The applicants, one Brazilian national and one Georgian national, applied for international protection in Ireland. For both of them it was recommended that their applications be refused and the applicants did not appeal against the recommendations. The Minister for Justice accepted those recommendations and the applications were rejected.

The applicants applied to have the time limits for appeal extended and asserted that the fact that such decisions cannot be appealed before International Protection Appeals Tribunal, as section 41 limits the right to appeal to persons who are considered applicants within the meaning of section 2.2 of the International Protection Act, or have the time limit unlocked by any action of the applicant or by the Minister, renders them unconstitutional.

Several situations, whereby an applicant would struggle to apply within the deadline and would be unable to react immediately to a decision issued by the Minister for Justice, were outlined in support of the applicants’ assertion. One such example was if a person were to fall ill with COVID-19 and spent two months in hospital after which time the person would remain too weak to consider their application for several weeks.

The IPAT refused the applicants’ requests to have the appeal time limit extended, which was also confirmed by the High Court, as the individuals were no longer considered applicants. They were granted permission to appeal before the Supreme Court.

The Supreme Court analysed the objectives of the International Protection Act of 2015 and noted that when establishing the Act, the legislative branch placed emphasis on efficiency and aimed to ensure that any ability to apply for an extension of the time limit to appeal would not be utilised to slow the entire system. At the same time the International Protection Act of 2015 gives the Minister power of discretion in several instances including in granting failed asylum applicants the right to remain in Ireland. Given the extent of the Minister’s power of discretion, the court concluded that ‘clear words are needed to completely remove the Minister’s discretion, and these are not to be found in prohibiting the exercise by the Minister of either an executive decision to suspend the operation of the prohibition on pursuing an appeal, under Article 28.2, or enabling the correction of internal mistakes.’ This means that if the Minister were to make a mistake, for example a decision was issued to the wrong person, the Minister has the possibility to apply to the High Court to amend a mistake.

The court also considered that in exceptional cases, the Minister's power of discretion would ‘undoubtedly encompass the possibility of suspending an order made under s[ection] 47 [of the International Protection Act 2015] for the purposes of allowing the appellants in this case, or any other persons subject to such an order, to seek an extension of time and appeal the recommendation of the IPO through IPAT, thereby ensuring the continued protection of their rights to fair procedures and a just remedy.’ Moreover, the Minister has the authority to amend the regulations to enable a discretionary appeal if required.

The court concluded that, as a result of discretion afforded to the Minister which could be used to facilitate appeals, the International Protection Act of 2015 is constitutional. However, it also held that the manner in which IPAT applied section 2(2) and section 47(5)(b) of the International Protection Act of 2015 to the applicants was not legal as it did not allow them to extend the time limit to appeal. The court thus held that persons who are no longer considered applicants may request an extension of the time limit to appeal a decision issued under section 39 of the International Protection Act of 2015.