IEHC 417 — IEHC 417 — High Court

THE HIGH COURT JUDICIAL REVIEW

[2026] IEHC 417 Record No. 2025/1744JR

BETWEEN S. M.

APPLICANT

-AND-

THE MINISTER FOR JUSTICE, HOME AFFAIRS AND MIGRATION

RESPONDENT

JUDGMENT of Ms. Justice Siobhán Phelan, delivered on the 26th day of June, 2026

INTRODUCTION

1. The Applicant is a national of Somalia and a declared refugee. In these proceedings, he seeks relief in respect of the delay of the Respondent (hereinafter “the Minister”) in processing his application for family reunification with his wife pursuant to s. 56 of the International Protection Act, 2015 (hereinafter “the 2015 Act”). This application is now pending for more than two years.

2. In opposing these proceedings, the Minister explains or justifies the delay in processing the application with reference to immigration or security checks with outside agencies which have not yet concluded.

1 3. By way of context, there are currently approximately 70 cases pending before the High Court involving delays in applications for family reunification under s. 56 of the 2015 Act in respect of family members (usually spouses and children, sometimes very young children) from countries such as Afghanistan and Somalia. Most of the countries involved in these cases are known to be unsafe (hence the grant of refugee status which triggers the entitlement to apply under s. 56). It is not unusual to see delays exceeding two years in these cases.

4. Having granted leave to proceed by way of judicial review in many of these cases, I am aware that similar explanations for delay are offered in standardised or generic terms in most of these cases. As in this case, the Minister often, but not always, relies on immigration or security checks with outside agencies which have not yet concluded. In none of the many cases I have seen has the precise nature of the checks, whether a basis for them arises in the individual case and a timeframe for conclusion of these checks, been specified. Typically, however, an assurance is given that once checks have concluded a decision will issue. Accordingly, applicants are given no real information as to when they might expect a decision.

5. This matter comes before me by way of an application for orders compelling replies to particulars and/or interrogatories in circumstances where the Minister opposes these proceedings, inter alia, in reliance on “an orderly and rational system for consideration of applications made pursuant to s. 56 of the 2015 Act” and the Minister’s duty “to be satisfied that the application does not pose any risks to national security or public policy before granting permission to enter the Sate in accordance with s. 56” (para. 6 of Statement of Opposition).

6. In opening the application, counsel for the Applicant accepted that the Applicant did not require both replies to particulars and interrogatories and elected to proceed in respect of interrogatories only. The interrogatories which I am asked to direct answers to are appended in a schedule to this judgment.

2 BACKGROUND

7. The Applicant was granted a declaration of refugee status by the Minister on the 25th of May, 2023. He thereafter became entitled to apply for family reunification pursuant to s. 56 of the 2015 Act in respect of qualifying family members.

8. On the 6th of September 2023, the Applicant applied for family reunification in respect of his wife. A questionnaire issued by the Minister on the 23rd of October, 2023, which the Applicant duly completed and returned on the 21st of February, 2024, together with supporting documentation including identity documents and evidence of the marital relationship.

9. On the 27th of March, 2025, the Minister replied to raise queries concerning, inter alia, the Applicant’s marriage documentation and the sufficiency of evidence of the relationship. The Applicant responded to these queries on the 24th of April, 2025, providing explanations and further supporting materials, including evidence of ongoing contact and financial support.

10. Thereafter, the Minister continued to indicate that the application was under consideration and subject to ongoing checks. No clear timeframe for determination was provided. The Applicant characterises these communications as consisting of generalised or formulaic “status updates” which did not meaningfully advance the application or explain the delay.

11. In the light of the ongoing delay, the Applicant’s solicitors issued a pre-action letter on the 25th of September 2025, calling upon the Minister to determine the application within 21 days and asserting that the delay constituted a breach of the Applicant’s constitutional rights and rights under Article 8 of the ECHR. A further letter issued on the 17th of October, 2025, reiterating the complaint and requiring a decision within 14 days.

12. Notwithstanding this correspondence, the Minister did not determine the application and continued to rely on the existence of ongoing processing and security checks. No substantive explanation for the length of the delay was provided.

3 13. The Applicant subsequently initiated judicial review proceedings. Leave was granted on the 15th of December, 2025. The Respondent delivered a Statement of Opposition on the 30th of March, 2026, and a Verifying Affidavit on the 2nd of April, 2026, asserting that the application remained subject to ongoing security checks.

14. On the 23rd of April, 2026, the Applicant served a Notice for Particulars and Interrogatories, directed to clarifying the factual basis of the Minister’s pleaded opposition to proceedings, in particular the nature and scope of the asserted investigations and security checks.

15. The Minister failed to reply to the Notice for Particulars or to answer the Interrogatories and did not deliver any notice of objection. A follow-up letter was issued on the 18th of May 2026. No response was received on behalf of the Minister.

16. In those circumstances, the Applicant has proceeded to bring the present motion seeking orders directing replies to the Notice for Particulars and answers to the Interrogatories (on affidavit). The Minister has not replied to this request in these proceedings and the first engagement with these requests, other than advising the Court that the application was being resisted in a call-over list, was the delivery of written submissions immediately before the application was heard.

LEGAL FRAMEWORK

17. Under s. 56 of the 2015 Act, the Minister must grant family reunification where the Applicant has refugee status and the family member in question falls within the defined categories of eligible family members (which includes spouse if the marriage is valid and subsisting). I was reminded during the hearing of this application that s. 47(3) of the 2015 Act allows the Minister to refuse a declaration of refugee status where there are reasonable grounds for regarding an applicant as a danger to the security of the State or the person, having been convicted of a serious crime (whether in the State or not), constitutes a danger to the community of the State.

18. If the Minister conducts a security check before granting a declaration of refugee status on foot of a recommendation under the 2015 Act, then there will already be some 4 relevant information available to the Minister in the case of a s. 56 application. If checks are carried out on behalf of the Minister prior to granting a declaration of refugee status, it is reasonable to assume that the grant of refugee status signifies that the Minister had not discovered reasonable grounds for regarding the applicant as a danger to the security of the State or to have been convicted of a serious crime such that they constituted a danger to the community or at least not grounds considered sufficient to warrant refusal of refugee status.

19. As a condition of family reunification with a spouse, the Minister must be satisfied the marriage is legally valid and subsisting (s. 56(2) and (9)(a)). Section 56(2) vests the Minister with a power to investigate in the following terms:

“(2) The Minister shall investigate, or cause to be investigated, an application under subsection (1) to determine— (a) the identity of the person who is the subject of the application, (b) the relationship between the sponsor and the person who is the subject of the application, and (c) the domestic circumstances of the person who is the subject of the application.”

20. On s. 56 applications, the Minister does not have broad discretion (in contrast with naturalisation applications which have also been the subject of challenge on delay grounds) and the application is rights based. Section 56(4) provides, subject only to subsection (7), that once the Minister is satisfied that the person the subject of the application is a member of the family of the sponsor (as defined under s. 56(9)), the Minister must then grant a permission in writing to the family member to enter and reside in the State.

21. It is clear from the statutory scheme that the entitlement to reunification arises once the Minister is satisfied conditions of family membership are met unless one of the disqualifying factors provided for in s. 56(7) is found to apply. Section 56(7) provides:

5 “(7) The Minister may refuse to give permission to enter and reside in the State to a person referred to in subsection (4) or revoke any permission given to such a person— (a) in the interest of national security or public policy (“ordre public”), (b) where the person would be or is excluded from being a refugee in accordance with section 10, (c) where the person would be or is excluded from being eligible for subsidiary protection in accordance with section 12, (d) where the entitlement of the sponsor to remain in the State ceases, or (e) where misrepresentation or omission of facts, whether or not including the use of false documents, by the person was decisive in the decision to give the person the permission.”

