IEHC 422 — IEHC 422 — High Court

[2026] IEHC 422

THE HIGH COURT JUDICIAL REVIEW Record No. HJR 2024/671

BETWEEN AS Applicant -and-

CHIEF INTERNATIONAL PROTECTION OFFICER -and- THE MINISTER FOR JUSTICE Respondents -and-

THE INTERNATIONAL PROTECTION APPEALS TRIBUNAL Notice Party

JUDGMENT of Ms Justice Sara Phelan delivered on the 30th day of June 2026

TABLE OF CONTENTS

Introduction .............................................................................................................................. 2

Statutory Framework .............................................................................................................. 2

Factual Background................................................................................................................. 5

Procedural Background .......................................................................................................... 8

Discussion................................................................................................................................ 12

Conclusion .............................................................................................................................. 59

Costs ........................................................................................................................................ 59

Page 1 of 60 Introduction

1. This judgment concerns an International Protection Office report/determination which recommended that the applicant, who was seeking international protection, be granted neither a refugee declaration nor a subsidiary protection declaration. The basis for such recommendation was a relatively net one, in that the International Protection Office did not accept – for stated reasons, which are discussed further hereunder – that the applicant was from Afghanistan and the applicant’s nationality being fundamental to the applicant’s credibility, his application for international protection was not assessed any further by the International Protection Office.

2. The applicant seeks an order of certiorari quashing the International Protection Office determination. For the reasons set out hereunder, the reliefs sought by the applicant are granted, albeit not on every ground pleaded by the applicant.

3. In this judgment, by reason of s.26(2) of the International Protection Act 2015 which provides that “A person shall not, without the consent of the applicant, publish in a written publication available to the public or broadcast, or cause to be so published or broadcast, information likely to lead members of the public to identify a person as an applicant”,

the identity of the applicant has been anonymised and any potentially identifying information has been presented in a manner which precludes the identification of the applicant.

Statutory Framework

4. The International Protection Act 2015 (the “Act”) transposed a number of EU asylum Directives into Irish law, creating a single application procedure for refugee status and subsidiary protection. One of those transposed Directives, Council Directive 2004/83/EC (the “qualification Directive” or the “2004 Directive”), laid down minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise require international

Page 2 of 60 protection and the content or extent of the protection granted. This Directive was ‘recast’ at EU level in 2011 by way of Council Directive 2011/95/EU (the “recast Directive”), but Ireland has chosen not to ‘opt in’ to this recast Directive and the 2004 Directive continues to have application in the State through the Act, in circumstances where the 2004 Directive itself is no longer applicable, having been repealed at EU level by the recast Directive.

5. Council Directive 2005/85 EC (the “procedures Directive” or the “2005 Directive”), the purpose of which was to establish minimum standards for procedures within EU Member States for granting and withdrawing refugee status, was also transposed by the Act. Again, whilst this Directive has generally been replaced by Directive 2013/32/EU (the “2013 Directive”), Ireland has not adopted the 2013 Directive and the 2005 Directive continues to apply in the State, through the Act.

6. Section 2 of the Act, in line with Article 2(c) of the qualification Directive, defines “refugee” as: “a person ….. who, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, political opinion or membership of a particular social group, is outside his or her country of nationality and is unable or, owing to such fear, is unwilling to avail himself or herself of the protection of that country [of nationality] …..” (emphasis supplied)

and thus, and of particular relevance to the present case, a determination on nationality is pivotal in an assessment for international protection.

7. Part 4 of the Act governs the assessment of applications for international protection and, more specifically, s.27 of the Act (“Duty of applicant to cooperate”) and s.28 of the Act (“Assessment of facts and circumstances”) largely represent the transposition of Article 4 (“Assessment of facts and circumstances”) of the qualification Directive. Section 28(1) mandates an international protection officer to assess “the relevant elements of [an] application”, in co-operation with an applicant. Section 28(3) stipulates that the relevant elements of an application consist of an applicant’s statements and all the documents submitted by an applicant regarding that applicant’s:

Page 3 of 60 “(a) age, (b) background, including that of relevant relatives, (c) identity, (d) nationality or nationalities, (e) country or countries, and place or places, of previous residence, (f) previous asylum applications, whether made in the State or outside it, (g) travel routes, (h) identity and travel documents, and (i) reasons for applying for international protection” (emphasis supplied)

whilst s.28(4) sets out a non-exhaustive list of the matters to be taken into account by the international protection officer in the assessment, including: “(a) all relevant facts as they relate to the country of origin at the time of taking a decision on the application, ….. (b) the relevant statements and documentation presented by the applicant including information on whether the applicant has been or may be subject to persecution or serious harm; (c) the individual position and personal circumstances of the applicant, including factors such as background, gender and age, so as to assess whether, on the basis of the applicant’s personal circumstances, the acts to which the applicant has been or could be exposed would amount to persecution or serious harm; ….. (f) the general credibility of the applicant.” (emphasis supplied)

8. Of further note, in the context of the present case, is that s.28(5)(a) then provides that: “In the assessment of an application, an international protection officer shall, in the case of an applicant who was a child at the time of a relevant occurrence or at any time during which a relevant circumstance existed, take account of the applicant’s age at that time and the level of understanding that could reasonably be expected of a child of that age.”

9. Part 5 of the Act governs the examination of applications for international protection at first instance (i.e., to the International Protection Office – the “IPO”), and such examination, which includes a personal interview with an applicant, is subject to the matters stipulated in Part 4, as (partly) referred to at §7 above. Following such examination, the international protection officer then prepares a report pursuant to s.39 of the Act and that report recommends, in line with s.39(3) that:

Page 4 of 60 “(a) the applicant should be given a refugee declaration, (b) the applicant should not be given a refugee declaration and should be given a subsidiary protection declaration, or (c) the applicant should be given neither a refugee declaration nor a subsidiary protection declaration.”

In the present case, the report recommended that the applicant should be given neither a refugee declaration nor a subsidiary protection declaration and it is this report/determination (the “determination”) that is impugned in these proceedings.

Factual Background

10. The applicant, who was born in March 2002, was in his late teens when he left Afghanistan in March 2021. Upon arrival in Ireland in October 2022, he applied for international protection. In the course of his application, the applicant completed a standard form questionnaire on 09 November 2022, and he was subsequently interviewed by the IPO on 11 January 2024, with a report pursuant to s.35(12) of the Act (i.e., a report in writing of the interview) issuing on the same date. In the context of the application to the IPO, the applicant provided inter alia a copy of his national identity document/Tazkira (also referred to as ‘Tazkera’ or as ‘Taskera’, but referred to as ‘Tazkira’ throughout this judgment unless a quotation is taken directly from another source), together with a copy thereof translated by Word Perfect Translations.

11. Thereafter, the IPO issued a draft report pursuant to s.39 of the Act on 29 February 2024, followed by the determination (also pursuant to s.39 of the Act), on the same date. The determination set out a list of the documentation submitted by the applicant in support of his application – some, but not all, of which said documentation was also referenced in the s.35 report, and the precise wording of the determination, under the heading “Documentation” at p.2 and p.3 was: “In support of his application, the applicant submitted documentation which included: ➢ Afghan National Identity document (Tazkira), [named number] issued on 31/10/2020 (Pashto and English versions) – copy ➢ Driving Licence Ireland – copy ➢ Envelope addressed to applicant – copy

Page 5 of 60 ➢ Parcel tracking number – copy ➢ NDLS Driving Licence Eyesight Report Form, dated 15/04/2023 – copy ➢ Driver Theory Test Certificate, dated 11/04/2023 – copy ➢ Permission to access the labour market, valid 09/05/2023-09/05/2024 – copy ➢ Private Security Authority card (front and back), expiry 21/06/2026 – copy ➢ Security Institute notification of preliminary results, dated 09/04/2023 – copy ➢ Safe Pass confirmation of attendance, dated 09/05/2023 – copy ➢ Medical certificate x 2, signed [named individual] – copy ➢ Garda report, dated 27/11/2023 – copy ➢ Payslips dated December 2023 - January 2024 x 3 – copy ➢ Employment confirmation email from SAR/MCR Security Group, signed [named individual], dated 09/01 – copy ➢ Reference letter from Cross-Cultural Conversations, signed [named individual], dated 08/01/2024 – copy ➢ Cine World Unlimited membership confirmation – copy ➢ Legal submission from applicant’s legal representatives, Law Centre (Smithfield), in support of applicant’s application for international protection and permission to remain, dated 01/02/2024

All of the documentation provided by the applicant (including the documentation listed above) has been fully considered.”

