part of evidence 
assessment. Even when (aspects of) the statements of an applicant relating to material facts are 
not credible, it is possible for her/his application for international protection nonetheless to
33
succeed. Thus, an applicant may qualify for refugee (or subsidiary protection) status, e.g., on 
the basis of a medical report, notwithstanding a lack of credibility in some/all aspects of the 
applicant’s statements. Applicants may also be eligible for international protection solely by 
virtue of the fact that it is established that they are, for instance, nationals of a particular country 
experiencing exceptionally high levels of armed conflict or in which all members of a particular 
ethnic group/tribe/clan face persecution or serious harm. Such facts can also be supported by 
other evidence. It follows that credibility assessment is not a goal in itself, but a tool for 
determining eligibility for refugee status or subsidiary protection status.
46. In G. O. the applicant was a Nigerian national who made a failed application for asylum. In 
his ensuing judicial review proceedings, he claimed that “there was a failure [in his case] to 
consult country of origin information in this case” (para. 13) and that “there is a legal obligation 
on the part of a decision maker [in all cases] to consult relevant general and/or specific country 
of origin information in every single application for refugee status’ '’ (para. 14). Here, what is 
claimed by Mr X is that there was no consideration of up-to-date COI in the context of a 
subsidiary protection claim. The portion of Mac Eochaidh J’s judgment to which the 
respondents have drawn the court’s especial attention appears in para. 14, where Mac Eochaidh 
J. observes, inter alia, as follows:
“The applicant goes further and says that there is a legal obligation on 
the part of a decision maker to consult relevant general and/or specific 
country of origin information in every single application for refugee 
status. He basis this claim on para 5(1) of the European Communities 
(Eligibility for Protection) Regulations 2006 (S.I. No. 518 of2006) and 
article 8 of Council Directive 2005/85/E.C. of 1 December, 2005 on 
minimum standards on procedures in Member States for granting and 
withdrawing refugee status O.J. L 326/13 13.12.2005 (‘The Procedures 
Directive ) and paras. 66 and 67 of the decision of the Court of Justice 
in M.M. v. Minster for Justice Equality and Law Reform, Ireland and 
Attorney General (Case C-277/11). The applicant has failed to establish 
that there is a rule of law that country of origin information must be 
consulted in every single case. In my view the rule of law, as expressed 
by Peart J. in the decision of this court in Imafu v. Refugee Appeals 
Tribunal [2005] I.E.H.C. 416, is that in cases where the credibility of
34
the applicant is fundamentally rejected the claim presented and rejected 
does not then have to be checked against country of origin information.
No rule exists that there is an obligation on the part of a decision
maker to consult relevant seneral and/or specific country of orisin
information in every single avvlication for refugee status and
therefore I reject the complaint of the applicant that there was a
breach of such rule. Even if I am wrong about this, even if there is a 
rule that country of origin information must be consulted, my view is 
that country of origin information relevant to the facts of this case was 
indeed consulted with respect to the general conditions in Nigeria, with 
respect to the particular circumstances in the place where the applicant 
came from in Nigeria, with respect to population numbers and such 
matters
[Emphasis added]
47. Whether the emphasised segment of text was true when stated the court does not know. 
But a legal requirement for Member States to obtain and take into account COI in the 
assessment of an application for international protection has, it seems to the court, long been 
enshrined in secondary European Union law. Today, such obligation appears to the court to 
flow from the wording of Art.4(3)(a) of the Qualification Directive (recast) - a mandatory 
provision. COI, the court notes, is also referred to in other provisions of the Qualification 
Directive (recast), e.g., the third condition triggering the alleviated evidentiary requirement 
under Art.4(5) is met when “the applicant’s statements are found to be coherent and plausible 
and do not run counter to available specific and general information relevant to the applicant’s 
case”. Article 8(2) of the Asylum Procedures Directive (recast)3 sets out the COI standards 
applicable in the context of assessing the possibility of an internal protection alternative. It also 
seems possible to the court to infer from Art.l0(3)(a) of the Asylum Procedures Directive 
(recast) that decision-makers are obliged to assess COI objectively and impartially. 
Additionally, reliance on partial, unbalanced, out-of-date and/or inaccurate sources, it seems to 
the court, would constitute a significant obstacle to the achievement of the goals set out in 
Article 10(3)(a) of the Qualification Directive (recast). Thus, while the IP AT has pointed to the
3 I.e. Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common 
procedures for granting and withdrawing international protection (recast) (O.J. LI80, 29.6.2013, pp.60-95).
35
judgment in G.O. as a basis for not considering COI, it seems to the court that there has been 
for some time a wealth of clear European law provisions which point and pertain to there being 
a legal obligation to consider COI, provisions which find at least partial echo in such domestic 
law measures as s.28(4) of the Act of 2015 (and before that, reg.5(l) of the European 
Communities (Eligibility for Protection) Regulations 2006).
48. Be all the foregoing as it may, it seems to the court that it is important not to become side­
tracked by the decision in G. O. This is because, unlike G. O., where the applicant claimed that 
COI had not been considered, here the claim is that such COI as was considered was out-of- 
date. G. O. has nothing to say to such a scenario because Mac Eochaidh J. was not confronted 
with such a scenario.
b. G.A.A
49. Turning next to G.A.A, the facts of that case, so far as relevant to the within proceedings, 
are outlined, again by Mac Eochaidh J., in the following terms:
VI In these proceedings the applicant challenges a decision of 
the Refugee Applications Commissioner of 14th December,
2010. The applicant made a claim for asylum based upon 
her involvement with the Union of Forces of Change (the 
UFC) in Togo and she said that on two occasions in 
February 2005 and in April 2010, she was arrested and 
suffered physical mistreatment at the hands of state forces.
She also says that following a speech made by one Patrick 
Lawson she decided that she would leave Togo and come to 
Ireland.
[2] Her claim for asylum was rejected on credibility grounds
and these are set out in the decision.
36
[6] Country of origin information in relation to the situation in 
Togo following May 2010 was put to her and she made a 
comment thereon.
[7] The legal criticism made of this decision is that there is a 
failure to consult country of origin information and that this 
is a requirement of Irish and European law and that this 
failure constitutes an error as to jurisdiction such as to 
warrant intervention at this stage rather than an appeal to 
the Refugee Appeals Tribunal. The authority for the 
proposition that country of origin information must be 
assessed by the decision-maker is said to be found at art 4 
of Council Directive 2004/83 EC., as transposed into Irish 
law by art 5.1 of Statutory Instrument no 518 of2006 which 
says the following matters shall be taken into account by a 
protection decision-maker for the purposes of making a 
decision “all relevant facts as they relate to the country of 
origin at the time of taking a decision on the application for 
protection, including laws and regulations of the country of 
origin and the manner in which they are applied”.
[8] Counsel for the Applicant refers to the decision of the Court 
of Justice of the European Union in MM v. Minister for 
Justice, Equality and Law Reform (C-277/11) where [as in 
the within proceedings] comments were made as to the 
nature of the state's duty in assessing a claim”.