22. While s. 56(2) requires the Minister to investigate or cause to be investigated an application to determine the identity, relationship with the sponsor and the domestic circumstances of the person, there is no express requirement on the Minister to investigate whether the person is guilty of disqualifying behaviour before granting permission, albeit the power to exclude from eligibility from family reunification on prescribed grounds would appear to imply a power to cause checks to be carried out. Indeed, it bears note that the power to revoke any permission granted under s. 56(7) is available in cases where information comes to light after permission has been granted with the result that the issue of permission before checks are concluded does not prevent a later decision to rescind that permission in appropriate circumstances.

23. The nature of the right to family reunification prescribed under s. 56 of the 2015 Act and the type of person or behaviour which may result in an exclusion from eligibility is fleshed out by the terms of ss. 10 and 12 of the 2015 Act, referred to in s. 56(7).

24. Section 10 of the 2015 Act, referred to in s. 56(7)(b), provides for the exclusion of a person from a right to family reunification in a range of circumstances including where there are serious reasons for considering that he or she has committed or incited or otherwise participated in a crime against peace, a war crime, or a crime against

6 humanity, as defined in the international instruments drawn up to make provision in respect of such crimes, has committed a serious non-political crime outside the State prior to his or her arrival in the State, or has been guilty of acts contrary to the purposes and principles of the United Nations as set out in the Preamble and Articles 1 and 2 of the Charter of the United Nations.

25. Similarly, s. 12 of the 2015 Act (referred to in s. 56(7)(c)) provides for the exclusion of a person from eligibility for family reunification at the discretion of the Minister where there are serious reasons for considering that he or she (a) has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes, (b) has committed a serious crime, (c) has been guilty of acts contrary to the purposes and principles of the United Nations as set out in the Preamble and Articles 1 and 2 of the Charter of the United Nations, or (d) constitutes a danger to the community or to the security of the State or has incited or otherwise participated in the commission of a crime or any such acts.

26. Likewise, by operation of s. 12(3) of the 2015 Act, a person may be excluded from being eligible for family reunification if he or she has, prior to his or her arrival in the State, committed any other crime which, if committed in the State, would be punishable by imprisonment and if he or she left his or her country of origin solely in order to avoid sanctions resulting from that crime. In reality these considerations are unlikely to have much bearing on applications made on behalf of young children although in my experience delays based on security checks are also prevalent in such cases and explained in similar terms.

27. It would appear from the scheme of s. 56, as described above, that an entitlement to reunification is almost automatic once identity and relationship is established, unless serious reason for suspecting criminality exists. This is presumably because of the importance accorded by the Legislature to the fundamental nature of marital and family rights of the person as also protected under the Constitution and the ECHR.

28. Although the application for family reunification under s. 56 of the 2015 Act must be made within twelve months of the grant of refugee status (in accordance with s. 56(8)

7 of the 2015 Act), no strict statutory deadline for a decision on the application is prescribed.

PROCEEDINGS

29. The Applicant’s case as pleaded in the Statement of Grounds is framed around four related legal complaints, all arising from the Minister’s failure to decide on the family reunification application in a timely manner.

30. Firstly, it is contended that the Minister is under a legal duty to process and decide the application within a reasonable period. The ongoing delay is alleged to be unlawful and a breach of the Applicant’s entitlement to timely administrative decision-making.

31. Secondly, it is contended that this delay is in breach of statutory duty as under s. 56 of the 2015 Act, the Minister has a duty to decide family reunification applications. The Applicant argues the Minister has failed to perform that statutory function or failed to do so within a reasonable timeframe.

32. Thirdly, it is contended that the delay breaches the Applicant’s constitutional rights, specifically personal rights under Article 40.3 to a timely decision as an incident of constitutional justice and fair procedures. It is separately contended that the Constitution protects the family unit and marital relationship under Article 41 with the result that the prolonged timeframe for a decision results in a disproportionate interference with family life and constitutes a breach of these constitutional protections.

33. Finally, the Applicant relies on rights protected under Article 8 of the ECHR (right to family life), contending that the delay interferes with the Applicant’s right to live with his spouse and Article 13 of the ECHR (effective remedy) in circumstances where the absence of a timely decision is said to deny an effective remedy.

34. The facts relied upon as grounding the proceedings include the date of the application for family reunification now almost three years ago (September 2023), the date of returned completed questionnaire more than two years ago (February, 2024), responses to correspondence which issued on the 27th of March, 2025, seeking clarification

8 provided on the 24th of April, 2025, further solicitor’s correspondence dating to the 25th of September, 2025, expressing the Applicant’s confusion and frustration regarding delays in processing the application and highlighting concerns for the Applicant's wife’s safety and which warned of proceedings in the absence of a response within 21 days, a second warning email to the Minister on the 17th of October, 2025, again warning that proceedings would issue if a decision was not received within 14 days, the Minister’s email reply also of the 17th of October, 2025, committing to review the application within 28 days and, finally, the Minister’s letter dated the 30th of October, 2025, stating that a review of the application had been completed, the application had been processed and was awaiting final immigration checks and the Minister had no control over this procedure.

35. Across the Statement of Opposition, the Minister relies on three key pleaded propositions, namely, the application is actively being investigated, it is processed within an orderly and rational system and no decision can issue due to outstanding security checks. It is positively pleaded that applications are subject to security checks which are carried out by An Garda Síochána who “may” make requests of agencies outside the State and it is not possible for An Garda Síochána to give direction to such external agencies in relation to timeframe for response (at para. 7 of the Statement of Opposition). It is further pleaded that the application in this case is the subject of “such security checks” and “the results of same remain outstanding”, notwithstanding that the Minister “has sought updates in relation to the progress of the security checks on a number of occasions” (at para. 8 of the Statement of Opposition). In consequence, the Minister’s position is that he is “precluded from making a decision on the application at this time”.

36. On affidavit (sworn by P. O’Moore, Assistant Principal Officer) on behalf of the Minister, reliance is placed on “increased numbers of applications” (increasing from 312 in 2019 to 1424 in 2025) impacting on the speed of processing with the wait time for decisions increasing from an average of 10 months in 2023 to 20 months in 2025. It appears from what is said on affidavit that it is only once supporting documentation has been received and reviewed that a decision is made as to whether the application should be referred for security checks in the interests of national security.

9 37. The Minister’s affidavit evidence is to the same general effect as the Statement of Opposition in confirming that applications cannot be decided until security checks are complete. It is averred that these checks may involve An Garda Síochána, other government departments and external agencies (possibly international). It is confirmed on affidavit with regard to these external agencies that the Minister does not control the timeline and cannot compel faster responses when assistance is sought from such agencies. In this way, the Garda National Immigration Bureau and the Garda National Vetting Bureau are treated in the affidavit evidence as external agencies over which the Minister has no control but appears that some checks may be conducted through the Department and without recourse to An Garda Síochána.

38. The deponent on behalf of the Minister avers that details of the checks are not disclosed to protect cooperation and methods.

39. The deponent on behalf of the Minister further points out that where information arises in the course of processing, this may require correspondence with an applicant in order for particular matters to be addressed or information provided. Clearly, this has not yet occurred in this case and these averments are general in nature and not directed to the Applicant’s application specifically.

40. From paras. 21 to 25, the Affidavit of the Assistant Principal Officer addresses more particularly the Applicant’s application and confirms specifically that there was an initial delay on the Applicant’s part in submitting the completed Questionnaire (February 2024). It is further confirmed that following receipt of this documentation “the investigation of the application commenced” and “the application was referred for security checks on our about 21 September 2024”, some seven months after all documentation had been delivered. Although investigations were in a position to commence in February, 2024, it is confirmed that it was not until the 27th of March, 2025, that correspondence issued on behalf of the Minister seeking further clarification. This request was replied to on or about the 24th of April, 2025.