12. Having noted certain aspects of the Act (i.e., the legal basis for the assessment and various definitions as provided for at s.2 of the Act), the determination then dealt with the applicant’s nationality and stated: “The applicant claims to be a national of Afghanistan. For the purpose of this report, it is not accepted on the balance of probabilities that the applicant is a national of country Afghanistan for the following reasons:”

and the detailed reasons given by the IPO for rejecting the applicant’s claim as to nationality may be summarised as follows: a. the applicant failed to provide sufficient detail or specificity in relation to the area he claimed to be from and/or in which he claimed to have lived and worked and, when given an opportunity to respond or elaborate at interview, the applicant failed to provide sufficient detail; b. the applicant’s answers regarding the area in which he claimed to have lived were not externally consistent with the Country of Origin Information

Page 6 of 60 (“COI”) which was put to him at interview and fundamentally affected the credibility of his claim, in that the applicant’s responses as regards: i. attending school/English language classes were inconsistent with COI and did not support the external consistency of his account or his credibility; ii. who was in charge of his village were not externally consistent with COI on the area in which he claimed to have lived and his answer did not provide sufficient detail; iii. his description of houses in his village being burnt was not externally consistent with COI; and c. the applicant provided documents which could not be verified by the IPO and had little probative value.

13. The determination then concluded: “Ultimately, the applicant failed to provide sufficient detail on the area he claimed to live and work, and when this was put to the applicant and he was given an opportunity to respond, he further failed to provide sufficient detail. The applicant’s answers regarding his area which he claimed to live were not externally consistent with the COI which was put to him and fundamentally affected the credibility of his claim. The applicant provided documents which could not be verified by the IPO and therefore have little probative value. For the above reasons the applicant’s claim that he is from Afghanistan is not accepted on the balance of probabilities. As I have rejected the applicant’s asserted claim as to nationality the applicant’s credibility as to the very core of the claim is rejected. The establishment of the country of origin of an applicant is fundamental to the assessment of a claim for international protection because it is otherwise impossible to determine whether the claimant is outside that country owing to a Convention based fear of persecution or to establish whether substantial grounds exist for believing that, if returned to that county, he/she would face a real risk of suffering serious harm. There is, therefore, no basis to further assess this application for international protection”,

the net result of which was that the applicant’s claim was not assessed any further and his application for international protection was rejected. This determination was notified to the applicant by way of letter dated 22 April 2024.

Page 7 of 60 14. For completeness-sake, it should be noted that the letter of 22 April 2024 also informed the applicant that he was being refused permission to remain (“PTR”) pursuant to s.49 of the Act but for the reasons as set out in this paragraph, this judgment does not concern such, or any, PTR refusal. Following correspondence from the applicant’s solicitor dated 02 May 2024, the applicant’s solicitor was advised by email dated 09 May 2024 from the IPO that “having considered the matter and, as an exceptional measure, we will offer to withdraw the Section 49 report dated 12/03/2024, made in respect of your client, and carry out a fresh consideration of your client’s application.” The applicant was subsequently advised by letter dated 18 December 2024 from the IPO that a decision had been taken to withdraw the refusal of PTR and that a “further recommendation letter in relation to the decision to refuse you permission to remain in this State pursuant to Section 49(4)(b) of the Act will be issued to you in due course.” And, in fact, on the same date, 18 December 2024, the applicant was separately advised that he was not to be given PTR and that in coming to that decision, his application had been considered under s.49 of the Act and that consideration had also been given to his private and family rights under Article 8 of the European Convention on Human Rights.

Procedural Background

15. The applicant sought leave (on an ex-parte basis) to apply for judicial review on 22 July 2024 and on that date, Hyland J granted the applicant leave to apply inter alia for an order of certiorari quashing the determination. The applicant also sought an order of certiorari quashing the determination by the Minister dated 12 March 2024, and as notified by letter dated 22 April 2024, refusing the applicant PTR but, as noted at §14 above, this first refusal of PTR was withdrawn prior to the ex-parte application for leave being made and thus this relief was not pursued by the applicant at hearing. The applicant also sought an order extending the time within which the application for leave to apply for judicial review might have been made and it is clear from the order of Hyland J that leave was granted “[w]ithout prejudice to the determination at the substantive stage of any point which could have been contended for by the Respondent at the leave stage including any point in relation to time limits for the bringing of this application.” However, the

Page 8 of 60 necessity for an extension of time did not feature in either party’s submissions to the Court and further, it was not argued against on behalf of the respondents at hearing, and in the circumstances does not fall to be determined by me.

16. The application for leave was supported by a statement of grounds dated 17 May 2024, grounded upon affidavit of the applicant sworn on 16 May 2024 (relevant portions of which are referred to hereunder), in addition to an affidavit made by the applicant’s solicitor (primarily dealing with the requirements of practice direction HC81), also sworn on 16 May 2024. Pursuant to the order of Hyland J, the applicant filed and served a notice of motion on the respondents, returnable for 14 October 2024 and thereafter, the respondents filed a statement of opposition dated 21 January 2025, which was verified by affidavit of Kevin Brady, sworn 16 January 2025.

17. The legal grounds, as set out on the statement of grounds, upon which the applicant sought the order of certiorari quashing the determination may be broadly summarised as follows, in that the IPO: (i) in failing to take account of the copy of the applicant’s Tazkira, acted in breach of constitutional justice and fair procedures and s.28(2) and s.28(3) of the Act and/or acted unreasonably and/or in breach of the obligations under s.28(4)(b) and/or s.39(2)(a) of the Act; (ii) in failing to have any, or adequate, regard to the applicant’s age at the relevant time, acted in breach of s.28(5)(a) of the Act and/or acted unreasonably; (iii) by determining that the applicant’s evidence was inconsistent with COI, acted irrationally, in breach of procedural fairness and failed to have regard to relevant consideration and acted in breach of s.28(4) of the Act; (iv) in failing to take any, or any adequate account of the applicant’s evidence, and in finding that the applicant had failed to provide sufficient detail on the area he claimed to be from, acted in breach of fair procedures and the duty of mutual cooperation; and (v) in failing to take account of all of the evidence and in only assessing the applicant’s nationality and determining that the applicant was not a national of Afghanistan, unlawfully deprived the applicant of a complete

Page 9 of 60 first-instance decision, in breach of procedural fairness, since the analysis by the IPO did not continue to consider or assess the substance of the applicant’s claimed persecution (arising from threats from the Taliban, relevant to a refugee declaration) and serious harm (arising from the armed conflict in Afghanistan, relevant to a subsidiary protection declaration).

18. These legal grounds inform the discussion hereunder and, from the applicant’s perspective, are supported by matters averred to in the applicant’s affidavit sworn on 16 May 2024 (the “affidavit”). In this affidavit, and as regards his initial application to the IPO, the applicant averred inter alia that he: - “….. provided a copy of my Pashto Afghan identity card (Taskera) and a Word perfect translation that I had obtained myself to the IPO when I handed in my questionnaire in person to the IPO ….. My Taskera states on it that I am from [named village, named district] in Nangahar [sic]. It states that my nationality is Afghani. It was not accurate for the IPO to say that the documents I submitted do not support my claim. This is the best form of identity I could get from Afghanistan. My region has been involved in conflict after conflict since I can remember. Obtaining official documents in my area is very difficult.” - “….. was 19 years old when I left Afghanistan. At my interview, I was asked a lot of questions about the area and who was in control. I was asked who was in charge of the village. I provided two names: [named local leaders] ….. These were village elders. I do not understand what I got wrong and why this was used as a reason to say I was not telling the truth. After I received the decision, I saw the references to the [named COI] reports at the end of the section 39 report. This was never provided to me before the decision issued. It was just discussed at interview. I was never given the opportunity to read the newspaper articles before or during the interview. One of the reports from the Guardian entitled [named article] ….. mentions one of the village elders I named and he is quoted. “The whole landscape is marked by drone strikes,” said [named local leader], 50, one of the village elders. “Many of us left the area when Daesh [the Arabic-language acronym for Isis] took control. Bombs were dropped on a regular basis.” - “….. was asked a lot of questions about my area and region, and I answered to the best of my ability. The interviewer was very focussed on one article that said all schools were closed down by ISKP. My school stayed opened and I studied until 2016. Then I studied English for a few years. The IPO decided that I was not telling the truth because it found one report entitled: [named report] which stated that ISKP had closed public schools. That same report notes that: In terms of ethnicity, Pashtuns of the Shinwari tribe

Page 10 of 60 constitute the overwhelming majority of the population. I spoke Pashto at the interview. I explained that I am of the Shinwari ethnic group, ….. ” - “The IPO appears to think that everything in [named region] was under the total control of ISKP since 2015. This is not the case. The region has struggled with a lot of conflicts and it is not that simple. Another article, entitled [named article] ….. (which was not before the IPO) states that: After heavy fighting with ISK fighters, by May 2017 around 50% of [named valleys] fell back into coalition forces control. The IPO relied upon a report entitled [named report] ….. Again, the village elder I mentioned is quoted in the article: “But we’re broken and there’s little hope,” said [named local leader], 50, one of the elders. That same article also mentions that the school was destroyed in the village but this was not my school in [named village]. I finished school in or around 2016 and studied English after that.” - “Because the IPO, unfairly, did not accept my nationality, I have never had a consideration of my fears of the Taliban, my fears because of the armed conflict in Nangarhar province ….. The situation in my home province of Nangahar [sic] is dire. In the submissions made by my solicitor to the IPO ….. a report from the EU Asylum Agency dated January 2023, is referenced and entitled ‘Afghanistan – Country Guidance: Afghanistan ….. Although it does state that the violence in Nangahar [sic] is not as bad as some areas in Afghanistan, it also states that: The UN Secretary General identified Nangarhar Province as one of the four most conflict affected provinces in Afghanistan in the period between 19 August and 21 May 2022. The IPO never considered whether I would be at risk from the conflict because it did not accept my nationality.”