50. The segments of the judgment of Mac Eochaidh J. in G.A.A to which the court has been 
referred in this regard are the following:
7io1 The extent of the duty to refer to country of origin
information is one which has been commented upon by the 
Superior Courts in Ireland and in particular in the decision 
of the court in Imafu v. Minister for Justice, Equality and
37
Law Reform [2005j IEHC 416 where Peart J. says as 
follows:-
‘The applicant refers to the judgment of Finlay Geoghegan 
J in Kramarenko v. Minister for Justice, Equality and Law 
Reform, unreported, 2 April 2004, in which she approved 
the decision of Mr David Pannick QC (sitting as a deputy 
judge of the High Court) in R v. Immigration Appeal 
Tribunal, ex parte Ahmed [1999] INLR 473. As noted by 
Clarke J in his judgment allowing leave herein, both of 
these cases adopted the finding of His Honour Judge Pearl 
in Horvath v. Secretary of State for the Home 
Department [1999] INLR 7 to the following effect:
‘It is our view that credibility findings can only 
really be made on the basis of a complete 
understanding of the entire picture. It is our 
view that one cannot assess a claim without 
placing that claim into the context of the 
background information of the country of origin 
information. In other words, the probative value 
of the evidence must be evaluated in the light of 
what is known about the conditions in the 
claimant's country of origin.”
[U] Peart J. goes on to say:-
‘I have no doubt that this is a correct and appropriate 
statement of principle. But one cannot at the same 
time that it is applicable or appropriate as an absolute 
standard in all cases, without exception, Cases differ, 
as do reasons for a finding of lack of credibility.’ (sic)
38
[12] My view is that no provision of Irish law and no provision 
of European Union law require that there be an assessment 
of country of origin information in every case. That is not 
what European Union law requires. What European Union 
law requires is that all relevant facts as they relate to the 
country of origin at the time of taking a decision on the 
application for protection be assessed."
51. In G.O., Mac Eochaidh J. states the proposition that ‘Wo rule exists that there is an 
obligation on the part of a decision maker to consult relevant general and/or specific country 
of origin information in every single application for refugee status”, but immediately follows 
that up with the statement that “Even if I am wrong about this, even ifthere is a rule that country 
of origin information must be consulted, my view is that country of origin information relevant 
to the facts of this case was indeed consulted...". The second of the just-quoted statements 
would seem to make an obiter and hence non-binding observation of the first. However, this 
Court is confronted with an observation that is not so qualified, that is grounded in precedent 
and which is binding on this Court.
52. As explained in the observations that follow on the court’s consideration of G.O. above, it 
seems to the court that there has now long been a wealth of clear European law provisions 
which point and pertain to there being a legal obligation to consider COI, provisions which find 
echo in such domestic law measures as s.28(4) of the Act of 2015 (and before that, reg.5(l) of 
the European Communities (Eligibility for Protection) Regulations 2006). It seems also to the 
court that an obligation to take COI into account in the assessment of an application for 
international protection flows directly from the wording of Art.4(3)(a) of the Qualification 
Directive (recast), a mandatory provision. (For other Common European Asylum System 
norms/requirements relating to the use of COI, see, e.g., in addition to the just-mentioned 
provisions, Arts. 4(5) and 8(2) of the Qualification Directive (recast) and Arts. 8(2), 10(3)(b), 
10(4), 37(3), 45(2)(a), 46(3) of the Asylum Procedures Directive (recast)). It is possible too, it 
seems to the court, to infer from Art.l0(3)(a) of the Asylum Procedures Directive (recast) that 
decision-makers are obliged to assess COI objectively and impartially. And, it seems to the 
court, reliance on partial, imbalanced, out-of-date and/or inaccurate sources would constitute a 
major obstacle to the achievement of the goals set forth in Article 10(3)(a) of the Qualification
39
Directive (recast). Yet given the binding nature of the observation in G.A.A, at para. 12, 
grounded in precedent, inter alia, that
“[N]o provision of Irish law and no provision of European Union law 
require that there be an assessment of country of origin information in 
every case. That is not what European Union law requires. What 
European Union law requires is that all relevant facts as they relate to 
the country of origin at the time of taking a decision on the application 
for protection be assessed’,
and given too that the IP AT seeks to place the firmest reliance on the express terms of G. O. and 
G.A.A., it seems to the court to be necessary that the correct position as a matter of European 
law ought to be ascertained by way of preliminary ruling from the European Court of Justice. 
The court will hear the parties further as to the proposed preliminary ruling.
iii. Up-to-Date Information
a. Overview
53. In the impugned decision, taken on 7th February 2019, the IP AT states that it had regard to 
an Austrian Fact-Finding Mission of July 2015 (para.9.6), an EASO Country of Origin Report 
on Pakistan of July 2016 (see e.g. para.9.2) and of August 2017 (para.9.6), and the UNHCR’s 
2017 Pakistan Report (para.9.6). Mr X maintains that he was prejudiced in that the said 
information predominantly relates to 2016 and even the EASO Report of August 2017 only 
relates to the first five months of 2017. Additionally, he notes, the information that was 
considered was only considered insofar as it pointed to a ‘reduction in fatalities during the 
periods to which that information related’ and did not look to terrorism-related injuries. In terms 
of the degree of compliance required by European law with the minimum standards mandated 
by the old Procedures Directive and now the current Asylum Procedures Directive, the court 
has been referred to the decision of the European Court of Justice in (Case C-137/14) 
Commission v. Germany [ECLI:EU:C:2015:683]. The court has also been referred to last year’s 
decision of the Court of Appeal in FMv. Minister for Justice [2020] IECA 184. Both cases 
require and repay careful consideration.
40
b. Commission v. Germany
54. In Commission v. Germany, the European Commission asked the European Court of 
Justice to declare that certain provisions of German law were not in conformity with Article 11 
of Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 
on the assessment of the effects of certain public and private projects on the environment (O.J. 
2012 L26, p. 1) and Article 25 of Directive 2010/75/EU of the European Parliament and of the 
Council of 24 November 2010 on industrial emissions (integrated pollution prevention and 
control) (O.J. 2010 L334, p. 17).
55. Article 11 of Directive 2011/92/EU provides, inter alia, as follows:
“ 7. Member States shall ensure that, in accordance with the
relevant national legal system, members of the public 
concerned: (a) having a sufficient interest, or alternatively,
(b) maintaining the impairment of a right, where 
administrative procedural law of a Member State requires 
this as a precondition, have access to a review procedure 
before a court of law or another independent and impartial 
body established by law to challenge the substantive or 
procedural legality of decisions, acts or omissions subject 
to the public participation provisions of this Directive.
2. Member States shall determine at what stage the decisions, 
acts or omissions may be challenged.
3. What constitutes a sufficient interest and impairment of a 
right shall be determined by Member States, consistently 
with the objective of giving the public concerned wide 
access to justice.
4. The provisions of this Article shall not exclude the 
possibility of a preliminary review procedure before an
41
administrative authority and shall not affect the 
requirement of exhaustion of administrative review 
procedures prior to recourse to judicial review procedures, 
where such a requirement exists under national law. Any 
such procedure shall be fair, equitable, timely and not 
prohibitively expensive.
5. In order to further the effectiveness of the provisions of this
article, Member States shall ensure that practical 
information is made available to the public on access to 
administrative and judicial review procedures. ”
56. Among the complaints made by the European Commission were that Germany had made 
the annulment, by a competent court, of an administrative decision which fell within the scope 
of Article 11 of Directive 2011/92, subject to there being a causal link between the procedural 
defect alleged and the outcome of the administrative decision in question (in effect, to relate 
matters to the proceedings at hand, a particular form of prejudice had to be shown).