41. It is next confirmed on affidavit that the application was processed (as outlined in an email in October, 2025) and is “undergoing final checks”. It is averred (para. 24):

10 “as outlined above, the time taken for completion of the security checks is outside the control of the Minister and varies depending on the circumstances.”

42. It is also averred that the Unit has followed up in relation to outstanding checks “on a number of occasions” without specifying when and how often or whether a response has been received other than “no timeframe has been given as to when the results can be anticipated” (at para. 24 of the Affidavit of P. O’Moore). The Affidavit concludes with an averment to the effect that, as appears from the correspondence exhibited by the Applicant’s solicitor, it has been made clear to the Applicant that the application is undergoing final checks before a decision issuing and that such checks are outside the control of the Minister. This correspondence has further confirmed that “as soon as the outcome of the checks is to hand, there will be no delay in issuing a decision” (at para. 25).

43. On foot of the Opposition papers delivered in early April, 2026, the Applicant proceeded to raise a Notice for Particulars and Interrogatories for the examination of the Minister. In moving the application for orders compelling answers to the interrogatories raised, the Applicant complains that there is a lack of clarity about what checks involve, how long they take and who conducts them. The Applicant also queries whether the checks are standard or case-specific, genuinely required in his case or whether they are being used to justify open-ended delay.

44. In setting out the reasons why answers are required to the interrogatories raised, it is stated that answers are necessary “for disposing fairly of the cause or matter”, and/or “for saving costs.” The Applicant says that the Minister’s Statement of Opposition and Verifying Affidavit rely on unclear and unexplained matters which are not supported by exhibited documents. In particular, the Minister refers to a system of “security checks”, allegedly involving “external agencies” but does not explain what those terms mean, who is involved and how the system operates. The interrogatories are said to concern matters relied on by the Minister to justify the delay and relate specifically to the Applicant’s application and deal with matters “peculiarly within the Respondent’s knowledge.”

11 45. The core justification advanced, therefore, for requiring answers to the interrogatories raised is that answers are necessary because the Minister is relying on vague, unexplained “security checks” to justify delay and it is contended the only way to properly challenge that case and allow the Court to fairly determine the issues, is to compel clear, sworn answers about these matters.

INTERROGATORIES RAISED

46. The Applicant delivered 19 interrogatories (as set out in Schedule hereto). They are, in the main, focused on extracting specific factual admissions about the “security checks” and decision-making process relied on by the Minister.

47. Several of the interrogatories are directed to the timing and initiation of security checks and the Minister is asked to confirm the date on which the Applicant’s case was first referred for security checks, whether that referral occurred in or around September, 2024 (as pleaded), whether any further or subsequent referrals were made and the dates of any follow-up requests or reminders (Nos. 1 to 2, 7 and 8).

48. The Minister is also asked to identify the agencies involved in checks and specifically whether An Garda Síochána were involved, if so, which unit or division, whether other Government Departments or agencies were involved and whether any external or international bodies were consulted (Nos. 3 to 7).

49. The Minister is asked further questions directed to the status of checks and outstanding steps, specifically, whether any responses remain outstanding, whether all required responses have been received, whether the application is awaiting a single outstanding check or multiple inputs and specifically whether any response is outstanding from any agency outside the State (Nos. 5 & 12).

50. Next the Minister is asked about the nature of the checks and asked to confirm whether the checks are standard in all applications or specific to this Applicant and whether any risk factor particular to the Applicant triggered enhanced checks (Nos. 9 & 10).

12 51. The Minister is also asked about the process and system for conducting checks, specifically, whether there exists a system or policy governing security checks, when that system was introduced or implemented and how cases are processed within that system including the average time taken for Garda Síochána security checks (Nos. 11 in conjunction with other questions).

52. Queries are raised regarding confidentiality of the Applicant as a refugee (benefitting from protections under s. 26 of the 2015 Act) and the Minister is asked whether the Applicant’s refugee status is disclosed to any third parties and whether there are policies or safeguards in place to protect confidentiality.

53. Finally, the Minister is asked about duration and performance of checks, specifically the average time taken for security checks during 2024 and 2025 (No. 15), with the apparent purpose of comparing general processing times and the delay in the Applicant’s case and assessing the response in terms of the provision of additional resources (nos. 16 and 17). The Minister is asked whether positive decisions have ever issued before completion of check (Nos. 18 and 19).

SUBMISSIONS

54. In moving the application for an order directing answers to interrogatories, the Applicant relies on Order 84, Rule 26 and Order 31 (as amended in July 2024) of the Rules of the Superior Courts (RSC). Order 84, Rule 26 expressly envisages that an interlocutory application under Order 31 may be pursued in judicial review proceedings.

55. It is submitted on behalf of the Applicant, that the interrogatories pursued are factual questions, not requests for evidence and they relate to facts within the Minister’s exclusive knowledge. In written submissions the authorities identified include Cooney v. Browne (No. 2) [1985] I.R. 185 (need for clarity in pleadings), Dowling v. Minister for Finance [2012] IESC 32 (purpose of interrogatories to enable a party to obtain information as to facts material to questions in dispute and to obtain admissions of any fact required to be proven); AIB v. Doran [2020] IEHC 210 (interrogatories to be encouraged where they reduce cost and time); O'Doherty v. Minister for Health [2022] 13 IESC 32 (available as a tool to address information imbalance) and Marques v. Minister for Justice [2017] IEHC 597 (limits of discovery in judicial review).

56. In oral submissions, I was referred to the seminal decision in Nearing v. Minister for Justice, Equality and Law Reform [2010] 4 I.R. 211, [2009] IEHC 489 identifying the test to be applied in delay cases in which mandamus is sought. Cooke J. observed (at para. 20) that:

“Thus, the issue in this case is one as to what is a “reasonable time in these circumstances. It goes without saying, perhaps, that what is reasonable depends on the circumstances …. including the nature of the decision sought, the particularities of the applicant’s position, and the impact that any delay may have and also on the conduct of the administrative decision maker in dealing with such applications, together with any explanation given for the time taken.”

57. It is contended on behalf of the Applicant that the interrogatories delivered seek replies in the affirmative, negative or short factual answers concerning the date of first referral for security checks, whether other government departments were involved, whether the Garda Síochána was involved and, if so, through what unit, whether responses remain outstanding, whether the referral was standard or applicant specific, whether any policy exists to safeguard confidentiality, the average time Garda checks took during 2024 and 2025, and whether positive decisions have issued without completed checks. Those are questions of fact, not evidence. They concern matters peculiarly within the Minister’s own knowledge and arise directly from the factual explanation advanced in the Statement of Opposition and Verifying Affidavit for the continuing failure to decide the application.

58. The Applicant argues that the absence of answers to the interrogatories raised would leave issues undefined and would undermine the fairness of hearing. It is submitted that the questions raised are limited and responses are procedurally necessary and the process more appropriate (and cheaper) than discovery.

14 59. The Minister neither responded to the request for interrogatories by way of correspondence nor filed an affidavit by way of reply to the Motion in circumstances where the issues to be decided in this application are legal issues and therefore not appropriate to be the subject of an affidavit. The Minister confirmed when the Motion was assigned a hearing date that the application would be resisted. The Minister filed written submissions in advance of the hearing setting out in broad terms the basis upon which the application is resisted.

60. In his submissions, the Minister relies squarely on the sworn evidence placed before the Court to explain that the application is the subject of security checks in relation to which the Minister relies on external agencies and as such has no control over the time taken and cannot direct a response. The Minister’s position is that the Court will have to determine at hearing whether, considering the reasons given on affidavit for the time taken, any alleged delay is egregious and/or tantamount to a refusal.