19. The statement of opposition raised two matters by way of preliminary objection, being that: a. the applicant had available to him an appeal to the International Protection Appeals Tribunal (the “Tribunal”) from the determination of the IPO and that he should have pursued that appeal as opposed to seeking certiorari of the first-instance determination and that he had not established any basis for the Court to exercise its discretion to grant relief in respect of a first-instance decision on an exceptional basis; and b. the first refusal of PTR was withdrawn prior to the ex-parte application for leave being made and, as such, the pleaded relief sought was moot.

Page 11 of 60 20. It should be noted, as regards the first preliminary objection as set out at §19.a above, that the applicant preserved his position vis-à-vis an appeal to the Tribunal by submitting a notice of appeal in compliance with the relevant time limits, but he also averred at §13 of his affidavit, presumably in support of his application for certiorari of the IPO determination, that he was advised that he did not have a fair first-instance determination in relation to his claim for international protection. This preliminary objection and the availability of judicial review as regards a first- instance decision is discussed hereunder from §24 onwards.

21. The second preliminary objection as set out at §19.b above was met by the fact that the applicant did not pursue this relief at hearing, albeit that no explanation – beyond acting out of an abundance of caution – was forthcoming on behalf of the applicant at hearing as to why the relief was sought in the first place, particularly in circumstances where the applicant’s solicitor had advised the IPO by letter dated 14 May 2024 that they were “happy that you have agreed to withdraw the s.49 report and we’d be obliged if you would furnish us with that updated s.49 report as soon as possible” and that “given your position, our client has decided to proceed with judicial review of the s.39 report and the proceedings will issue in the coming days.” In support of this preliminary objection, it was averred on behalf of the respondents in the affidavit of Kevin Brady that “the Applicant’s case in respect of the section 49 decision was moot at the date of issuing of proceedings and that submissions will be made at hearing as to the implications of this.”

22. Save as for the preliminary objections, the statement of opposition is largely – but I accept, not exclusively – a denial and traverse of the matters pleaded in the statement of grounds and is discussed in greater detail, where appropriate, hereunder.

Discussion

23. Counsel for the applicant, by way of outline written legal submissions, suggested that there were three issues to be determined by me, as follows:

Page 12 of 60 a. whether the IPO erred in failing to take adequate or any account of the copy of the applicant’s Tazkira from Afghanistan in assessing whether or not he was a national of Afghanistan; b. whether the IPO acted in breach of s.28(5)(a) of the Act and/or unreasonably, in failing to have any, or adequate, regard to the applicant’s age and expected level of understanding, where he was questioned extensively about the political situation and insurgences in his region in Afghanistan from 2015; and c. whether the IPO’s finding that the applicant had failed to provide sufficient detail on the area he claimed to be from is unreasonable in that it did not flow from the narrative provided by the Applicant and the evidence before it, and whether the IPO breached the duty of mutual cooperation.

24. I will deal with each issue in turn below (finding for the applicant on the issue as set out at §23.a above and granting an order of certiorari, but refusing the applicant the relief sought as regards the issues as set out at §23.b and §23.c above) but before addressing these issues, I must address the respondents’ first preliminary objection, being that the applicant had available to him an appeal to the Tribunal from the determination of the IPO and that in circumstances where he had not established any basis for the Court to exercise its discretion to grant relief in respect of a first- instance decision on an exceptional basis, he should have pursued that appeal as opposed to seeking certiorari of the first-instance determination.

25. Whilst, by way of written submissions and oral argument at hearing, counsel for the applicant advocated for a review of the first-instance determination (relying on inter alia SA (Zimbabwe and South Africa) v. CIPO & ors [2024] IEHC 477; ESO v. International Protection Office [2023] IEHC 197; and AE v. CIPO & ors [2023] IEHC 695) and counsel for the respondents argued against such review (relying on inter alia BNN v. Minister for Justice and Equality [2008] IEHC 308; [2009] 1 IR 719; The State (Abenglen Properties) v. Dublin Corporation [1984] IR 381); Z v. Refugee Applications Commissioner & anor [2008] IEHC 36; TA v. IPO & ors [2023] IEHC 390; and MM v. IPO & ors [2025] IEHC 118), it cannot be gainsaid that judicial review of a first-instance decision is only available in very limited circumstances and the decision of the Supreme Court in AB v. CIPO & ors

Page 13 of 60 [2026] IESC 23 on 25 March 2026 has clarified the position in this regard. Albeit that AB was decided by the Supreme Court subsequent to the substantive hearing in the present case, I invited further written submissions from the parties – given the relevance of AB to the respondents’ preliminary objection – which were very helpfully provided by both parties in short course.

26. In AB, the applicant was a Georgian national whose application for international protection had been refused by the Tribunal. Following that refusal, the applicant obtained permission from the Tribunal to make a subsequent application for international protection pursuant to s.22 of the Act, on the basis that he had provided further evidence to support the credibility of his claim and the Tribunal found that in light of that further/new evidence, documentary evidence – being a contemporaneous medical report and two police reports – which had been rejected as nonprobative in the first application may need to be ‘re-evaluated’. This second application was also unsuccessful at first instance (before the IPO) and the applicant sought to judicially review the decision of the IPO, rather than maintain an appeal to the Tribunal, given the claimed significant failures on the part of the IPO to firstly, re-evaluate/consider the earlier documentation and material evidence and secondly, make findings on one of the applicant’s core claims. The applicant was refused leave by the High Court to apply for judicial review and ultimately, the Supreme Court, by way of determination [2025] IESCDET 110, granted leave to appeal on the following issue: “Where an applicant for international protection under the International Protection Act 2015 is dissatisfied with the decision made at first instance on their application, in what circumstances may such an applicant seek judicial review of that decision given the availability of an appeal from that decision to the International Protection Appeals Tribunal under Part 6 of the International Protection Act 2015.”

27. It is not necessary for the purpose of my decision in the present case to delve into the detail of the decision in AB, but it is clear from that decision, per Donnelly J at §91-§92, that judicial review is only appropriate if there has been a breach of fair procedures at first instance such that there has been a “fundamental denial of justice” or a “fundamental flaw in the decision-making process” which goes to “fundamental rule of law standards” and where a statutory appeal would be

Page 14 of 60 inadequate. However, in most cases, the right to an effective remedy under EU law is satisfied by the statutory appeal to the Tribunal (see inter alia §69-§71 of AB), and such appeal is the correct method by which most procedural first-instance defects may be sought to be cured – in other words, the default position is that the alternative remedy (a statutory appeal in the present case) must be exhausted unless it is not adequate or there is a particular exigency in the interests of justice (AB, §88; and as to the exhaustion of alternative remedies, see also Amariei v. Chief Appeals Officer & ors [2026] IESC 22). At §96 of her judgment in AB, Donnelly J stated: “….. when discussing the effectiveness of the appeal to the Tribunal as a remedy, the situation would be different if there was evidence of persistent illegality or of a breach of natural and constitutional justice at the level of the IPO, such that the structure of the international protection process was inherently ineffective and defective ab initio. Only then might judicial review be the proper remedy to secure the entitlement to have one’s claim adjudicated in a functioning system which applies the law. An individual breach (or even a series of individual breaches) is not evidence that the system has failed; it is merely evidence that the system did not work in that particular case. The remedy for such failures of the IPO in individual cases is the fully effective alternative remedy to the Tribunal.”