57. The European Court of Justice had previously held, in this regard (in (Case C-72/12) 
Gemeinde Altrip and Ors., [EU:C:2013:712]) that: (i) it was not the intention of the European 
Union legislature to make the possibility of invoking a procedural defect conditional upon that 
defect’s having an effect on the purport of the contested final decision; and (ii) given that one 
of the objectives of Directive 2011/92 was to put in place procedural guarantees to ensure the 
public was better informed of, and more able to participate in, environmental impact 
assessments relating to public and private projects likely to have a significant effect on the 
environment, it was particularly important to ascertain whether the procedural rules governing 
that area had been complied with. Therefore, as a matter of principle, in accordance with the 
aim of giving the public concerned wide access to justice, the public had to be able to invoke 
any procedural defect in support of an action challenging the legality of decisions covered by 
that directive.
58. In the case before it, the European Court of Justice found that, insofar as applicable German 
law required, in every case, even where there were procedural defects as regards informing the 
public and its participation in the area under consideration, a causal link between the procedural
42
defect and the outcome of the contested administrative decision in order that the court having 
jurisdiction may annul that decision, such a condition made it excessively difficult to exercise 
the right to bring proceedings provided for in Article 11 of Directive 2011/92 and undermined 
the objective of that directive in terms of providing members of the public with a broad access 
to justice.
59. In this regard, the European Court of Justice observed as follows:
“57 To refuse annulment of an administrative decision adopted
in breach of a procedural rule on the sole ground that the 
applicant is unable to establish the effect that defect has on 
the merits of that decision renders that provision of EU law 
totally ineffective.
58 ... [T]he Court has previously held that the EU legislature 
neither intended to restrict the pleas which may be raised 
in support of an action under a provision of national law 
which transposed Article 11 of Directive 2011/92 nor to 
link the possibility of alleging a procedural defect with the 
requirement that that defect have affected the tenor of the 
contestedfinal decision.
59 Furthermore, the Court has also held that, with regard to 
the interpretation of the concept of ‘impairment of a right ’ 
within the meaning of Article 11 of Directive 2011/92, and 
more particularly the requirement, laid down in the 
national law, that such impairment of a right can exist only 
if the contested decision would have been different without 
the procedural defect invoked, the shifting of the burden of 
proof onto the person bringing the action, in accordance 
with national law, for the application of the condition of 
causality, is capable of making the exercise of the rights 
conferred on that person by that directive excessively 
difficult, especially having regard to the complexity of the
43
procedures in question and the technical nature of 
environmental impact assessments (see, to that effect, 
judgment in Gemeinde Altrip and Others, C-72/12, 
EU:C:2013:712, paragraph 52).
It follows therefrom that the impairment of a right, for the 
purposes of Article 11 of Directive 2011/92 cannot be 
excluded unless the court of law or body covered by that 
article is in a position to take the view, without in any way 
making the burden of proof of causality fall on the 
applicant, but by relying, where appropriate, on the 
evidence provided by the developer or the competent 
authorities and, more generally, on the case-file documents 
submitted to that court or body, that the contested decision 
would not have been different without the procedural defect 
invoked by that applicant (see, to that effect, judgment 
in Gemeinde Altrip and Others, C-72/12, EU:C:2013:712, 
paragraph 53).
Although it is true that those considerations relate to just 
one of the conditions for admissibility of legal proceedings, 
they remain relevant to any condition laid down by the 
national legislature which has the effect of restricting the 
review of the courts of the substance of the case.
It follows from the foregoing considerations that the 
requirement laid down in [applicable German law]...m so 
far as that provision places the burden of proof on the 
applicant ‘member of the public concerned’ that there is a 
causal link between the procedural defect which he alleges 
and the outcome of the administrative decision, constitutes 
an infringement of Article 11 of Directive 2011/92, so that 
the first argument raised by the Commission in support of 
the second part of the second complaint is well founded.'”
44
60. Rather than consider Commission v. Germany in isolation, it is perhaps preferable to 
consider that case in the context of the treatment of it by the Court of Appeal in its judgment 
last year in FM.
c.FM
61. By way of background to FM, Faherty J. states, inter alia, as follows in her judgment for 
the Court of Appeal:
“2 The relevant law at issue is that contained in Directive
2004/83/EC of 29 April 2004, O.J. L304/12, 30.9.2004 
(“the Qualification Directive”), which provides for the 
establishment of minimum standards for qualification for 
refugee status or subsidiary protection. The Qualification 
Directive was transposed into Irish law by the European 
Communities (Eligibility for Protection) Regulations 2006 
(S.I. No. 518/2006) (“the 2006 Regulations”). The 2006 
Regulations were in force until 2013 and operated in the 
context of a system whereby applicants seeking refugee 
status were dealt with firstly under the statutory scheme 
(the Refugee Act 1996, as amended) which established the 
Office of the Refugee Applications Commissioner (‘ORAC ) 
with a right of appeal to the Refugee Appeals Tribunal 
(‘RAT’) and, thereafter, a decision of the Minister to grant 
or refuse a declaration of refugee status.
3. Under the 2006 Regulations, the ability to apply for
subsidiary protection was confined to those persons whose 
applications for asylum had been refused, and accordingly 
it was only at the point of such refusal that an application 
for subsidiary protection could be made. The system in 
place was commonly referred to as the “bifurcated” 
system. The 2006 Regulations were replaced by the
45
European Union (Subsidiary Protection) Regulations 2013 
(S.I. No.426/2013) (“the 2013 Regulations”), which 
introduced new procedures. The 2013 Regulations, in turn, 
have been replaced by the International Protection Act 
2015 which established a common procedure for the 
examination of asylum and subsidiary protection 
applications. It is, however, to the bifurcated system as 
described above that these appeals relate.
4. Each of the appellants in the within appeals was the
recipient of a negative decision of the Minister in respect of 
refugee status following adverse appeal decisions from the 
RAT. In each case, the Minister's letter refusing refugee 
status offered the applicant the opportunity to leave the 
State voluntarily or to consent to a deportation order. The 
letter informed the applicant of his or her right to apply for 
subsidiary protection and/or make representations to the 
Minister seeking permission to remain temporarily in the 
State in accordance with s.3(3)(b) of the Immigration Act 
1999, as amended."
62. For the purposes of the within proceedings what are of interest are the observations of the 
Court of Appeal when it came to the third of the three issues that arose for it to adjudicate upon, 
viz. whether the regime in place under which the appellants applied for subsidiary protection 
was compatible with European Union law. A key issue arising for the Court of Appeal in this 
regard was an allegation that Ireland wrongly enmeshed the subsidiary protection process with 
the deportation process. More particularly, it was submitted that the absence of a process 
whereby the appellants could apply for subsidiary protection at the same time as applying for 
refugee status breached European Union law. In the course of her judgment, Faherty J. 
observed, inter alia, as follows:
“86. To my mind, the question is whether the appellants are
entitled, as a matter of law, to relief solely on the basis that 
the system in operation when their subsidiary protection
46
applications were being processed did not admit of the 
possibility ofapplying for subsidiary protection at the same 
time as an application for asylum. Perhaps the question is 
better understood by asking whether the deficiency in the 
2006 Regulations can be said, in respect of these 
appellants, to strike at the very substance of the EU right in 
issue. In my view, the question must be answered in the 
negative. Whatever defect might be said to have attached to 
the 2006 Regulations, as a matter of law the 2006 
Regulations provided a mechanism for the enforcement of 
the right to subsidiary protection. Moreover, it is 
undisputed that the appellants did in fact apply for 
subsidiary protection and had their applications considered 
by the Minister. Indeed, in his oral submissions, counsel 
accepted that the appellants' right to apply for subsidiary 
protection was ‘not totally breached’.