61. The Minister maintains that interrogatories are not appropriate because “there is simply no dispute on the facts”. The Minister maintains that it is not sufficient for the Applicant to raise queries in relation to the facts as outlined in the verifying affidavit filed on behalf of the Minister because he claims not to have sufficient information. It is submitted that the Notice for Interrogatories amounts to a “fishing expedition” which the Applicant is using to seek uncover some information which might bolster a suspicion apparently held that the Minister’s sworn evidence is somehow inaccurate. The Minister accepts that the Applicant has not articulated that suspicion but rather maintains that it is to be reasonably inferred from the questions asked.

62. The Minister’s primary position is that his evidence is as outlined on affidavit and the proceedings can be determined on that basis. It is contended that further information is not required for the determination of the issues arising in these proceedings and that interrogatories are not necessary for the fair disposal of the proceedings. In essence, the Minister contends that the interrogatories seek detailed information about processes, timelines, and agencies but these are not facts in issue and the Court does not need to determine which Garda unit is involved, the exact dates of referrals or how many agencies are engaged. Instead, the Court only needs to decide whether the explanation already given justifies the delay. Accordingly, the Minister’s position is that the interrogatories do not address material facts necessary to resolve the case. 15 63. The Minister suggests that the interrogatories amount to a disguised attempt to cross- examine the deponent on behalf of the Minister on the contents of their affidavit, but this should not be permitted because judicial review proceedings are determined on pleadings and affidavit evidence and should not be treated in the same way as plenary proceedings involving a trial with oral evidence. It is emphasised on behalf of the Minister that the Applicant fully understands the defence which is that delay is due to security checks still outstanding. The Minister resists any contention that the basis for opposition is vague in any legally relevant sense and maintains that the adequacy of the basis for opposition can be challenged at hearing.

64. It is further argued on behalf of the Minister that the motion itself delays the substantive hearing and increases rather than reduces costs, contrary to the requirement that they save time and costs.

65. Special reliance was placed on behalf of the Minister in oral submissions on the decisions in Marques v. Minister for Justice [2017] IEHC 597 (concerning an application for discovery in aid of judicial review proceedings in which discovery was refused having regard to the nature of the proceedings and in the absence of a prima facie basis for holding that there had been a failure to take certain matters into account as asserted) and McCarthy v. the Veterinary Council of Ireland [2020] IEHC 248 (concerning an application for further and better particulars in support of judicial review proceedings in which the application was refused having regard, inter alia, to the fact that evidence is on affidavit and the onus of proof of establishing a positive plea or defence is on the person who asserts such that where the evidence is vague, this may result in the defence being rejected).

66. In summary, the position articulated on behalf of the Minister is that the interrogatories are not necessary for the fair disposal of the proceedings because they do not go to any fact in dispute and will not assist the Court in determining the sole issue, namely whether the delay, as already explained on affidavit, is unlawful.

16 APPLICABLE TEST

67. Order 31 makes provision for the delivery of “interrogatories” whereby a litigant can require an opposing party to answer on oath a series of questions designed to assist the requesting party in proving its case or undermining the case of the opposing party. In an apparent attempt to promote the use of interrogatories as an effective litigation tool capable of narrowing issues, reducing costs and promoting the administration of justice, Order 31 was amended in 2024 (Order 31, Rules 1 to 11 substituted by S.I. 363 of 2024 effective from the 17th of July, 2024) with the result that it is no longer necessary to obtain the leave of the Court to deliver interrogatories not exceeding 20 in number to the same party. The Rules provide, however, for objection to be taken to interrogatories.

68. In relation to objections, Order 31, Rule 2(4) provides:

“Without limiting the grounds on which objection may be made, interrogatories: (a) must be confined to questions as to facts in issue in the proceedings or facts reasonably relevant to establish facts in issue in the proceedings, but excluding questions concerning the evidence by which any fact might be proved; (b) must be confined to questions of fact the answer to each of which is likely to be within the knowledge of the person required to answer having, where appropriate, made any reasonably necessary inquiries; (c) must be confined to questions of fact which are amenable to answer by an affirmative, negative or short statement of fact without narrative; (d) must be confined to questions of fact which are necessary either for disposing fairly of the cause or matter or for saving costs.”

69. The Rules envisage that the interrogated party shall, within 21 days of delivery or such other time as is agreed or directed by the Court deliver to the interrogating party and file a notice setting out the grounds of any objection to any interrogatory which shall include, where relevant, details of any other means by which the interrogated party is willing to address the matter raised in the interrogatory concerned (including, without

17 limitation, by delivering further particulars; by making an admission, or by producing documents).

70. This procedure was not followed in this case and in consequence, the Minister has not set out concise grounds of objection to each interrogatory in the manner envisaged in Order 31, Rule 5, albeit such a response would have been helpful to me in ruling on this application. No issue was raised in this regard during the hearing before me and the Applicant has proceeded directly in reliance on Order 31, Rule 7(b) which envisages an application to the Court, within 14 days of the delivery to of the interrogated party’s affidavit and any notice of objection (or, as the case may be, within 14 days after the expiry of the time allowed for such delivery), by motion on notice to compel the delivery of answers.

71. Under Order 31, Rule 9, the Court may, on hearing this application, “without limitation” do any of the following:

“(a) make an order requiring the interrogated party to answer or answer further, as the case may be, either by affidavit or by viva voce examination, as the Court directs, (b) determine that the interrogated party is not required to answer: (i) any interrogatory which does not comply with the requirements of rule 2; (ii) any interrogatories which have been delivered unreasonably or vexatiously, or which are prolix, oppressive, unnecessary, or scandalous; (iii) any interrogatories the imposition of a requirement to answer which might prejudice a fair hearing of the issues between the parties, and may make such further or other order on the application as is just, including an order for the delivery of fresh interrogatories, an order for the delivery of further particulars or an order for the production of documents.”

72. Furthermore, Order 31, Rule 10 provides that the Court may determine that the interrogated party is not required to answer an interrogatory notwithstanding that the question concerned might be admissible on the oral cross-examination of a witness. Under Order 31, Rule 11, if it is the opinion of the Court that any interrogatories were

18 delivered unreasonably, the costs occasioned by those interrogatories and the answers thereto may be directed to be paid in any event by the party found to have behaved unreasonably, regardless of the outcome.

73. The most recent edition of Delaney and McGrath on Civil Procedure (5th ed., 2023) pre-dates the 2024 amendment to the Rules which relaxes the procedure for seeking interrogatories. The textbook is nonetheless helpful in its synthesis of the purpose of interrogatories and the principles which guide the making of orders requiring answers to interrogatories. Reference is made in Chapter 12, addressed to Interrogatories, to the decision of Doyle J. in Long v. Conway (Unreported, High Court, Doyle J., 25th July, 1977) where he described the purpose of interrogatories as being:

“[T]o facilitate and to expedite the trial of actions by enabling a party to obtain from his opponent information as to facts material to the questions in dispute between them and to obtain admissions of any facts which he has to prove on any issue which is raised between them.”

74. The authors observe that interrogatories provide a useful means of preventing a party denying facts which he knows to be true and of establishing the veracity of facts which might otherwise be difficult to prove. They can, thus, be used as a means of discharging the burden of proof borne by a party in respect of an issue (see para. 12.02). It is further noted that by making it easier for a party to prove his case, interrogatories mitigate the potential for injustice that could arise where one party has greater knowledge of the facts and circumstances underlying proceedings (at para. 12.03) quoting from Lynch J. in Bula Ltd v. Tara Mines Ltd. [1995] 1 ILRM 401, 405 where he said:

“[T]he basic purpose of interrogatories is to avoid injustice where only one party has knowledge and the ability conveniently to prove facts which are important to be established in aid of the opposing party’s case, such opposing party not having such knowledge nor the ability to prove the facts either at all or without undue difficulty.”