28. By way of written submissions, the applicant submitted that AB did not preclude the relief sought in the present case and that, properly applied, AB was either: a. distinguishable on the nature of the defect; or b. supportive of the applicant’s position in that it confirmed that judicial review remained available notwithstanding a statutory appeal where the first- instance process involved a fundamental denial of justice/fundamental flaw, or where the case implicated persistent illegality requiring High Court intervention in circumstances where there was persistent illegality/systemic breach such that the structure was “inherently ineffective and defective ab initio” (see AB, §71), and it was the applicant’s position that AB engaged with (and did not overrule) the High Court’s ‘no bright line’ approach reflected in decisions such as AE and ESO, emphasising that the inquiry depended upon the nature of the flaw and whether it undermined the reliability/trustworthiness of the decision on a fundamentally important issue.

Page 15 of 60 29. It is clear from AB that unless there were a systemic issue at the level of the IPO, which resulted in a “fundamental denial of justice” or a “fundamental flaw in the decision-making process” which goes to “fundamental rule of law standards”, the remedy of judicial review was not available to an applicant who was dissatisfied with a first-instance decision. The crux in the present case, as submitted by counsel for the applicant, was that nationality (country of origin) was foundational to the assessment of international protection and in the present case the IPO rejected nationality and expressly stated there was “no basis” to assess the application further. The result of such rejection, and the critical practical difference when compared with AB, was that if the Tribunal were to accept nationality on appeal, the applicant’s claim for international protection would, for the first time, require substantive examination but at appeal stage and this was not what the statutory scheme contemplated as the normal course, and was precisely the kind of exceptional circumstance addressed in the authorities.

30. The respondents submitted that AB put beyond doubt that there was no entitlement from the applicant’s perspective to two hearings of the detail of his core claim and that the statutory appeal to the Tribunal provided a complete and effective remedy at national and EU law, where the ex nunc nature of the appeal entitled the Tribunal to consider documents that were not even before the IPO. And the respondents further submitted that where an applicant had not pleaded that there was any form of persistent illegality at an institutional level and/or sought declaratory relief in relation to same, but had instead pleaded specific alleged illegalities in relation to the facts of the individual case, this was insufficient to warrant judicial review of a first-instance decision, noting that in the present case, no persistent or systemic error on the part of the IPO was alleged by the applicant; nor was any relief sought in respect of any such alleged systemic error.

31. On the forgoing basis, and for reasons that will become clearer later in this judgment, the respondents argued that the proceedings as brought could not be affected by this Court’s subsequent identification of concerns and even if the Court were to consider that there may be a systemic issue in relation to the IPO’s approach to Tazkiras (which the respondents denied), this would not provide a basis for

Page 16 of 60 allowing the applicant to challenge the first-instance decision in his case on the basis that he had pleaded – i.e., it was clear from the statement of grounds that the applicant’s judicial review was premised upon a breach of fair procedures in his particular case and no more. I will return to this objection later, from §87 onwards hereunder.

32. And in response to the applicant’s submissions on the application of AB, the respondents noted that the applicant did not engage with Donnelly J’s conclusion that future reliance on the dicta in Stefan v Minister for Justice [2001] 4 IR 203 – as to there being a requirement for two fair hearings – was “apt to mislead” (AB, §93), in circumstances where a central aspect of the applicant’s asserted entitlement to challenge the first-instance decision in his case was the contention that it would not be sufficient for the Tribunal to consider the balance of the claim for the first time if it accepted his claimed Afghan nationality.

33. Looking back then to the statement of opposition, the respondents based their preliminary objection, as of the date of the substantive hearing, inter alia on the premise – as set out in their written submissions and also by way of oral submission at the substantive hearing – that the applicant had not established any basis for an inference that his Tazkira had not been considered by the IPO. Whilst the applicant had argued that the Tazkira not being accepted as prima facie evidence of Afghan nationality gave rise to an inference that the decision-maker had not considered all documents, this argument was rejected by the respondents, submitting that the applicant’s documents had been fully considered, but were found to have little probative value in circumstances where they could not be verified by the IPO.

34. Thus, in deciding on the respondents’ preliminary objection and in applying AB to the present case as to whether or not judicial review of the first-instance determination was warranted or, indeed, appropriate, I must look to the substance of the judicial review application and, in particular, the first issue as suggested by the applicant.

Page 17 of 60 Whether the IPO erred in failing to take adequate or any account of the copy of the applicant’s Tazkira from Afghanistan in assessing whether or not he was a national of Afghanistan

35. It is clear that an applicant, such as the applicant in the present case, cannot simply claim that the IPO did not consider documentation without producing some evidence (direct or inferential) to the effect that this was so (see, for example, GK v. Minister for Justice [2002] 2 IR 418, per Hardiman J at pp. 426-427; and K v. Minister for Justice [2022] IEHC 582, per Bolger J at §40) and in the present case it is clear from p.3 of the determination that “[a]ll of the documentation provided by the applicant (including the documentation listed above) has been fully considered”. Further, a copy of the applicant’s “Afghan National Identity document (Tazkira), [named number] issued on 31/10/2020 (Pashto and English versions)” was amongst the documentation listed by the IPO, as set out at §11 above.

36. However, there is no further reference whatsoever in the determination to the Tazkira, and indeed there is no further reference to any of the documents provided by the applicant until p.8 of the determination wherein it is stated that “[t]he applicant provided documents which could not be verified by the IPO ….. ”, before going on to conclude that “[f]or the above reasons the applicant’s claim that he is from Afghanistan is not accepted on the balance of probabilities.” Notably, the determination provided no information or insight as to which, if any, of the applicant’s documents were specifically assessed or sought to be verified and, more particularly, the assessment/verification method employed, or why otherwise the IPO could not verify them. But neither is it alleged by the IPO that any of the documents provided by the applicant were forged or were of otherwise dubious provenance, or indeed that in terms of identity, the applicant was not the person he claimed to be. It seems to me that the IPO cannot have it both ways and if the IPO claimed, as it did, that it fully considered the documents provided by the applicant and then wished to rely on the fact that the documents could not be verified by the IPO, the IPO at the very least should have specified, in the determination, firstly, the manner in which the documents were assessed and secondly, the attempts made

Page 18 of 60 to verify named documents or why such named documents could not be verified. Unfortunately, the determination is silent in each of these regards.

37. It is clear is that the assessment of documents is separate to their verification and whilst verification may be part of the assessment process, a lack of verification in the circumstances of any particular case, may or may not render the assessment in that particular case inadequate, depending upon the manner and method of the assessment carried out and the reasons given for accepting or discounting/rejecting documents. And thus, I must look at the assessment in this particular case and arising therefrom, consider whether or not a verification of documents was required to render the assessment adequate and lawful.

38. In stating that the documents could not be verified by the IPO, an initial inference may perhaps be drawn that active steps were taken by the IPO to verify the documents and where, for example, the Tazkira on its face appears to be a valid document, the applicant is entitled to more than a bland statement from the IPO that documents could not be verified by the IPO, noting that there is no specific reference in the determination as to any particular document not being capable of being verified. The respondents do not deny that the Tazkira in a general sense (as opposed to the Tazkira in the present case) is the national identity document for Afghanistan and that being so, perhaps a comparison of the applicant’s Tazkira with a verified/authentic Tazkira could have been undertaken and similarities (or differences) noted in the determination. Counsel for the applicant suggested during the course of the hearing that a particular Tazkira could be verified at one level by looking at its characteristics to see if it had the expected characteristics of a Tazkira, whilst also acknowledging the duty on the respondents to protect the identity of an international protection applicant, thereby precluding the respondents from contacting any form of officialdom in Afghanistan as regards the specific identity of any applicant.

39. The applicant submitted that the failure on the part of the IPO was not simply that the Tazkira was given too little weight, but that the determination did not demonstrate the legally required assessment of a document which was prima facie relevant to the determinative question of nationality and was, in fact, verifiable in

Page 19 of 60 different ways. And if it were the case that the IPO were unable to verify or authenticate the Tazkira, in a manner as understood from the decision of the CJEU in LH v. Staatssecretaris van Justitie en Veiligheid (C-921/19, 10 June 2021) at §61: “….. in so far as a document constitutes evidence produced in support of the application, even if its authenticity cannot be established or its source cannot be objectively verified, the Member State concerned is required, in accordance with that provision, to assess that document in cooperation with the applicant”

then the document still ought to have been assessed and the determination ought to have recorded same. Counsel for the applicant submitted that LH was authority for the proposition that non-verifiability cannot lawfully operate as a categorical reason to exclude the Tazkira from meaningful assessment; rather, it must be assessed “in cooperation with the applicant” and the IPO’s generic statement that the documents “could not be verified by the IPO” does not, without more, disclose compliance with LH where nationality is the decisive issue and where the applicant’s Tazkira is prima facie relevant to that issue. It was further submitted on behalf of the applicant that in accordance with the duty of cooperation, where an applicant submits a document as part of their claim, the decision-maker is obliged to consider it, unless they have a reason to reject it, and it is not a question of the weight to be associated with the document, but rather its existence.