87. It must also be emphasised that if dissatisfied with the first
instance decision the appellants could avail of an effective 
remedy (judicial review) which each of the appellants has 
pursued. Moreover, as already referred to, in these appeals 
none of the appellants seeks to challenge the Minister's 
treatment of their individual applications. It has not been 
suggested in this court that the Minister's assessment of the 
appellants' individual circumstances or relevant country of 
origin information was deficient or otherwise unfair or that 
the trial judge erred in holding that no infirmity attached to 
the way the individual applications were decided by the 
Minister. Each of the cases was subject to a thorough 
decision by the Minister who took account of the case put 
forward for subsidiary protection and considered cogent 
and relevant country of origin material.
47
88. In my view, it is simply not enough to argue 
that certiorari or declaratory relief should follow solely on 
the ground that the CJEU clarified certain matters in H.N., 
without some factual basis having been put forward about 
how the system actually in operation when the appellants' 
subsidiary protection applications were processed in fact 
breached the substantive protections provided for in the 
Qualification Directive.”
63. Here, of course, there is a specific complaint made by Mr X, viz. that (i) in the impugned 
decision, taken on 7th February 2019, the IP AT states that it had regard to an Austrian Fact- 
Finding Mission of July 2015 (para.9.6), an EASO Country of Origin Report on Pakistan of 
July 2016 (see, e.g, para.9.2) and of August 2017 (para.9.6), and the UNHCR’s 2017 Pakistan 
Report (para.9.6), (ii) he was prejudiced by this in that the said information predominantly 
relates to 2016 and even the EASO Report of August 2017 only relates to the first five months 
of 2017, (iii) the information that was considered was only considered insofar as it pointed to 
a reduction in fatalities during the periods to which that information related whereas, he claims, 
there is no rational reason why the issue of serious harm would be considered only by reference 
to fatalities. So here, unlike in FM, a clear factual basis has been put forward as to how, Mr X 
claims, the system actually in operation when his subsidiary protection application was 
processed, breached the substantive protections provided for in the Qualification Directive, 
specifically Article 4(l)-(2) of same, as interpreted in MM, paras. 65-66, viz:
‘65 Under article 4(1) of Directive 2004/83, although it is
generally for the applicant to submit all elements needed to 
substantiate the application, the fact remains that it is the 
duty of the Member State to cooperate with the Applicant at 
the stage of determining the relevant elements of that 
application.
66 This requirement that the Member State cooperate therefore
means, in practical terms, that if, for any reason whatsoever, 
the elements provided by an applicant for international 
protection are not complete, up to date or relevant, it is
48
necessary for the Member State concerned to cooperate 
actively with the applicant, at that stage of the procedure, so 
that all the elements needed to substantiate the application 
may be assembled...".
64. As regards Commission v. Germany, Faherty J. observes, inter alia, as follows regarding
this case:
“f 03. On the basis of the CJE U's pronouncements in Commission
v. Germany, counsel for the appellants argues that it is 
unlawful under EU law for a court to refuse annulment, or 
to refuse to quash a decision such as those impugned in the 
within proceedings, unless the court ‘ is in a position to take 
the view, without in any way making the burden of proof of 
causality fall on the applicant ’ that the decision, absent the 
procedural defect, would have been no different.
fCourt Note: Here, of course, the court could not safely take 
the view that if up-to-date COI had been relied upon 
subsidiary protection would have been granted. It just has 
no idea what conclusion would have been reached in this 
regard.]
107. ...To my mind, counsel’s reliance on Commission v.
Germany is predicated on this court accepting that the 
effectiveness of the appellants' rights, as providedfor in the 
Qualification Directive, has been rendered nugatory by dint 
of the procedural rules under which their subsidiary 
applications were made. However, for the reasons set out 
earlier in this judgment, I have found no merit in the 
argument that the effectiveness of the rights providedfor in 
the Qualification Directive has been undermined by the
49
system in place when the appellants' subsidiary protection 
applications were determined.
[Court Note: Here the rights provided for in the 
Qualification Directive are the duty of cooperation as 
identified by the European Court of Justice in MM, at para. 
66, whereby “This requirement that the Member State 
cooperate therefore means, in practical terms, that if for 
any reason whatsoever, the elements provided by an 
applicant for international protection are not complete, up 
to date or relevant, it is necessary for the Member State 
concerned to cooperate actively with the applicant, at that 
stage of the procedure, so that all the elements needed to 
substantiate the application may be assembled1’.]
108. To reiterate, the essential question is whether the process
under which the appellants were obliged to pursue their 
subsidiary protection applications rendered the right to 
apply for subsidiary protection, as provided for in the 
Qualification Directive, totally ineffective in the sense 
which effectiveness was considered by the CJEU in 
Commission v. Germany (albeit in an entirely different 
context)....
rCourt Note: The type of effectiveness to which Faherty J. 
appears to refer in this regard is that countenanced by the 
European Court of Justice at para.57 of its judgment in 
Commission v. Germany, viz. being denied annulment of an 
administrative decision that is adopted in breach of EU law 
solely on the ground that one cannot establish the effect of 
that breach on the administrative decision reached. It seems 
from the above-quoted text of Faherty J. that the critical 
question arising for the court in this regard is ‘Did the 
process under which Mr X was obliged to pursue his
50
subsidiary protection application [in breach of the duty of 
cooperation] render Mr X’s right to subsidiary protection 
application totally ineffective in the sense considered by the 
European Court of Justice in Commission v. Germany?’]
109. I find no basis upon which the appellants can call in aid
Commission v. Germany. The pronouncements of the 
CJEU are clearly directed to what the CJEU was presented 
with in that case. This is clear from the tenor of the 
judgment overall and, in particular, para. 57. The CJEU's 
pronouncements were directed at a situation whereby the 
legislative provisions in issue in the case had rendered the 
rights and processes providedfor in the relevant directives 
entirely ineffective. Whatever their deficiencies, that cannot 
be said of the 2006 Regulations given that thereunder the 
appellants were provided with and availed of the right to 
apply for subsidiary protection although, admittedly, not 
contemporaneously with their asylum applications. There 
is no evidence that the procedural rules put in place by the 
2006 Regulations made the appellants’ exercise of their 
right to avail of subsidiary protection “ excessively 
difficult” in the sense considered by the CJEU in 
Commission v. Germany.”
fCourt Note: The court has considered para.57 of 
Commission v. Germany in its immediately previous note. 
The reference at the end of para. 109 of Faherty J’s judgment 
to ‘excessive difficulty’ harks back to para.59 of the 
judgment of the European Court of Justice in Commission 
v. Germany where the court was concerned with how the 
application of a condition of causality to an applicant (such 
as Mr X) requiring him to prove that the contested decision 
(here the refusal of subsidiary protection application) would 
have been different (i.e. it would have been granted) was,
51
to borrow from para.59 “capable of making the exercise of 
the rights conferred on that person by that directive 
excessively difficult' (the “rights” in this instance being the 
duty of cooperation that arises pursuant to Art.4(l)-(2) of 
the Qualification Directive, as interpreted by the European 
Court of Justice in MM, at para. 66)].