19 75. The courts have long advocated the utility of interrogatories and it has been lamented that they are not used to greater effect (see Kelly J. in McCabe v. Irish Life Assurance plc [2015] 1 IR 346, [2015] IECA 239 relying on Walsh J in J. & L.S. Goodbody Ltd v. Clyde Shipping Co. Ltd. (Supreme Court, 9th of May, 1967) (both cited in Delaney & McGrath). In McCabe Kelly J. referred with approval and by way of exhortation to practitioners, to the long-ago dicta of the Supreme Court in L.S. Goodbody where it was stated that:

“One of the purposes of interrogatories is to sustain the plaintiff’s case as well as destroy the defendant’s case and that interrogatories need not be confined to facts directly in issue but may extend to any facts, the existence or non existence of which is relevant to the existence or non existence of the facts directly in issue. Furthermore, the interrogatory sought need not be shown to be conclusive on the question in issue, but it is sufficient if the interrogatory sought should have some bearing on the question and that the interrogatory might form a step in establishing the liability. It is not necessary for the person seeking leave to deliver the interrogatory to show that it is in respect of something he does not already know.”

76. Under Order 31, interrogatories are envisaged as permissible where they are necessary for disposing fairly of the cause or matter or for saving costs as reflected in the language of Order 31, Rule 2(3). This was confirmed in Dowling v. Minister for Finance where the Supreme Court stated (para. 8.5):

“Interrogatories only arise where, in the words of Doyle J. in Long v. Conway (Unreported, High Court, Doyle J., 25th July, 1977), same are necessary to facilitate and to expedite the trial of actions by enabling a party to obtain from his opponent information as to facts material to the questions in dispute between them and to obtain admissions of any facts which he has to prove on any issue which is raised between them.”

20 77. In Allied Irish Banks plc v. Doran [2020] IEHC 210 at (at paras. 24 to 29), Simons J, referring also to McCabe v. Irish Life Assurance plc [2015] 1 IR 346, [2015] IECA 239 emphasised that interrogatories are to be encouraged where they can narrow issues and save time and costs. In assessing the question of proportionality and discovery, in Tobin v. Minister for Defence [2020] 1 IR 211, [2019] IESC 57, the Supreme Court noted (at p. 223) the ‘advantage of serving interrogatories, in obviating the need for costly and more time-consuming discovery’. Especial reliance was placed in argument on behalf of the Applicant on the more recent decision in O’Doherty v Minister for Health [2023] 2 IR 488, [2022] IESC 32 in which the Supreme Court observed that the Applicant lacked evidence and noted that (at para. 69):

“The procedures of discovery, interrogatories, and notices to admit have all been developed to permit parties to secure evidence from their opponents, and others, to assist in establishing their case, and to avoid difficulties created by any informational asymmetry. These procedures were developed and extended to permit justice to be done and rights to be vindicated in litigation, and there is no reason why they cannot be deployed in the context of a challenge to the constitutional validity of legislation.”

78. From the foregoing, the purpose of interrogatories is to enable a party to obtain from an opponent information as to facts material to the questions in dispute and admissions of facts which would otherwise have to be proved. Interrogatories are properly available in circumstances where they narrow issues and save time and costs or where necessary to permit justice to be done and rights to be vindicated in litigation, inter alia, by assisting a party bearing the burden of proof on an issue to prove facts that might otherwise be difficult to prove.

21 ANALYSIS AND DECISION

Overview

79. I have little hesitation in rejecting the contention that interrogatories are intended for plenary proceedings and not proceedings by way of judicial review. The Rules expressly permit interrogatories in judicial review proceedings (Order 84, Rule 26). In addition, Order 84, Rule 22(5) states that 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.

80. The argument advanced on behalf of the Minister that the authorities indicate that the power to compel answers to interrogatories in judicial review proceedings requires to be sparingly exercised falls to be understood in the applicable context, namely, a context where the Minister is required by the Rules of Court to identify and the facts and matters relied upon, such that in the normal course all relevant facts necessary to decide the issue should be disclosed, not least as part of a broader duty of candour to the Court. This notwithstanding, the Supreme Court in O’Doherty v. Minister for Health unambiguously recognises that interrogatories may be used to address “informational asymmetry” in judicial review proceedings and were developed and extended to permit justice to be done and rights to be vindicated in litigation generally.

81. Cases such as McCarthy and Marques which were relied on in argument on behalf of the Minister (in which interlocutory orders were refused in judicial review proceedings) turn on their own circumstances and the legal issues arising for determination. Neither case was concerned with interrogatories. Insofar as principles are established in each which suggest that interlocutory orders such as discovery, particulars and interrogatories are not readily available in judicial review proceedings, these principles refer to the legal and factual parameters of the issues for determination in judicial review proceedings which often are not properly amenable to further interrogation. In

22 deciding whether to direct answers to interrogatories it is necessary to conduct a case- by-case assessment having regard to the particular legal and factual parameters.

82. The legal and factual parameters of the McCarthy and Marques cases are clearly different to those in this case. Neither case concerned delayed decision making in the context of a statutory entitlement designed to protect and vindicate personal rights, subject only to defined disqualifying conditions and neither concerned an application for an order compelling an answer to interrogatories. Indeed, in Marques the issue of discovery arose in the context of a third set of proceedings taken by way of challenge to the extradition of the Applicant to the USA. The Applicant had already unsuccessfully challenged the refusal of the DPP to give reasons for not prosecuting him in the State arising from the same acts for which extradition was sought. It is recorded in the judgment (para. 7) that an unsatisfactory aspect of the proceedings was that the precise grounds upon which relief was sought was not clearly set out.

83. The complaint made in Marques, as divined by the Court despite identified pleading issues, appeared to be that the Minister’s decision was unsound because he did not seek reasons from the DPP as to why the applicant was not prosecuted in the State (even though he had already been refused relief in proceedings against the DPP seeking reasons). The case was defended on the basis that there was no requirement for the Minister to consider or have regard to the decision of the DPP not to prosecute and reliance was placed on the formal correspondence which had issued in the case as explaining the decision. The circumstances were clearly distinguishable to those in these proceedings.

84. Similarly, in McCarthy (an application for orders compelling replies to particulars), the position was also quite different. In that case, it was contended that the recommendation of the Fitness to Practice Committee of the Veterinary Council of Ireland contained in its report to the Veterinary Council was vitiated by errors on the face of the record by reason of a reference to the drug oxycontin when it was common case that the drug in question was oxytocin and its interpretation of a statement of evidence admitted on behalf of the Applicant.

85. In McCarthy, it was accepted by the Veterinary Council that there had been an erroneous reference to the drug oxycontin but it was contended that this error could be

23 cured by the Veterinary Council at sanction stage by drawing the error to the Council’s attention and, by reference to the totality of the evidence, could not have been material to the decision. As for the second alleged error, it was not accepted by the Council that there was any error in circumstances where it was its contention that the witness statement in question could bear the interpretation given to it by the Committee and it was improper on the part of the applicant to seek to explain or expand on that evidence ex post facto, having admitted the statement in its terms.

86. Particulars were raised on the Statement of Opposition as to whether the mistaken reference to oxycontin arose via mistake of counsel or stenographic mistake and the plea that the mistaken reference was not material to recommendation of the Committee. Similarly, particulars were raised as to the matters relied upon as supporting the contention that any error in assessing the admitted witness statement was not material to the findings of the Committee.