40. In LH, the CJEU also held, albeit in the context of Article 4 of the recast Directive (but noting that there is no substantive difference between the wording of Article 4 in the qualification Directive and the recast Directive), at §44 that: “….. any document submitted by the applicant in support of his or her application for international protection must be regarded as an element of that application to be taken into account, in accordance with Article 4(1) of Directive 2011/95, and that, consequently, the inability to authenticate that document or the absence of any objectively verifiable source cannot, in itself, justify the exclusion of such a document from the examination which the determining authority is required to carry out, pursuant to Article 31 of Directive 2013/32.” (emphasis supplied)

41. There is, of course, a presumption that material has been considered by the decision-maker if the decision-maker states to that effect, in line with the statement

Page 20 of 60 of Hardiman J in GK at p.427 that an applicant must produce “some evidence, direct or inferential” of a claim that “a decision making authority has, contrary to its express statement, ignored representations which it has received” before such applicant can be said to have an arguable case (as followed inter alia by Bolger J in S v. Minister for Justice [2022] IEHC 578 at §37 and by Faherty J in AA & ors v. Minister for Justice [2024] IECA 57 at §97) and it is clear that the IPO stated in the determination that all the documentation provided by the applicant had been fully considered.

42. However, the applicant’s Tazkira (as translated) indicated that the applicant was from the Province of Nangarhar, District of [named district] and Village of [named village], and that he spoke Pashto, all of which are recorded on the face of the Tazkira and all of which accord with the details provided by the applicant to the IPO at interview on 11 January 2024 and as evidenced in the s.35 report (albeit that there is an anomaly contained in the applicant’s answer to Q.5 at interview where he stated that his village was [named village], which was another village situated in the valley, this valley carrying the same name as the village named on his Tazkira, and he provided some description of this distinct and separate village at interview). In these circumstances, it seems to me that without more detail or information as to how the Tazkira was considered or assessed by the IPO, an inference (that the Tazkira was not properly considered, or assessed) may be drawn from the bland finding by the IPO that the documents “could not be verified by the IPO and therefore had little probative value” and such inference then permits greater scrutiny as to whether or not the Tazkira was actually considered or assessed, independently of ‘verification’.

43. This is all the more important when a decision-maker such as the IPO is obliged to assess documentary evidence, along with credibility, and as noted by Cooke J in IR v. Minister for Justice [2009] IEHC 353; [2015] 4 IR 144 at principle 9 of his oft-quoted principles (see §10 of the initial decision on 24 July 2009): “where an adverse finding involves discounting or rejecting documentary evidence or information relied upon in support of a claim and which is prima facie relevant to a fact or event pertinent to a material aspect of the credibility issue, the reasons for that rejection should be stated”.

Page 21 of 60 In the present case, I am of the view that the reason/s relied upon by the IPO (that the documents could not be verified by the IPO and had little probative value) were not sufficient in the circumstances and arising therefrom, the finding by the IPO (that the applicant’s claim that he was from Afghanistan was not accepted on the balance of probabilities) was not sustainable. Curiously, and whilst the wording of the draft s.39 report and the actual s.39 report are practically word-for-word identical, there is a subtle difference in the reasoning at p.8 of both reports and whilst the draft report concluded that: “The applicant provided documents which could not be verified by the IPO and do not support his claim. For the above reasons the applicants [sic] claim that he is from Afghanistan is not accepted on the balance of probabilities”,

the final report/determination concluded that: “The applicant provided documents which could not be verified by the IPO and therefore have little probative value. For the above reasons the applicant’s claim that he is from Afghanistan is not accepted on the balance of probabilities.”

and it is the final report/determination that is under consideration by this Court.

44. In the present case, the applicant is left wondering if all, or just some, of the documents submitted were not capable of verification and, in the words of Cooke J in IR at §31 of the initial decision of 24 July 2009, where “documentary evidence of manifest relevance and of potential probative force is adduced and relied upon, the Tribunal member is under a duty in law to consider it and if it is discounted or rejected as unauthentic or unreliable or otherwise lacking probative value, there is a duty to state the reason for that finding.” This is particularly so as regards the applicant’s Tazkira in the present case. And further, it is clear from §15 of IR (in the decision of 26 November 2009 refusing the respondents a certificate of leave to appeal) that a practical difficulty in verifying documents does not excuse the Tribunal from making reference to them or from giving any reason for discounting them and Cooke J stated that: “Contrary to the respondent’s submission, the issue in this case was not whether the Tribunal had an obligation to authenticate the documents as such. The issue was whether the Tribunal member had an obligation to include consideration

Page 22 of 60 of the possible probative value of the documents as part of the entirety of evidence available once it was clear that the documents had possible direct relevance to specific facts and events in the applicant’s story. The court accepts that it may well be difficult and even impossible in many cases for the Tribunal to verify the authenticity of documents of this kind although the court is aware from other cases in this list of instances where documents have been sent by the Commissioner or the Tribunal for forensic examination in order to ascertain whether they are forgeries or copies. But even if that was not possible in a case such as the present one, it does not, in the court’s view, excuse the Tribunal’s failure to make any reference to the documents or give any reason for discounting them.” (emphasis supplied)

There is no specific reference to any specific document in the determination, other than in the listing of the documents at p.2 and p.3 of the determination, and there is no ‘document specific’ reason given for the discounting of the documents, other than “[t]he applicant provided documents which could not be verified by the IPO and therefore have little probative value”, which of course is not a ‘document specific’ reason at all.

45. The issue of the assessment of documents, independently of concerns regarding an applicant’s credibility, was also considered by Siobhán Phelan J in MH v. IPAT & anor [2023] IEHC 372, where the Court held at §96, in quashing the Tribunal decision, that: “Notwithstanding that adverse credibility findings were made in this case on multiple grounds which have not been challenged, it appears that these findings were also made without assessing potentially relevant documentation submitted by the Applicant because he was not otherwise considered credible. While general credibility is a factor in assessing documents submitted and may be determinative, the Tribunal erred in law in proceeding on the basis that as documents could not be accepted unless general credibility was accepted thereby failing to identify that there is a requirement to assess documents as to their contents in making findings as regards the claim made including findings as to general credibility.”

One of the issues in MH was that in the context of general (negative) credibility findings having been made at the outset, documents were not assessed at all and counsel for the applicant in the present case submitted that the error in the present case was even greater because the IPO did not appear to assess the documents at all because, according to the IPO, they could not be verified by the IPO and had

Page 23 of 60 little probative value. However, the respondents interpreted this paragraph to the effect that Phelan J essentially made a finding that whilst documents must be assessed, they (the documents) do not need to be assessed separately to an assessment of credibility and, in the present case, the documentation was assessed, it was found to have no value and therefore it could not assist the applicant in establishing his general credibility.

46. Counsel for the applicant submitted at hearing that the effect of MH was that documents could not be rejected or completely discounted or disregarded simply because they could not be verified, noting that Phelan J held at §92: “There is nothing in the terms of the Decision or the record of the decision- making process to indicate that any consideration was given to the possibility of independent verification or to explain why it was not possible to pursue the question of independent verification. While there is no onus on personnel examining applications to endeavour to authenticate or verify every document, special features of some documentation can give rise to such a duty. It seems to me that the newspaper article from a daily newspaper and letters on headed paper with multiple personal identifiers for those involved with the JKLF are examples of the types of document which can give rise to a special duty of enquiry because they are potentially amenable to further verification” (emphasis supplied)

and it seems to me that in the circumstances of the present case, where the Tazkira is of particular relevance, there was a special duty of enquiry on the IPO as to whether further consideration ought to have been given to verifying or authenticating it, and where (as discussed hereunder) an expert may be retained as regards verification/authentication of a Tazkira, then such special duty of enquiry extends to obtaining such expert evidence if this is the only manner by which a Tazkira may be verified/authenticated to the satisfaction of the IPO.

47. Looking at the variety of documents submitted by the applicant, it is clear that at least some of them should have been capable of relatively easy verification (e.g., the applicant’s Irish driving licence and private security authority card) and whilst these – and similar documents – may not have assisted the applicant in establishing his nationality to the satisfaction of the IPO, it beggars belief that they “could not be verified by the IPO.” In failing to identify which documents could and could

Page 24 of 60 not be verified by the IPO, and in failing to give adequate reasons why certain documents could not be verified by the IPO, the IPO left the applicant in the dark and in my view, the IPO did not carry out its assessment in line with the assessment process as envisaged in inter alia LH, IR and MH.