65. MM points to a European-law derived duty of cooperation which Mr X claims was not 
applied by the IP AT. FM, most particularly in its consideration of Commission v. Germany, 
focuses the court, it seems to this Court, on two key questions:
- first, did the process under which Mr X was obliged to pursue his subsidiary protection 
application, i.e. in a context where there was a complete breach of the duty of cooperation, 
render his right to subsidiary protection application totally ineffective in the sense considered 
by the Commission v. Germany?
- second, would the application of a condition of causality to Mr X, i.e. requiring him to prove 
that the contested decision (here the refusal of subsidiary protection application) would have 
been different (subsidiary protection would have been granted) capable of making the exercise 
of the rights conferred on him “excessively difficult’ within the meaning of Commission v. 
Germany, the “rights” in this instance being the duty of cooperation that arises pursuant to 
Art.4(l)-(2) of the Qualification Directive, as interpreted by the European Court of Justice in 
MM, at para. 66, and which went completely ignored by the IP AT?
66. The court proposes at this time to defer answering these questions until after the intended 
preliminary reference yields a preliminary ruling.
67. In passing, the court notes the following contention for the IP AT in counsel’s submissions:
“It is respectfully submitted that any consideration of COI performed 
by the Tribunal amounts to the ‘even if type identified by the court in 
KD v. Refugee Appeals Tribunal [2013] IEHC 401. In circumstances 
where there was no necessity for the Tribunal to consider COI as a 
result of the rejection of the Applicant’s claim on credibility grounds it
52
is submitted that the alleged failure to consider COI is not made out by 
the Applicant.”
68. As the court understands counsel’s submissions in this regard, it is that there was no need 
at all for the IP AT to consider COI and that it was looked at on an ‘even if basis, i.e. ‘Even if 
I, the IP AT tribunal member, am wrong about the COI, the COI doesn’t support Mr X’. With 
respect, this type of argument (encountered on the part of respondents in asylum proceedings 
with surprising frequency) involves the post facto construction of a hypothesis via submission 
as to what a decisionmaker was about (here in consulting COI). Under 0.84, r.22(4) RSC if a 
respondent intends to proceed on certain facts, they must be averred to, and in the within 
proceedings there is no relevant averment of any nature. There is presumably nothing to prevent 
the relevant IP AT member (even if s/he has moved on to other things and assuming that s/he is 
alive and well) from swearing an affidavit as to why s/he proceeded as s/he did. In any event, 
absent some basis in affidavit evidence, the above-quoted argument, with respect, just cannot 
properly be advanced. As Cooke J. observed in JDS (Nigeria) v. Minister for Justice, Equality 
and Law Reform [2012] IEHC 291, at para. 13, in a paragraph that also neatly encapsulates the 
critical facts presenting in those proceedings:
“[T]he essential case made on behalf of the applicant is that it is 
impossible to tell from the Minister's s. 5 consideration and concluding 
recommendation what the rationale of his decision was and what 
particular reasons he had for concluding that repatriation would not 
be contrary to the prohibition. The applicant had explicitly claimed that 
she had converted to Christianity, which resulted in her life having been 
threatened by her father, a Muslim cleric who had also forced or tricked 
her into aborting her pregnancy. This, it is argued, clearly brought the 
representations within the scope of the s. 5 prohibition and called for a 
clear, rational and intelligible decision on the part of the Minister.
Instead, the respondents'response was characterised by counsel for the 
applicants as an attempt to ‘construct a hypothesis’ as to why the 
Minister must have reached the conclusion. That, however, is not 
something which was permissible in law ”.
XI
53
Question 2
69. The question posed is ‘Should an order of certiorari be granted on the basis of the 
delays encountered in the assessment of Mr X’s claim (Ground b. of the statement of 
grounds)?’
70. The IP AT has ascribed the delay presenting in this case to the introduction of the 
International Protection Act 2015 and the commencement in operation of same (with all the 
administrative work which this required).
71. When it comes to the issue of delay, the court has been referred, inter alia, (a) to the 
decisions of the High Court in (i) Point Exhibition Co. Ltd. v. Revenue Commissioners [1993] 
2 I.R. 551, (ii) O’Donoghue v. The Legal Aid Board and Ors. [2006] 4 I.R. 204, (iii) KM and 
DG v. Minister for Justice, Equality and Law Reform and Ors. [2007] IEHC 234 and (iv) Tagni 
v. Minister for Justice, Equality and Law Reform [2010] IEHC 85 (albeit noting that KM and 
Tagni took place under a since significantly altered legislative regime), and also (b) to the 
judgment of the European Court of Justice in (Case C-277/11) MM v. Minister for Justice, 
Equality and Law Reform [ECLI:EU:C:2012:744] and (c) to the judgment of the European 
Court ofHuman Rights in Me Far lane v. Ireland (App No. 31333/06) [2010] ECHR 31333/06, 
52 EHRR20.
(a)(i) Point Exhibition
72. In Point Exhibition, the applicant was the owner of ‘the Point’ entertainment venue here 
in Dublin. On 19th May 1992, the applicant applied to the respondents for an excise licence 
pursuant to s.7 of the Excise Act, 1835. The respondents neither granted nor refused the licence, 
informing the applicant that the matter was under consideration, and the applicants instituted 
judicial review proceedings seeking, inter alia, an order of mandamus directing the granting of 
a licence. For present purposes what is relevant is the following observation of Geoghegan J., 
at 554-55:
“The respondents have not either granted or refused the licence under 
s.7 of the Act of 1835, but at all material times have informed the
54
applicant that the matter is still under consideration. It appears that the 
respondents were concerned as to their legal entitlement to grant the 
licence, notwithstanding that they had already issued licences on a 
similar basis to a number of smaller theatres. I should say at the outset 
that I have the utmost sympathy with the respondents in having legal 
doubts. The questions at issue in this case are by no means capable of 
easy resolution. I have had considerable difficulty in answering them. 
Nevertheless, in my view, the applicant was entitled to a decision one 
way or the other within a reasonable time. The respondents quite 
obviously did not make such decision within any time span that could 
be regarded as reasonable Accordingly, the applicant is entitled to treat 
the delay as a refusal and to seek an order of mandamus directing the 
granting of the licence [assuming he was legally entitled to same]”.
73. Point Exhibition indicates that where a decisionmaker (such as the IP AT) has the power 
to make a decision but no time is fixed by law for that decision to be made there is nonetheless 
a duty to make the decision within a reasonable timeframe.
(a)(ii) O ’Donoghue
74. In O ’Donoghue the plaintiff experienced a delay of 24 months between contacting the first 
defendant for legal aid and ultimately obtaining an appointment with a solicitor. A further 
month elapsed before she was given a legal aid certificate. As a result the plaintiff claimed that 
the defendants were guilty of breaches of statutory duty and negligence and had denied her 
certain rights allegedly due to her under the Constitution and the European Convention on 
Human Rights. She sought various declarations and also damages. Granting certain of the 
reliefs sought, the trial judge observed, inter alia, as follows:
“Pd On the 31st July 2003, the European Court of Human
Rights delivered its judgment in the case o/'Doran v.