87. As it was clear from the opposition papers in McCarthy that the Veterinary Council were relying on the totality of the evidence before the Committee to contend that the erroneous reference to oxycontin did not have any bearing on the findings of the Committee or on the opinion it expressed in relation to the applicant’s fitness to practice, the Court was satisfied that the applicant would not be taken by surprise and the basis for opposition was sufficiently particularised. There was no ambiguity in the reliance on the totality of the evidence which was before the Committee such that the pleadings were considered adequate to define the issues between the parties.

88. Neither case relied on by the Minister is authority for a broader proposition that interlocutory orders compelling answers to interrogatories should be more restrictively granted in judicial review proceedings even where the test of relevance and necessity is met. The test is the same, whether the proceedings are plenary or by way of judicial review. The test is calibrated by reference to the fact that the procedure is intended to enable parties obtain information as to facts material to questions in dispute and is not confined to facts directly in issue but which is relevant to the existence or non-existence of facts directly in issue (L.S. Goodbody), to address information imbalance (O’Doherty) and to obtain admissions of facts required to be proven “on any issue” which is raised between them (Dowling). The purpose of interrogatories is not only to

24 narrow issues or save time and costs but also to ensure that justice is done and rights are vindicated in litigation (O’Doherty).

89. I am satisfied that interrogatories are available as a tool in judicial review proceedings, the relative novelty of this application arising not from a reluctance to make such orders at all in judicial review proceedings but because it is less likely that interrogatories are required in such proceedings due to the nature of the issues (legal and factual) which typically arise. When one considers the terms in which the Grounds of Opposition are advanced in this is a case, it seems to me that there is apparent and manifest informational asymmetry of the type referred to in O’Doherty as all relevant operational facts lie within the Minister’s knowledge. Moreover, the Minister has chosen to defend these proceedings by reference to administrative processes which he describes only in general, high-level terms and without more than superficial engagement with the facts in this case.

90. In cases of informational asymmetry which this case undoubtedly is, where a positive position is advanced but supported by vague and general assertions as to the factual position without specific averments in relation to the particular case before the court, the justice of the case may require further information in relation to the asserted positive defence as a means of ensuring an effective remedy or permitting justice to be done on the basis of a real understanding of the facts.

Facts relevant to issues arising

91. The substantive issue in these proceedings is whether the delay in the performance of a statutory duty under s. 56 of the 2015 Act is such as to breach a requirement that the application be decided within a reasonable time. To succeed in this application the Applicant must not only show delay (in this case already more than 2 years) but the court must also be persuaded that there is also a lack of sufficient justification for that delay (relevant case-law including Nearing and the consideration of delay by the Court are considered on an application for mandamus in the recent decision in MJ and AA v. The Minister for Justice [2026] IEHC 51, also concerned with security checks but in the context of a naturalisation application based on conferral of a privilege rather than vindication of a right).

25 92. Accordingly, in my view, the Minister is wrong to characterise the issue in these proceedings as purely legal. The central issue is whether the delay is lawfully justified. That question is fact-sensitive and the Minister relies on positive factual assertions, namely that the application is “actively investigated”, that it is processed within an “orderly and rational system” and that “security checks” justify the delay.

93. In determining whether the Minister has acted lawfully, as he contends, the Court may consider whether there are proper procedures and a rational system in place for processing the applications, as contended on behalf of the Minister. As the Court is confined by the information before it in evidence, without sufficient information as to how the system works in practice to enable it to be scrutinised and meaningfully assessed, the court will be required to decide whether the Minister has discharged the onus on him of establishing a positive defence or whether the Applicant has persuaded it that the system is other than rational, in either instance putting justice on the hazard in a decision made on the basis of incomplete information.

94. At the substantive hearing of these proceedings, the Court will be asked to assess whether the delay is unlawful as too long or is justified by the evidence adduced on behalf of the Minister and still proportionate having regard to the information in evidence regarding the steps taken on behalf of the Minister in processing the application during the more than two years since the application was complete. The critical battleground is likely to be whether the Minister can justify this delay. The court will undoubtedly look at the length of delay, the explanation for delay, evidence of activity and any Applicant-specific justification or reason why enhanced checks are required in this case.

95. In a challenge of this kind where personal rights are invoked, the Court may consider the necessity for checks (which are not mandated under s. 56 and which may duplicate checks already done under s. 47) in this case. Were the Court to conclude that such checks are not required in all cases but, based on the policy position adopted by the Minister, are sought without a basis on the facts of an individual case and relied upon to excuse delays, the question which then comes into focus is whether checks are justified in this case and the interference with the Applicant’s rights proportionate. If

26 the justification advanced fails, it would be open to the Court to conclude that the Minister has effectively failed to perform the statutory obligation to decide the application under s. 56 of the 2015 Act in a timely manner. The ability of the justification advanced to withstand scrutiny is therefore key to the outcome of these proceedings but effective scrutiny depends on an ability to understand what is meant by general assertions made in opposing relief.

96. It may be inferred from the Opposition papers that the application in this case is the subject of external checks because the Minister maintains that the time taken for completion of checks in this case is outside his control. Noting that the claim in Opposition papers that the time taken is outside the Minister’s control where checks are carried on by “external agencies, departments and bodies”, the fact that such checks are widely defined in the Opposition papers as including checks with divisions of An Garda Síochána but also extending potentially to checks with international external agencies, without a distinction being drawn as to where and by whom the checks in question in this case are being conducted in asserting a lack of control over the time taken, demonstrates the full ambit of the plea.

97. It seems to me that this plea is so broad that it could serve to obscure a proper understanding of the extent to which the Minister is at the mercy of outside agencies as regards timing. While the Minister contends that he has no control over the time taken for checks with external agencies, the inclusion of checks carried out with An Garda Síochána and other Government department and agencies within a claim to have no control over timing in like manner as checks carried out by international agencies, is not sufficiently specific having regard to the potential (at least arguably) differences between the authority of the Minister depending on who is carrying out the checks.

98. The claim to have no control warrants scrutiny in the interests of justice if Minister is to be fairly permitted to distance himself from delays attributable to time taken by some domestic agencies to respond. For example, while it is certainly true that the Minister has no operational responsibility for the Garda National Immigration Bureau and Garda National Vetting Bureau, the two specific Garda divisions identified in the Opposition papers, the position of the Minister in this regard is certainly different from a situation where checks are being conducted with international agencies. Afterall, both the Garda National Immigration Bureau and the Garda National Vetting Bureau are answerable to 27 the Minister for Justice through the Garda Commissioner, who has statutory independence for operational policing but operates under the Minister's legislative and policy framework.

99. Similarly, other Government departments and agencies, where subject to Government and parliamentary oversight, are arguably not in the same arms’ length position as may apply in the case of an international agency. A different view might be taken by a court as to the adequacy of the justification provided for delay depending on which agency is responsible for the checks and the degree to which the Minister, either as responsible Minister or as a member of Government sharing in collective responsibility or not authority at all, might be held accountable in respect of these delays. This being the case, it seems to me to relevant and necessary to establish with more factual specificity who is responsible for making the outstanding checks.

100. In circumstances where the Applicant does not admit that meaningful investigations are ongoing and that any delay is attributable to genuine external checks, then it is not correct to say that there are no facts in dispute in this case. The Applicant contests (or is not yet prepared to admit) the adequacy and reality of the asserted explanation and to this end seeks to establish what steps were taken, when they were taken and what remains outstanding. Once assertions of the type in this case are made, a fair court process and effective access to the courts to vindicate the Applicant’s rights require that they are not insulated from examination. The necessity for interrogatories arises precisely because the Minister has chosen to advance a fact-based justification, thereby putting those facts in issue.

101. Where facts are asserted in vague or general terms in the way which has occurred in this case, the Applicant is entitled to probe how they apply in his case where this is relevant and necessary for a just decision, namely by reference to the facts and circumstances of this case. Insofar as it is contended that the Applicant knows the case to be met, I consider this to be only partially accurate in this case. The Applicant knows the headline grounds of opposition but only outline facts presented in a manner which does not engage in detail with what has occurred and is occurring in his case.