48. Some assistance was provided by counsel for the respondents at hearing when submitting that insofar as the documents provided went to nationality, the only documents that the applicant provided were the Tazkira and the translated version of the Tazkira, and in so providing, it could not be said that the statement by the IPO that documents “could not be verified by the IPO” could refer to anything other than the Tazkira. However, the relevant text in the determination, at Section 4 under the heading “Nationality” is: “The applicant claims to be a national of Afghanistan. For the purpose of this report, it is not accepted on the balance of probabilities that the applicant is a national of country Afghanistan for the following reasons:”

The reasons as then set out in the determination all dealt with: ➢ the insufficiency of detail or specificity provided by the applicant relating to the area in which he claimed to have lived; ➢ the fact that the applicant’s claim was inconsistent with COI; and ➢ the lack of external consistency of his account or his credibility;

and the determination then continued, as more particularly set out at §13 above: “Ultimately, the applicant failed to provide sufficient detail on the area he claimed to live and work ….. The applicant’s answers regarding his area which he claimed to live were not externally consistent with the COI which was put to him and fundamentally affected the credibility of his claim. The applicant provided documents which could not be verified by the IPO and therefore have little probative value. For the above reasons the applicants claim that he is from Afghanistan is not accepted on the balance of probabilities.”

There is simply no reference or reasoning at all in the body of the determination that is referable to the Tazkira or that would lead the applicant to believe, with any degree of certainty, that it was his Tazkira and his Tazkira alone that was in issue and it is incumbent on the IPO to provide a determination that is clear and

Page 25 of 60 unambiguous and with sufficient reasoning for the applicant to understand and be satisfied firstly, that all individual documents were assessed by the IPO and secondly, why specific individual documents could not be verified by the IPO. This the IPO did not do.

49. Much of the discussion above is concerned with the assessment of the applicant’s documents, which said assessment is particular to the applicant’s case and would not, in the ordinary course of events, bring the applicant’s judicial review outside the scope of AB. In other words, the fact that the determination does not record ‘document specific reasoning’ would, in and of itself, be a ground for appeal before the Tribunal. However, a sub-set of the assessment is the verification of the Tazkira and it is this verification (or lack thereof) – when viewed in conjunction with the policy of the IPO (as set out at §68 hereunder) that it does not routinely seek an expert opinion on the genuineness of an individual Tazkira – that brings the applicant’s case, in my view, outside the scope of AB (see also the discussion hereunder from §86 onwards).

50. Counsel for the respondents submitted that the statement that documents “could not be verified by the IPO” was consistent with instructions provided to counsel before and/or during the hearing as to the impossibility of verifying the Tazkira from the IPO’s perspective, and therefore it had little probative value. Counsel advised me that “Tazkiras can’t be verified” and that the IPO did not verify Tazkiras because they had no security features that could be verified by using technology. However, the determination does not give this detail, and whilst is well-settled law that ex post facto justification (or reasoning) should not be taken into account by me (see, for example, R v. Westminster City Council Ex Parte Ermakov [1996] 2 All ER 30 [approved inter alia in City of Waterford VEC v. Secretary General of the Department of Education and Science & ors [2011] IEHC 278, per Charleton J at §12; TAR & anor v. Minister for Justice [2014] IEHC 385, per McDermott J at §25; and in MNN v. Minister for Justice [2020] IECA 187, per Power J at §94 where she held that “when reviewing a decision, a Court must confine itself to the decision itself and the reasons contained on its face and not permit an ex post facto rationalisation”]), I am satisfied to note the explanation from the respondents given that the necessity for such explanation

Page 26 of 60 arose out of an enquiry by me (see also §53 below). In other words, it seems to me that a departure from the jurisprudence as set out in Ermakov and subsequent authorities is permissible in circumstances where the ‘justification’ or ‘reasoning’ was not utilised by the respondent – either by way of pleading or submissions – to counter the arguments of the applicant, but rather arose in answer to queries raised by the Court.

51. Separately, counsel for the respondents also sought to differentiate the fact of the document not capable of being verified from the fact of the document not being considered/assessed (by reference to AE, in which it was accepted that documents were not ‘considered’ by the decision-maker), but the determination relies on the documents not being capable of verification (and therefore having “little probative value”), and that is the limitation that I have to consider. There is simply no reference to an assessment of documents in the determination, other than a blanket reference at p.3 of the determination to “[a]ll of the documentation provided by the applicant” being fully considered, and there are no reasons given as to why, any specific document having been assessed, such document was given little or no weight by the IPO. In other words, there is simply a blanket reason given relating to unspecified documents and this, in my view, is not an assessment in accordance with the Act or in line with the assessment process as envisaged in inter alia LH, IR and MH.

52. It was further submitted on behalf of the respondents that the Tazkira was considered insofar as it could be considered and that it was simply a fundamental limitation of the type of identity document available to Afghan nationals and the inquiries that the IPO could make in the circumstances, and it appeared that there were no further steps that could be taken by the IPO. The Tazkira remained an unverified document and, therefore, did not weigh very much in the balance. Again, whilst noting that these submissions also constitute ex post facto reasoning, which I am satisfied to take into account for the same reason as set out at §50, in the absence of the IPO specifically identifying the document/documents that it said “could not be verified by the IPO” and giving ‘document specific’ reasons for same, the applicant simply cannot know what it is that he must do to substantiate his case on appeal.

Page 27 of 60 53. I raised the issue of verification with counsel for the applicant during the course of the hearing, posing a question – “is a Tazkira ever capable of being verified” – to which the reply was, with counsel accepting that it was not his position to give evidence – “no” – and reference was made to the unlikelihood of any official contacting the Taliban with a view to ascertaining the genuineness of a particular Tazkira. However, counsel for the applicant later submitted that “it’s not technically correct to say they can’t be verified at all in some way”. That being so, it is curious that the verification of a Tazkira does not appear to have been addressed by the High Court previously (and I accept that there was no evidence before me as to the number of occasions on which the authenticity of a Tazkira has not been accepted by the IPO, or indeed by the Tribunal) and the only recorded case in which the authenticity of a Tazkira even appeared to have been mentioned was GMD (Afghanistan) v. RAT & anor [2015] IEHC 787 in which Stewart J stated at §15 that the Tribunal member noted that: “The authenticity of the documents purporting to be a taskera [Afghan identification] is not material to any matter that the Tribunal must determine, given that, for the purposes, it is being accepted that he may be from Afghanistan.”

54. In the circumstances, an inference can perhaps be drawn that in many international protection cases in this jurisdiction involving applicants from Afghanistan, a Tazkira is accepted for what it is, if nationality is not in issue. And indeed counsel for the applicant submitted at hearing that it was quite rare that nationality was at issue, that the Tazkira cannot simply be rejected or disregarded and that a Tazkira is frequently provided to and accepted by the Tribunal as evidence of nationality. However, in answer to another question posed by me – “but surely, then, the same odds are stacked against every single applicant from Afghanistan whose only identity document is the Tazkira” – counsel for the respondents replied: “Yes, Judge, but that again comes back to why the detailed questioning of the applicant as to his area and where he claims to come from in order to establish his nationality, as opposed to establishing his reason for fearing persecution, his claimed reason. It would appear to be the case that this would be the position of all Afghan nationals with no further identity documents. But it’s also not clear that there’s any error by the IPO in this approach because the other option would be to take the approach urged on you by counsel for the applicant

Page 28 of 60 and say: “Well, this is prima facie evidence of Afghan nationality and, therefore, it ought to be accepted in the absence of countervailing evidence.” But it’s not clear what countervailing evidence there could be except for an insufficient – or what is deemed to be an insufficient – knowledge of the geographical location, which is essentially the approach that the IPO is taking …..”

55. It seems to me, however, that there is a third option (i.e., other than accepting or rejecting/discounting the Tazkira) and that is for the IPO to take steps to verify the Tazkira. In circumstances where the IPO did not accept the applicant’s answers to questions relating to the area in which he claimed to live and work and the IPO formed the view that “[t]he applicant’s answers regarding his area which he claimed to live were not externally consistent with the COI which was put to him and fundamentally affected the credibility of his claim”, the IPO was under a duty to properly assess and to have regard to the Tazkira and its authenticity or otherwise, before coming to the conclusion that “the applicant’s claim that he is from Afghanistan is not accepted on the balance of probabilities.” In a matter such as the present case, had the IPO taken steps to authenticate the Tazkira and had the authentication of the document been in the negative, then it is likely that no issue could be taken on judicial review with the finding as regards the applicant’s nationality. And, of course, the converse is also true, and had the authentication of the document been in the positive, then it is likely that the IPO could not have “rejected the applicant’s asserted claim as to nationality” on the basis that documents “could not be verified by the IPO”.