Ireland (Unreported, European Court of Human Rights,
31st July 2003). The plaintiffs in that case commenced High 
Court proceedings on the 17th July 1991, seeking damages 
for negligence against their own solicitors and another firm
55
of solicitors who acted for vendors of property to the 
plaintiffs. It is not necessary to repeat here in any detail the 
chronology of what occurred thereafter. It is sufficient to 
record that extraordinary delay was encountered by the 
Dorans and it was not until February 1999 that the 
litigation came to an end save for the question of costs. The 
costs issue was finally dealt with in December 1999. As a 
result of the delays which they encountered, the Dorans 
litigated before the European Court of Human Rights. The 
case is of particular interest because of the submissions 
which were made by the State to that court as to the 
entitlements of the Dorans to seek redress in respect of the 
delay encountered by them by reference to the Constitution. 
The submissions of the Government are set forth at paras. 
50 to 53 of the judgment. They read as follows:-
‘50. The Government maintained that the 
applicants did have an effective 
domestic remedy. They submitted that it 
had been open to them to contend that 
they had a right to a decision within a 
reasonable time on two constitutional 
grounds drawn from the unenumerated 
rights guaranteed by Article 40.3.1° of 
the Constitution. Such grounds could 
have been invoked by the applicants at 
any stage of the proceedings....While 
the Constitution and other law did not 
prescribe any particular remedy for the 
infringement of an individual's 
constitutional rights, the appropriate 
remedy would depend on the facts of a 
particular case and 'may' include an 
award of damages against the State....
56
51. The first constitutional ground which 
the applicants could have invoked was 
the principle of 'constitutional justice’. 
The Government submitted that courts 
have recognised that the unenumerated 
rights guaranteed by Article 40.3.1° of 
the Constitution include principles of 
constitutional justice and that the latter 
includes various procedural guarantees 
including a right to a reasonably 
prompt decision. In this respect, the 
Government cited a number of domestic 
cases....
The Government submitted that 
constitutional justice had successfully 
been invoked to augment the specialised 
code of procedural and evidential law 
regulating judicial function where the 
passage of time could have resulted in 
injustice....
52. The second constitutional ground which
the Government suggested the 
applicants could have invoked was their 
constitutional right to litigate or their 
right of access to court to assert and 
vindicate legal rights.... They
maintained that the applicants could 
therefore have argued before the High 
and Supreme Courts that they had a 
constitutional right to a decision within 
a reasonable period of time in order for 
their right to litigate to be effective, 
based on the maxim that justice delayed 
is justice denied and, in particular, they
57
could have argued that their right to 
litigate extended to the more prompt 
processing of their case by the courts. 
They could have requested the courts to 
give effect to this right or, in default, to 
award them damages for its 
infringement.
53. Furthermore, the Government 
submitted that the domestic courts had a 
positive duty to protect persons against 
invasion of their constitutional rights. 
They pointed out that judges take an 
oath to uphold the Constitution and are 
therefore under a duty to preserve the 
individual's constitutional rights. They 
further argued that the applicants could 
also have pleaded the judgments of the 
European Court of Human Rights as 
persuasive authority in support of their 
constitutional contentions. ’
106 The Act of 1995 gives substance, in many ways, to the
constitutional entitlement to legal aid for appropriate 
persons. The legislature is entitled to define reasonable 
limits to that right. But the right cannot be effectively set at 
nought for years in the manner that it was here. I am of 
opinion that the rights under the Constitution identified and 
described in the paragraphs quoted from the State’s 
submission to the European Court of Human Rights 
in Doran v. Ireland (Unreported, European Court of 
Human Rights, 31st July, 2003) are as applicable to this
58
plaintiff as they were, on the State's own case, to the 
Dorans
75. So delay can, unsurprisingly, present constitutional concerns.
(a)(iii) KM and DG
76. In KM and DG, the first and second applicants were married to each other, the second 
applicant being an Irish citizen. In September 2006, the first applicant applied to the Minister 
for Justice for permission to remain in the State on the basis of his marriage to an Irish citizen. 
In the course of ensuing correspondence, the first applicant received a letter from the Minister 
in January 2007, stating that the waiting time at that stage was 11 months and that it would be 
a number of months before his application was even examined. The applicants then 
commenced judicial review proceedings seeking, inter alia, an order of mandamus ordering 
the respondent to determine the first applicant's application and damages for breach of 
constitutional rights and/or breach of the ECHR. Though he refused the relief sought, Edwards 
J. observed, at para. 41, inter alia, as follows:
“lam satisfied that the entitlement to a prompt decision is an aspect of 
constitutional justice. Moreover, quite aside from constitutional justice 
it is clear from the authorities that the idea of substantive fairness 
includes a duty not to delay in the making of a decision to the prejudice 
of fundamental rights...”
(iv) Tagni
77. Tagni is another decision of Edwards J., this time concerning an EU treaty rights 
application in respect of a Cameroonian national married to a Polish national who was 
exercising her right to work in Ireland. In the course of the interactions between the parties 
and the Minister, the Department at one point wrote out indicating that the application was 
being refused because certain requested information had not been provided. When it was 
indicated to the Department that the information had in fact been provided, the Department 
indicated that it would review the decision. That was in November 2008. By June 2009 there 
had been no meaningful progress in this regard and judicial review proceedings ensued.
59
Edwards J. was satisfied in all the circumstances presenting to grant a declaration that the 
respondent was guilty of failing to render his review decision within a reasonable time, 
observing, inter alia, at para. 7.13 as follows:
“Because this was a review the Minister was not subject to a specific 
time limit but rather was obliged to render a decision within a 
reasonable time....The applicant says that the respondent has failed to 
render his decision on the review within a reasonable time. The court 
agrees with this submission.”
(b) MM
78. MM was a reference to the European Court of Justice that was concerned with the 
interpretation of the since repealed Art.4(l) of Council Directive 2004/83/EC of 29 April 2004 
on minimum standards for the qualification and status of third country nationals or stateless 
persons as refugees or as persons who otherwise need international protection and the content 
of the protection granted (O.J. L304,30.09.2004, pp. 12-23). The reference arose in proceedings 
between (i) Mr M and (ii) the Minister for Justice, Equality and Law Reform, Ireland and the 
Attorney General, concerning the lawfulness of the procedure followed in processing an 
application for subsidiary protection which Mr M had lodged following rejection of his 
application for refugee status. This Court’s attention has been drawn to the Opinion of AG Bot 
([ECLI:EU:C:2012:253]), where the Advocate General observes, inter alia, as follows, at paras. 
112-15:
iiIlz Third, Mr M. maintains that he did not know when a
decision would be taken on his application for subsidiary 
protection, also criticising the length of the proceedings.
111 It is clear from the documents on the file that the procedure
for examining Mr M’s asylum application took six and a 
half months and that concerning his application for 
subsidiary protection, 21 months. Mr M. was therefore 
informed about his situation on conclusion of a procedure 
that had lasted a little over two years and three months.
60
114 That length of time seems to me to be manifestly 
unreasonable. Although in Ireland examination of the 
application for subsidiary protection is not subject to the 
procedural rules mentioned in Article 23(2) of Directive 
2005/85 — which provides that Member States must ensure 
that the procedure for examining applications for 
international protection is concluded as soon as 
possible and, where a decision cannot be taken within six 
months, that the applicant is either informed of the delay or 
receives information on the time-frame - the fact remains 
that the competent national authority is obliged to ensure, 
when it adopts a decision falling within the scope of EU 
law, observance of the right of the person concerned to 
good administration, which constitutes a general principle 
of EU law.