102. Expressions such as “security checks”, “external agencies” and “orderly system” do not disclose what these checks entail, who is conducting the checks, what progress has

28 occurred and what remains to be done. Indeed, insofar as the need to protect cooperation with agencies is cited as an impediment to providing details, it is my experience in these types of cases, similar to when discovery is ordered, is that when a Subject Access Request (SAR) is made, the proper practice is to schedule and describe documentation even when claiming that the documentation is exempt from disclosure obligations on an identified, prescribed basis. Where there is a real sensitivity in this regard, other workaround procedures may be adopted to ensure observance of fair procedures in a proportionate manner in cases raising security concerns. A good example of this is those procedures adopted following the decision of the Supreme Court in A.P. v. Minister for Justice [2019] IESC 47 (which led to the establishment of the Single Member Procedure in 2020) when it was established that properly privileged communication was at issue.

103. In the circumstances, I cannot conclude, based on what has been asserted on affidavit in vague and general terms, that there is a legitimate concern in this case based on the need to safeguard co-operation with unidentified agencies which would prevent the Minister responding. If the Minister has a legitimate basis for asserting privilege, this can be done on affidavit and in a manner which allows for further assessment of the privilege asserted and the basis for same, including on affidavit in answering interrogatories. If necessary, where a claim in privilege is duly established, a bespoke process by which an independent assessment can be made as to whether any version of the information over which privilege is asserted could be provided in a way which would not affect State interests can be considered as contemplated by the Supreme Court in A.P. Indeed, a precedent already exists for processes which enable the independent examination of sensitive, security information in the form of the Single Person Committee of Inquiry into refusals of naturalisation established following the decision in A.P. and subsequently, the Office of the Independent Examiner of Security Legislation established under the Policing, Security and Community Safety Act, 2024.

104. Where a respondent relies on general processes to justify delay, it must be open as a matter of fair procedures for the Applicant to obtain basic factual clarification of those processes. In the circumstances, I cannot accept as fair or accurate the characterisation of the request for answers as a “fishing expedition” where the interrogatories are

29 confined to the Minister’s pleaded opposition and directed to identified factual assertions.

105. I do not agree that interrogatories should not be used to probe or test affidavit evidence in advance of a hearing, as the Minister appears to contend as a general proposition. In judicial review proceedings, the hearing is normally conducted on affidavit and unless clarification of relevant factual issues is pursued on an application of this nature, there will be no opportunity to test the evidence further at hearing.

106. Unlike the position in McCarthy v. Veterinary Council of Ireland, the Opposition papers in this case relies on general assertions without specifically engaging with the facts in the Applicant’s case in a manner which necessitated the intervention of the court in directing answers to the interrogatories raised. RAS Medical Ltd. [2019] 1 I.R. 63, [2019] IESC 4 cited in McCarthy, emphasises the importance of testing affidavit evidence but the ratio is not confined to testing or probing that evidence by cross- examination and in this case, where there is an informational symmetry, the most appropriate way for the evidence to be tested is by requiring more specific engagement with the facts through the delivery of interrogatories. The outcome of the case should not rest on whether a court rejects the opposition advanced as being vague where the grounds of opposition advanced may well withstand interrogation and provide a sound basis for opposing the relief sought because unchallenged. Answers to interrogatories ensure that the decision of the Court ultimately is properly grounded in the facts of this case and justice is administered based on the real position rather than the position presented through an adversarial process where a litigation advantage is conferred on one side because access to relevant and necessary information is not even or equal.

107. On behalf of the Minister, counsel has not engaged with the terms of each interrogatory in turn. Instead, objection is taken on a global or general basis rather than with regard to the specifics of any one request. While I do not have the benefit of the Minister’s position on each interrogatory in turn, I have considered each one in turn to see if it is appropriate to direct an answer on affidavit. In my view, each of the interrogatories raised are properly framed and suitable for yes/no answers or short factual responses. As I read them, they properly seek facts (not evidence or opinions) and they properly focus on matters exclusively within the Minister’s knowledge.

30 108. I am satisfied that most of the interrogatories seek to translate vague or general assertions (“security checks”, “ongoing investigation”, “orderly and rational system”) into concrete facts which identify what has actually been done in this case, what remains outstanding and why this case is delayed. In this way, the interrogatories do no more than seek to test the positive grounds of opposition asserted on behalf of the Minister in generally vague and non-specific terms in a manner which I consider to be legitimate to ensure a fair disposal of the issues arising in these proceedings. This is precisely the type of case for which the procedure of interrogatories was developed and extended to permit justice to be done and rights to be vindicated in litigation as necessary to avoid difficulties created by an informational asymmetry. This rebalancing of the scales of justice is achieved by allowing parties to secure information, relevant and necessary to the fair determination of the issues in the proceedings, from their opponents to assist in establishing their case.

109. It is my view that in the main, most but not all the interrogatories relating to “security checks” are advanced in a plain effort to seek to turn the assertions made into measurable facts. Without interrogatories, the apprehension on the Applicant’s side that there is a risk that it would be open to a court to conclude that the fact that security checks are ongoing amounts to a complete justification is not without substance. It is possible, however, that with fuller information as to when they started, who is conducting them, what exactly remains outstanding and what has been done since, could allow the Applicant to show little or no activity or follow up such that a court might conclude that delay was unjustified despite the fact that all checks may not have been completed. Depending on what agency is responsible for carrying out the checks, it is also possible that the assertion that the time taken is outside the control of the Minister will not withstand scrutiny as a justification for delay in this case.

110. I have considered each interrogatory in turn. I am satisfied that many of the interrogatories raised are necessary for the fair disposal of the proceedings because they are directed to the factual basis of the Minister’s justification for delay, without which the Court would be asked to determine the case based on unparticularised and untested assertions. Most of the interrogatories raised go to the core facts underpinning the opposition to these proceedings and directly to the material issue in dispute, namely whether the delay is justified. By and large, the interrogatories raised do not seek 31 unrelated material but respond directly to what the Minister has chosen to plead. As such, requiring answers to interrogatories is legitimate as a means of testing the factual foundation of the Minister’s own case.

111. The answers to interrogatories which I will direct the Minister to respond to are interrogatories which I consider can support the Applicant’s case by allowing him to test broad assertions to establish whether the delay in this case is necessary and proportionate. They also allow the Applicant, depending on the facts disclosed, the ability to expose potential gaps, inconsistencies or inactivity in the Minister’s explanation thereby strengthening the case he makes or weakening the Minister’s opposition to the relief claimed. While it would be open to the Applicant to pursue discovery for the same purposes, I am satisfied that the more appropriate, cost effective and time efficient approach is to direct answers to relevant and necessary questions raised by way of interrogatory.

112. I have decided to direct a response to all interrogatories nos. 1 to 12. Interrogatories from 1 to 12 are directed to the timing and initiation of security checks. These interrogatories have as their apparent purpose the establishing of a clear timeline of actions taken. The Minister is asked to confirm the date on which the Applicant’s case was first referred for security checks, whether that referral occurred in or around September, 2024 (it being averred that there was a referral at that time), whether any further or subsequent referrals were made and the dates of any follow-up requests or reminders (Nos. 1 to 2, 7 and 8). While it is pleaded that a referral was made in or about September, 2024 and the Department has “followed up on a number of occasions”, no detail is given as to whether only one referral was made or as to when follow up occurred.