56. By way of contrast to the position of the IPO that it could not verify the Tazkira, English caselaw acknowledges that the Tazkira is a national identity document for Afghanistan and, for example, in R (on the application of MS (by his litigation friend)) v Kent County Council [2024] EWHC 2661 (Admin) it was noted at §10 that “[t]he authenticity and reliability of the tazkira are plainly important issues in this case. A certified translation of the document indicates that it was issued on 25/07/1399 which converts to 16 October 2020.” Likewise, in the present case, the authenticity and reliability of the Tazkira are important issues. R(MS) concerned an interim application by an applicant who sought international protection in the UK. The applicant’s age was called into question by the local

Page 29 of 60 authority and the Court (Pepperall J) granted him interim relief requiring the local authority to treat him in accordance with his claimed age, pending a determination on his age or further order. One of the issues in the interim application was whether or not the parties would be permitted to rely on expert evidence as regards the authenticity of the applicant’s Tazkira in circumstances where the parties had not sought or obtained permission (under the Civil Procedure Rules 1998) to rely on such evidence. Counsel for the applicant in R(MS) sought to rely on two third party experts (one of whom was ultimately permitted by the Court to give evidence regarding his forensic examination of the Tazkira) and counsel for the respondent sought to rely on an expert employed by the Home Office, whose evidence was also permitted by the Court, but given that this was simply an interim application there is no further information available as to the outcome of the expert testimony. Whilst no authorities were opened to me in terms of how the Tazkira in the present case might have been verified, R(MS) is instructive as to how the IPO might have dealt with the Tazkira (e.g., by obtaining expert evidence), had it identified the document by name in the determination and specifically addressed any issues in respect of it.

57. It is also interesting to note that the CJEU in X v. IPAT (C-756/21, 20 June 2023) held at §56 that, as regards the relevant elements relating to the individual position and personal circumstances of an applicant: “….. the provisions of Directive 2005/85 [the procedures Directive] do not restrict the means available to the competent authorities and, in particular, do not exclude the use of expert reports in the context of the process of assessment of the facts and circumstances in order to determine more accurately the applicant’s actual need for international protection, provided that the modalities of any use, in that context, of an expert’s report are consistent with other relevant EU law provisions, and in particular with the fundamental rights guaranteed by the Charter.” (emphasis supplied)

58. And whilst mindful that firstly, the expert evidence in X concerned the obtaining of a psychiatric report and secondly, the obtaining of expert evidence was not initially raised by either of the parties in the present case, it appears to me (at least on the basis of R(MS)) that expert evidence could have been obtained by the IPO

Page 30 of 60 to assist in terms of document verification and, that being so, then the IPO is in breach of the “special duty of enquiry” (per Phelan J in MH).

59. Counsel for the applicant also drew my attention to the consideration of Phelan J in MH regarding the European Asylum Support Office (EASO) – now the European Union Agency for Asylum (EUAA) – “EASO Practical Guide: Evidence Assessment” (March 2015) which, whilst not binding on the IPO (as discussed by Phelan J from §82 to §87 of her judgment), is: “….. instructive insofar as a practical approach to the assessment of documentary evidence is concerned in the challenging context of international protection where reliance is placed on non-familiar documents” (at §88),

and where: “….. the contents are based on well-established principles of international and European law which fall to be applied by the State, then the EASO Guide provides an accessible statement of applicable principles potentially of assistance to decision makers in this jurisdiction identifying the proper approach by them to the discharge of their functions in accordance with Ireland’s protection obligations” (at §86).

60. It appears that the most recent iteration of this EUAA practical guidance, “Practical Guide on Evidence and Risk Assessment” (the “2024 guide”), dates from January 2024 (see also the reference to the 2024 guide at §68 hereunder) and as is acknowledged in the introduction to the 2024 guide – “About the guide” – it is “an update and replaces the EASO, Practical Guide on Evidence Assessment, March 2015.” The introduction also states that the 2024 guide is “a soft convergence tool. It is not legally binding and reflects commonly agreed standards as adopted by the EUAA Management Board on 22 December 2023.” However, I am satisfied that the reasoning of Phelan J in MH continues to apply and the 2024 guide is “instructive insofar as a practical approach to the assessment of documentary evidence is concerned in the challenging context of international protection where reliance is placed on non-familiar documents.”

61. The 2024 guide, under the heading “1.1.2. Collect pieces of evidence relevant to the application”, notes inter alia as regards “Identity documents and other documentary evidence”:

Page 31 of 60 “The documentary evidence could include different kinds of identity documents ….. Any documents presented by an applicant as evidence to support their claim must be examined thoroughly ….. Where possible, you should also obtain information as to the generally expected content and form of any of the documents presented (e.g. arrest warrants, court summons). Such information may be obtained through relevant COI, or through a specific verification procedure. The verification of documents should, if possible, be done prior to the personal interview. This will give the applicant the opportunity to explain any negative findings in relation to the authenticity of the submitted evidence. The verification of documents may be done from the registration of the application if the documents are available at that time. Depending on national practice and possibilities, the verification of (certain categories of) documents may be carried out by a specialised unit or authority. For more information, see Step 2, 2.1. Assess documentary and other evidence, and the EUAA’s practical guide on registration. The verification needs to be carried out in a way that ensures that the principle of confidentiality is respected (see above Section ‘Guiding principles, (e) Confidentiality’).” (emphasis supplied)

And as to “Step 2, 2.1. Assess documentary and other evidence” see §71 hereunder.

62. Accepting that the 2024 guide is not binding on the IPO, it is certainly instructive, and it remains the case that the determination does not reflect any attempts on the part of the IPO to obtain information as to the generally expected content and form of the Tazkira. The applicant was faced, in the circumstances of this case, with no finding except that unnamed documents could not be verified by the IPO, which arguably places the applicant in a more invidious – or nebulous – position than if he were faced with a finding that documents were counterfeit or that he was not who he claimed to be, since at least in such situation the applicant would be aware of the precise concerns of the IPO and should have an opportunity to answer those concerns. In the present case the applicant was given no opportunity whatsoever to answer or dispel the IPO’s concerns and, insofar as an appeal to the Tribunal is concerned, the applicant does not have sufficient information available to him in the determination to enable him to mount a proper appeal, quite independently of the applicant’s complaint that if the Tribunal were to hold for him on nationality then the other elements of his claim as regards persecution and serious harm would be decided upon for the first time by the Tribunal. This concern, of course, must

Page 32 of 60 be viewed through the lens of AB and the ramifications of AB are discussed hereunder at §86.

63. Given that steps may be taken to verify a Tazkira – as is clear from R(MS) – and given that the verification of a Tazkira does not appear to have been addressed by the High Court heretofore, I sought the views of the parties, following the hearing, on: - the duty of mutual cooperation placed on the parties (s.28(1) of the Act and Art 4(1) of the qualification Directive); - the IPO determination that the documents submitted by the applicant “could not be verified by the IPO”; and - the respondents’ position at hearing that “Tazkiras can’t be verified”; and, in particular, on the application of R(MS), X and GMD (Afghanistan) in this regard.

64. In those supplemental submissions, counsel for the applicant submitted that R(MS) was of particular relevance in that: - it undercut any absolute proposition that the Tazkira ‘cannot be verified’ in the broader evidential sense. Even if a Tazkira could not be checked at source, R(MS) illustrated that courts may permit expert examination directed to authenticity and that relevant authorities may take document-assessment steps; and - it informed what cooperation and assessment can mean in practice, consistent with X (authority that expert reports are not excluded) and LH (authority that documents must be assessed even if authenticity/document source cannot be objectively verified), and that this dovetailed with the LH obligation of assessment notwithstanding alleged non-verifiability: at minimum, a decision-maker must demonstrate that the document was examined as a document (appearance/format/features/content) and then explain what weight (if any) was attached and why, rather than relying on a generic “cannot be verified by the IPO” conclusion.

65. And, as regards GMD (Afghanistan), counsel for the applicant noted that GMD (Afghanistan) was a case where Afghan nationality was effectively not in dispute

Page 33 of 60 (so Tazkira authenticity may have been immaterial), whereas in the present case, where the IPO’s decision turned on rejecting Afghan nationality on the balance of probabilities and did not proceed to assess the substance of the protection claim, the Tazkira issue was not collateral, but rather it went to the determinative threshold finding and the legal obligations in LH, and the general approach emphasised in MH, were engaged at their highest.

66. Counsel for the applicant concluded that, taken together: a. alleged non-verifiability (including an alleged inability to establish authenticity and/or objectively verify document source) did not absolve the State of the obligation to assess the document in cooperation with the applicant, and b. the procedures Directive did not exclude expert reports as part of fact- assessment where necessary or relevant, which was consistent with R(MS) as a practical illustration that expert examination of Tazkiras can be undertaken, and the applicant maintained the submission that the IPO’s approach to the Tazkira was legally deficient in the manner in which it treated non-verifiability as effectively dispositive, without disclosing a meaningful assessment of the document as evidence on nationality.