Applications for subsidiary protection, like applications for 
asylum, must thus be the subject of a thorough examination, 
taking place within a reasonable period of time, as the 
prompt dispatch of the proceedings contributes not only to 
the applicant’s legal certainty but also to his integration
79. AG Bot was of the Opinion, albeit that his Opinion is in no way binding on this Court that 
a delay of 2 years and 3 months to treat with and advise the outcome of a person’s asylum and 
subsidiary protection application was “manifestly unreasonable’’'1; here the delay is still longer. 
The last of the above-quoted paragraphs is also of interest because it points to why egregious 
delay is offensive at law, AG Bot noting in this regard that “[T]he prompt dispatch of the 
proceedings contributes not only to the applicant’s legal certainty but also [in the event that an 
application is successful] to his integration.”
(c) McFarlane
61
80. Finally, the court notes the decision of the European Court of Human Rights in McFarlane. 
The facts of that case were as follows. In 1975, Mr McFarlane was imprisoned for his role in a 
bombing in Northern Ireland. He escaped from prison in 1983 and was believed to be involved in 
a high-profile kidnapping in 1984, after certain fingerprint evidence was apparently discovered. In 
1986, Mr McFarlane was arrested in the Netherlands and thereafter served out the rest of his 
sentence without ever being questioned about the kidnapping. In 1998, he was released on parole 
but immediately arrested by the Gardai for offences relating to the kidnapping. Around this time 
it emerged that the original fingerprint evidence had been lost, although a forensic report remained 
available. A period in which prohibition actions/appeals were brought then ensued, lasting until 
mid-2008 when a supposed confession was deemed inadmissible and the charges against Mr 
McFarlane were dismissed. Mr McFarlane subsequently brought an action before the European 
Court of Human Rights arguing that the criminal proceedings brought against him were 
unreasonably long and that he had been denied an effective domestic remedy for a breach of this 
right. The case is of interest in the within proceedings because of the following observation of the 
European Court of Human Rights, at para. 140 of its judgment, when treating with Art.6(l) ECHR:
“The Court recalls its constant case law to the effect that the 
reasonableness of the length of proceedings must be assessed in the 
light of the circumstances of the case and with reference to the 
following criteria: the complexity of the case, the conduct of the 
applicant and of the relevant authorities and what was at stake for the 
applicant (for example, Surmeli v. Germany [GC], no. 75529/01, §
128, ECHR 2006-VII).,,
81. Notwithstanding all of the foregoing, the court considers it necessary to give judgment in 
the within case to seek a preliminary ruling of the European Court of Justice whether the 
effecting of change to the applicable asylum protection framework - a ‘shifting of the statutory 
furniture’ to put matters more colloquially - operates to excuse the respondents in the within 
proceedings from operating an asylum scheme which would have provided a decision to Mr X, 
an applicant for asylum, within a reasonable time.
XII
62
Question 3
82. The question posed is ‘Should an order of certiorari be granted on the basis of a failure 
by the IP AT to obtain other evidence, e.g., a SPIRASI report?’
83. Mr X appears to have been suffering from, inter alia, anxiety, depression, and to have been 
afflicted with a disturbed sleeping pattern. The evidence of a medical doctor (a GP) who treated 
Mr X that went before the IP AT states, inter alia, as follows:
“...He originates from Pakistan and is presently prescribed 
Mirtazapine...and Sertraline....The Mirtazapine and Sertraline are 
antidepressants and he takes these for a mixture between depression 
and anxiety and also to help with a disturbed sleep pattern...None of 
his family is here and he worries repeatedly about them. He suffers with 
anxiety, nightmares, difficulty sleeping and background anxiety which 
relates to threatening behaviour by the Taliban at home. While the 
Mirtazapine is to help a disturbed sleep pattern, as this want’s quite 
satisfactory, Sertraline was added to see if it couldfurther relieve some 
of his symptoms. He has also been referred to counselling to help him 
cope with some of his stresses.”
84. Under the heading “The Appellant’s Mental Health Difficulties”, the IP AT observes, inter 
alia, as follows in this regard:
“[5.35] The appellant has furnished a medical report from Dr 
[Y]...dated 21st February 2018 which states that the Appellant is 
prescribed certain medications for ‘a mixture between depression and 
anxiety and also help with a disturbed sleep pattern ’. The Presenting 
Officer submitted in closing arguments that a mental health report 
cannot say if the condition was caused by a bomb blast or not.
[5.36] The appellant confirmed to the Tribunal that has been going to 
counselling for the past two years and that the doctor recommended 
him for SPIRASI but there were long delays.... The Tribunal accepts the
63
Presenting Officer’s assessment that a Mental Health Report cannot 
say if the diagnosed condition was caused by a bomb blast or not. A 
SPIRASI report may well have been of more assistance in this regard.”
85. Mr X contends that the medical doctor’s report sufficed to place the IP AT on enquiry as to 
his mental condition, and that compliance with the duty of cooperation, required the IP AT to 
investigate and consider Mr X’s mental health in a manner consistent with that contemplated 
in Mv. Refugee Appeals Tribunal and Ors. [2006] IEHC 241, a case involving a South African 
lady who had a HIV+ diagnosis, in which McMenamin J. observed, at para. 43, inter alia, as 
follows:
“The essential question for determination at this stage is whether the 
Applicant has established arguable and substantial grounds. The 
essence of the case made by the Applicant is that there were materials 
before the tribunal that placed the tribunal itself on inquiry as to 
whether the Applicant would be the victim of discrimination as a HIV 
positive woman in South Africa which the South African authorities 
would not only be unwilling to counteract but be instrumental in 
perpetuating. I go no further to say it is arguable that there were such 
materials before the tribunal and that an onus devolved on the tribunal 
itself to investigate and consider these issues as a consequence. In the 
circumstances I am of the view that for the purposes of this leave 
application the applicant has crossed the necessary threshold in 
establishing grounds for seeking leave though I wish to reiterate that 
the finding of this court goes no further
86. As mentioned previously above, the court considers it necessary for it to give judgment 
that it obtain a preliminary ruling as to what the duty of cooperation mandates of the IP AT in 
this regard. The court will hear the parties further as to the proposed preliminary reference.
XIII
Question 4
64
87. The question posed is ‘Should an order of certiorari be granted on the basis that Mr 
X was wrongly denied the benefit of the doubt by IP AT?’
88. It is true that the applicant told a lie in his application form, though he retracted this on his 
first meeting with the ORAC, which was his very next interaction with the authorities. When it 
comes to lie-telling, the court would reiterate by reference the observations that it has made at 
para. 21 above. The last point made by the court in this regard is that it is a truism that an 
applicant’s case must be determined on the basis of what facts are found to present, not on the 
basis of whatever evidence was rejected. The court considers it necessary for it to give judgment 
in the within proceedings that it seek a preliminary ruling of the European Court of Justice on 
the interaction between lie-telling and any implications for the extension of the benefit of the 
doubt. The court will hear the parties further as to the proposed preliminary reference.
XIV
Conclusion
89. The parties are respectfully referred to the court’s opening paragraph above.
90. The court proposes to hear any further argument concerning the proposed preliminary 
reference on a date next term that best suits the parties. Counsel for the parties might kindly 
liaise with the court’s judicial assistant in this regard.
65
To the Applicant:
What Does this Judgment Mean for You?
Dear Applicant,
lam always concerned that because applicants in immigration cases are foreign nationals for 
whom English may not be their first language, they should, if possible, be placed by me in a 
position where they can understandfor themselves a judgment that can have a profound impact 
on their lives.