113. The Minister is also asked to identify the agencies involved in checks and specifically whether An Garda Síochána were involved, if so, which unit or division; whether other Government Departments or agencies were involved and whether any external or international bodies were consulted (Nos. 3 to 7). It is noted in this regard, as set out above, that the Minister opposes these proceedings on the basis or “engagement with other Departments and agencies” and external security processes over which he has no control. The Statement of Opposition further asserts that the application is being processed within an “orderly and rational system” while also pleadings that checks are 32 carried out by An Garda Siochana (who may seek assistance) (para. 7 of Statement of Opposition), whereas on Affidavit it is averred that security checks can involve examination by the Department and engagement with other departments and external agencies, suggesting that these checks are conducted by the Department rather than An Garda Síochána. The responses to these queries would demonstrate who is carrying out the checks. This is relevant to the degree of control which the Minister has over the length of time the process takes and whether it is justified to wait for the response from a particular agency, when responses have already been received from others.

114. The Minister is asked further questions directed to the status of checks and outstanding steps, specifically, whether any responses remain outstanding, whether all required responses have been received, whether the application is awaiting a single outstanding check or multiple inputs and specifically whether any response is outstanding from any agency outside the State (Nos. 5 & 12). These questions are directed to establishing whether delay is by reason of a real and active investigation or simply asserted in reliance on a formality, perhaps in relation to a check already carried out as part of the Applicant’s application for international protection (under s. 47(3) of the 2015 Act or otherwise) in circumstances where it is positively pleaded that the application is “being actively investigated”.

115. Insofar as the Minister is asked about the nature of the checks and asked to confirm whether the checks are standard in all applications or specific to this Applicant and whether any risk factor particular to the Applicant triggered enhanced checks (Nos. 9 & 10), the purpose of these questions would appear to be to allow for an assessment of whether the case is exceptional or routine. The Opposition papers are unclear in this regard. On the one hand, it is contended that security checks external to the Department occur “if necessary” (para. 16 of the Affidavit of P. O’Moore), whilst on the other hand, it is pleaded that the Minister is “precluded” from deciding on this application at this time (para. 8 of the Statement of Opposition) without identifying what, if anything, about this case makes checks “necessary”.

116. Whether the response to interrogatories shows that these checks are standard or triggered by something specific to this Applicant is relevant to whether checks occur in all cases, such that delay is system-wide and not justified by this Applicant’s

33 circumstances. If the response shows that delay is caused by administrative backlog, not legality of the individual case, a court may be more willing to intervene. If checks are not required in every case, then it follows that the Minister’s position (“cannot decide”) is not absolute and some further explanation as to why checks are required in this case may be required to properly justify ongoing delay. However, if checks are required in every case so that the Minister may “satisfy himself that no national security concerns arise” (para. 17 of Affidavit of P. O’Moore), regardless of the circumstances, this raises other issues as to whether such a blanket policy may be disproportionate and not justified.

117. The Minister is also asked about the process and system for conducting checks, specifically, whether there exists a system or policy governing security checks, when that system was introduced or implemented and how cases are processed within that system including the average time taken for Garda Síochána security checks (Nos. 11 in conjunction with other questions). The apparent purpose of these requests is to test the pleaded claim of an “orderly and rational system” and to elicit the factual content behind this plea.

118. Interrogatories are raised at Nos. 13 and 14 regarding confidentiality of the Applicant as a refugee (and therefore benefitting from protections under s. 26 of the 2015 Act) and the Minister is asked whether the Applicant’s refugee status is disclosed to any third parties and whether there are policies or safeguards in place to protect confidentiality. It is unclear to me how these queries are relevant to the delay issue arising in these proceedings. They appear to be directed to the legality and safeguards of information sharing implicit in pleaded checks. For this reason, I will not direct a response to Nos. 13 and 14.

119. In the balance of the interrogatories, the Minister is asked about duration and performance of checks, specifically the average time taken for security checks during 2024 and 2025 (No. 15), with the apparent purpose of comparing general processing times and the delay in the Applicant’s case and assessing the response in terms of the provision of additional resources (nos. 16 and 17), considerations relevant to the existence of an orderly and rational system and responsibility for delays. The Minister is asked whether positive decisions have ever issued before completion of check (Nos. 18 and 19), apparently to test whether completion of checks is truly mandatory or a 34 policy choice being relied upon to justify delay without anything specific on the facts of this case, relevant to the proportionality of ongoing delay in this case having regard to the basis for the checks. This is placed in issue by the pleaded position of the Minister that no decision can issue until checks are completed and it seems to me that fairness requires that the Minister be required to respond to the interrogatories from nos. 15 to 19.

120. It is my view that the answers which I direct are necessary to permit justice to be done and rights to be vindicated through effective access to the Court, inter alia, by assisting the Applicant to prove facts that might otherwise be difficult to prove and to undermine the justification advanced on behalf of the Minister for delay should a closer testing of the facts support a conclusion that the systems operated are neither rational nor orderly or give rise to a disproportionate interference with rights, perhaps in light of information already available to the Minister.

CONCLUSION

121. For the reasons given, I am directing answers on affidavit to each interrogatory in the schedule hereto except for nos. 13 and 14. To be clear, there is no requirement to answer nos. 13 and 14. I will hear the parties in relation to the finalisation of orders and any outstanding matters.

35 Schedule

Interrogatories

1. Is it the Respondent's position that the 'final immigration checks' referred to in correspondence dated 30 October 2025 are the same as, include, or are materially comprised of the 'security checks' referred to in the statement of opposition and the verifying affidavit?

2. On what precise date was the Applicant's application first referred for security checks?

3. Did the security checks in the Applicant's application involve any referral to, or engagement with, any Government department other than the Respondent's own department?

4. If the answer to interrogatory no. 3 is yes, please identify each such department and the date on which the Applicant's application was referred to or raised with it.

5. Is any information or response presently outstanding from any Government department, other than the Respondent's own department, arising from any referral or engagement made in respect of the Applicant's application?

6. Was the Applicant's application referred to the Garda Síochána for the purpose of security checks?

7. If the answer to interrogatory no. 6 is yes, please identify the unit, section or office within the Garda Síochána to which the Applicant's application was referred, and the date of such referral.

8. On what precise date or dates did the Respondent follow up in relation to the outstanding security checks in the Applicant's application?

9. Was the Applicant's application referred for security checks as a matter of standard practice

36 applicable to applications under section 56 of the International Protection Act 2015, or because of any feature specific to the Applicant's application?

10. If the answer to interrogatory no. 9 is that the referral was because of a feature specific to the Applicant's application, please identify that feature.

11. On what date did the Respondent first put in place the system or practice for making requests for security checks to the Garda Síochána in respect of applications under section 56 of the International Protection Act 2015?

12. Is any information or response currently outstanding from any agency outside the State in respect of the Applicant's application?

13. In the course of any security checks relating to the Applicant's application, was any request for information sent, directly or indirectly, to any agency outside the State which identified, expressly or by necessary implication, the Applicant as a beneficiary of international protection?

14. Does the Respondent have in place any policy, protocol or practice intended to prevent disclosure of the Applicant's status as a beneficiary of international protection in the course of security checks and, if so, please identify the same by title and date.

15. Please identify the average time taken for Garda Siochana security checks in applications under section 56 of the International Protection Act 2015 during 2024 and 2025.

16. Please state whether, from l January 2024 to date, any additional resources, including human resources, have been allocated to the Family Reunification Unit of lmmigration Service Delivery by reason of the increase in applications referred to in the verifying affidavit.

37 17. If the answer to interrogatory no. 16 is yes, please identify the additional resources, including human resources, allocated and the date or dates on which such allocation occurred.

18. Please confirm whether a positive decision has ever issued on an application made under section 56 of the International Protection Act 2015 in the absence of the return of security checks.

19. Please confirm whether a positive decision has ever issued on an application made under section 56 of the International Protection Act 2015 in a case where no request for security checks was made.

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