Because much of what I have written in the main body of my judgment above may seem like, 
and probably is, legal jargon, I identify below some key elements of my judgment and what it 
means for you. Although this summary is a part of my judgment, it is not a substitute for what 
is stated in the main body of my judgment. It is meant merely to help you understand some 
key elements of what I have stated. The other parties require no such assistance. So this 
section of my judgment is addressed to you, the applicant, though copied to all of the parties.
In a nutshell, my present sense is that the case as argued by your counsel raises a number of 
points of European Union law on which it will be necessary for me to seek the guidance of the 
European Court of Justice before I proceed to final judgment in your application. However, 
because the possibility of my seeking the guidance of the European Court ofJustice only arose 
when I raised it as a possibility at the hearing, it is only fair that I should (and I indicated to 
counsel for the IP AT that I would) hear further from both sides as to what I have said in the 
above judgment before proceeding further. I expect that sometime in April counsel for both 
sides will come back before me and I will hear them further and then make a final decision as 
to how best to proceed. Your legal position remains unchanged.
The above is a short explanation of the outcome of a long judgment and your legal advisors 
will be able to explain all aspects of the judgment to you in detail.
Yours faithfully,
Max Barrett (Judge)
66
THE HIGH COURT
[2019 No. 124 JR]
BETWEEN
GnEm
Luft^mbourg
En,rt* 09, 12. 2021
APPLICANT
-AND-
THE INTERNATIONAL PROTECTION APPEALS TRIBUNAL, THE MINISTER 
FOR JUSTICE AND EQUALITY, IRELAND, AND THE ATTORNEY GENERAL(2)
RESPONDENTS
SECOND INTERIM JUDGMENT of Mr Justice Max Barrett delivered on 23rd
November 2021.
1. The court refers to its first interim judgment of 16th March 2021, and, more particularly, 
the four key questions that it identified at para.35 of same as requiring to be answered by it in 
its final judgment. Following on that first interim judgment the parties made helpful 
submissions as to the proposed preliminary reference to the Court of Justice of the European 
Union (CJEU), for which the court is grateful.
2. The court is satisfied, consistent with Art.267 TFEU, that a decision of the CJEU on the 
following questions of European Union law is necessary to enable the court (as referring court) 
to give judgment on Question 1 identified at para. 35 of its interim judgment:
A. In circumstances where there has been a complete breach of the duty of 
cooperation as described at paragraph 66 of the judgment of the CJEU 
in Case C-277/11 M.M. v. Minister for Justice, Equality and Law Reform
1
and Ors, in an applicant’s application for subsidiary protection, has the 
consideration of that application been rendered “totally ineffective” in the 
sense considered in Case C-137/14 Commission v. Germany?
B. If the answer to Question A is positive, should the aforesaid breach of the 
duty of cooperation, without more, entitle an applicant to annulment of 
the decision?
C. If the answer to Question B is in the negative, then and if applicable, on 
whom does the onus lie to establish that the refusal decision might have 
been different had there been proper cooperation by the decision maker?
3. The court is satisfied, consistent with Art.267 TFEU, that a decision of the CJEU on the 
following questions of European Union law is necessary to enable the court (as referring court) 
to give judgment on Question 2 identified at para. 35 of its first interim judgment:
D. Should the failure to provide a decision on an applicant’s application for 
international protection within a reasonable time entitle an applicant to 
annulment of a decision when issued?
E. Does the time taken in effecting of change to the applicable asylum 
protection framework within a Member State operate to excuse that 
Member State from operating an international protection scheme which 
would have provided a decision on such protection application within a 
reasonable time?
4. The court is satisfied, consistent with Art.267 TFEU, that a decision of the CJEU on the 
following questions of European Union law is necessary to enable the court (as referring court) 
to give judgment on Question 3 identified at para. 35 of its first interim judgment:
F. Where insufficient evidence is before a protection decision maker as to 
the state of an applicant’s mental health but where some evidence of the 
possibility of an applicant suffering from such difficulties is present, is 
the international protection decision maker, in accordance with the duty
2
of cooperation mentioned in Case C-277/11 M.M. v Minister for Justice, 
Equality and Law Reform and Ors (para.66), or otherwise, under a duty 
to make further enquiry, or any other duty, prior to arriving at a final 
decision?
5. The court is satisfied, consistent with Art.267 TFEU, that a decision of the CJEU on the 
following questions of European Union law is necessary to enable the court (as referring court) 
to give judgment on Question 4 identified at para. 35 of its first interim judgment:
G. Where a Member State is carrying out its duty pursuant to Article 4(1) 
of the Qualification Directive (2004/83/EC) to assess the relevant 
elements of an application is it permissible to declare the general 
credibility of an applicant not to have been established by reason of one 
lie, explained and withdrawn at the first reasonably available 
opportunity thereafter, without more?
6. This, it seems to the court, is an appropriate case in which it should request that the CJEU 
deal with the matter under its urgent preliminary reference procedure. The court is mindful in 
this regard of the Fact Sheet produced by the CJEU entitled “Urgent Preliminary Ruling 
Procedure and Expedited Procedure”. Given the scope of the questions raised and the 
importance thereof throughout the European Union and the continuing delays envisaged for 
the applicant in this case, this, it seems to this Court, is an appropriate case in which to request 
the CJEU to apply that procedure.
Applicable Legislation
7. Though the court does not suggest the contrary in its judgment, the court notes for the 
avoidance of doubt and for the benefit of the CJEU that the applicable directives in the context 
of these proceedings are Directive 2004/83/EC (the Qualification Directive) and Directive 
2005/85/EC (the Procedures Directive). As the Irish Supreme Court observed in Michael (a 
minor) & Ors v. Minister for Social Protection & Ors, (and Emma (a minor) & Anor.) [2019] 
IESC 82:
3
k
“13. The Qualification Directive was repealed and recast by Directive 2011/95/EU 
(hereinafter referred to as ‘the Qualification Directive Recast’) with effect from 
21st December, 2013. However, Recital 50 of the Qualification Directive Recast 
provides: ‘In accordance with Articles 1, 2 and Article 4 (a) of the Protocol (No.
21) on the position of the United Kingdom and Ireland in respect of the Area of 
Freedom, Security and Justice, annexed to the TEU and to the TFEU, and without 
prejudice of Article 4 of that Protocol, the United Kingdom and Ireland are not 
taking part in the adoption of this Directive and are not bound by it or subject to its 
application. ’
14. Thus, as can be seen, although the 2004 Qualification Directive has been 
repealed by the 2011 Directive, the position is that as far as Ireland is concerned, 
not having adopted the 2011 Qualification Directive Recast, Ireland remains bound 
by the 2004 Qualification Directive
8. Similar considerations apply to the Procedures Directive as the recast Procedures Directive 
(2013/32/EU) states at Recital 48 thereof that “In accordance with Articles 1, 2 and Article 
4a(l) of Protocol No 21 on the position of the United Kingdom and Ireland in respect of the 
Area of Freedom, Security and Justice, annexed to the TEU and the TFEU, and without 
prejudice to Article 4 of that Protocol, the United Kingdom and Ireland are not taking part in 
the adoption of this Directive and are not bound by it or subject to its application
Conclusion
9. The court will arrange with the Principal Registrar for the request for the preliminary 
reference to be communicated to the CJEU.
4