67. Counsel for the respondents took issue with the characterisation by the applicant that the IPO treated non-verifiability as effectively dispositive, on the basis that the IPO engaged in detailed questioning of the applicant in relation to the area from which he claimed to come, by way of assessing his claimed nationality in the absence of verifiable documents, but found that the applicant had failed to provide sufficient detail in response to the precise questions asked and that the answers given were not consistent with the COI that was put to him. However, it seems to me that in the absence of any identifiable and meaningful assessment of the Tazkira, the applicant’s submission – that the IPO’s approach to the Tazkira was legally deficient in the manner in which it treated non-verifiability as effectively dispositive, without disclosing a meaningful assessment of the document as evidence on nationality – is correct insofar as the Tazkira is concerned.

Page 34 of 60 68. As regards the IPO’s position on Tazkiras and noting that “[w]here the IPO’s general policy on the verification of Taskeras was not obviously put in issue by the Statement of Grounds, no evidence was adduced in this regard”, counsel for the respondents engaged with the enquiry made by me and noted by way of submissions that: a. in general, in assessing national identification documents, the IPO relied on COI and reputable databases, such as PRADO and EdisonTD; b. little weight was attached to a Tazkira by the IPO in the assessment of whether an applicant’s claimed nationality could be accepted. The IPO was not in a position to verify any Tazkira due to firstly, the lack of security features that could be verified by available technology and secondly, the ease with which Tazkiras could be falsified. In this regard, the IPO relied on established COI in respect of Afghan identification documents, including, for example, General country of origin information report: Afghanistan (2023) published by the Netherlands Ministry of Foreign Affairs, where it was stated as follows at p.49: “Tazkeras regularly have other stamps and signatures on them. There seems to be no uniform practice. Paper tazkeras are often incompletely filled in. In addition, they often contain incorrect or outdated information. They have no verifiable security features. The layout can be reproduced using simple means, and the same is true of the stamps. Paper tazkeras are therefore particularly often counterfeited or obtained fraudulently. Due to the lack of security features, it is virtually impossible to check their authenticity”;

c. in no case, would a Tazkira be accepted by the IPO as proof of nationality on its own. The minimal weight given to a claimed Tazkira was assessed in conjunction with all other evidence, in particular the applicant’s knowledge of the claimed local area, culture, language etc., in assessing a claim of Afghan nationality; d. although Tazkiras could have obvious problems on their face that decision- makers might identify as problematic (such as irregular font, obviously incorrect stamps) such that the IPO might conclude that it was likely that a claimed Tazkira was not genuine, absent any immediately apparent irregularity Tazkiras could not be verified as genuine or determined to be falsified;

Page 35 of 60 e. the IPO was not competent to carry out forensic analysis of documents. While the IPO was not precluded as a matter of law from obtaining expert forensic or linguistic evidence as to whether an individual document was likely to be a genuine Tazkira on the basis of, for example, the type of paper or ink used or the language used, this was not a practicable option for the IPO, on the basis of operational difficulty and cost. As was noted in the EUAA “Practical Guide on Evidence and Risk Assessment” (January 2024) at p.59, “Authentication may be difficult and may not always be possible. The impossibility or difficulty of conducting a formal authentication may be due to ….. [t]he cost of the experts’ authentication”; and f. the fact that the IPO was not in a position to routinely seek an expert opinion on the genuineness of an individual Tazkira had to be viewed in the context of the IPO’s assessment of all available evidence as to an applicant’s nationality, including knowledge of the claimed local area, culture, language etc. as a means of satisfying the IPO on the balance of probabilities as to the claimed nationality.

69. Counsel for the respondents informed me that the position of the IPO as set out in the preceding paragraph could be put on affidavit if so required by me, but in circumstances where none of this information formed part of the impugned determination, I did not think it necessary to have it introduced as ‘evidence’ subsequent to the decision-making process.

70. It was submitted on behalf of the respondents that the applicant’s submissions conflated the respondents’ position that a Tazkira could not be verified by the IPO with a claim that they could not be assessed and this was an incorrect interpretation of what was stated at hearing. The position was that, as Tazkiras could not be verified, they could only be given minimal weight in the overall assessment, even where they disclosed no obvious inconsistencies or errors on their face. In this case, the IPO made no finding that there were indications that the Tazkira was or may be false and it could therefore be presumed that there was no obvious issue that arose when the document was assessed. Nonetheless, the IPO correctly stated that the document could not be verified and it was notable that the applicant did not identify any way in which it could be verified, rather than assessed. It was not

Page 36 of 60 apparent what further assessment the applicant could reasonably contend could have taken place, where the reason for the finding that the Tazkira had little probative value was not due to any divergence from a genuine Tazkira in terms of size, format, etc., but because this Tazkira, like any other, could not be verified.

71. The specific guidance as referred to at §68.e above is encompassed in a section in the 2024 guide headed up “2.1.2. Authentication of documents” and, in addition to noting that “Authentication may be difficult and may not always be possible” the guidance goes on to note that: “The impossibility or difficulty of authenticating a document cannot justify not proceeding with its evaluation. Irrespective of whether the evidence provided is authentic or not, you must decide on its probative value in relation to the examined material fact [and the 2024 guide refers to LH in this regard]. The other criteria (existence/occurrence of the type of document, content, form, nature, author) will help you in this assessment.” (emphasis supplied)

72. However, the determination itself does not indicate the manner in which the Tazkira was assessed – as noted at §36 above – and it does not appear to me that there is any basis for the respondents submitting that “the reason for the finding that the Taskera had little probative value was not due to any divergence from a genuine Taskera in terms of size, format, etc., but because this Taskera, like any other, could not be verified” since there is absolutely no indication in the determination that the Tazkira was assessed at all, other than the bland references to “[a]ll of the documentation provided by the applicant (including the documentation listed above) has been fully considered” and the fact that documents “could not be verified by the IPO”. Further, it seems to me, given the finding by the IPO that the documents “could not be verified by the IPO and therefore had little probative value” that the IPO itself had, in some way, conflated the task of assessing documents with verifying documents, particularly in circumstances where it is not clear from the determination that the Tazkira was assessed at all.

73. Referring to the 2024 guide, no real (or any) assessment of probative value such as the “existence/occurrence of the type of document, content, form, nature, author” is evident from the determination. It seems to me that this statement – as to the

Page 37 of 60 documentation being fully considered – is nothing more than “administrative throat-clearing” (per O’Donnell J, as he then was, in Balz & anor v. An Bord Pleanála [2019] IESC 90; [2023] 3 IR 751, at §47 and see also BAC (Botswana) v. IPAT [2024] IEHC 297, at §7.1 per Gearty J) and in the circumstances of this case, the lack of detail in the determination does not give me any comfort that the IPO had any regard to the applicant’s Tazkira and/or assessed it appropriately, whatever about taking steps to verify it.

74. As regards R(MS), the respondents’ position was that it was not operationally feasible for the IPO to obtain expert evidence on every Tazkira that is presented, and whilst it appeared from R(MS) that the relevant decision-maker had recourse to a national expert body in the UK in assessing the Tazkira at first instance, there was no equivalent resource available to the IPO. Counsel for the respondents submitted that such operational constraints fell within the margin of discretion as to necessity and relevance recognised in X (see §58), where the IPO was in a position to allow applicants to establish their nationality inter alia through demonstrating local knowledge. And thus, unless a Tazkira was clearly inauthentic, where its genuineness could not be verified within the IPO’s resources, it could only be given minimal weight in the balance of the IPO’s overall assessment of claimed nationality.

75. However, it seems to me that it is not in every case in which a Tazkira is presented, that such Tazkira will require authentication, since if Afghan nationality is accepted, then a forensic examination of the Tazkira will not be required (as would appear to have been the case in GMD (Afghanistan)). But for those cases in which nationality remains in doubt (on the balance of probabilities) following interview and COI analysis, and where steps can clearly be taken to verify a Tazkira – over and above the steps taken in the present case – it is appropriate that the IPO take such steps (whether by obtaining expert opinion or otherwise) given the duty of mutual cooperation placed on the parties (s.28(1) of the Act and Art 4(1) of the qualification Directive).

Page 38 of 60 76. As regards mutual cooperation, the applicant relied inter alia upon the decision of the CJEU in MM v. Minister for Justice (C-277/11, 22 November 2012), where it was held at §66 that the: “….. 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.”

77. It is clear from MM (§63-§68) that the duty of cooperation in Article 4(1) extends only to the establishment of factual circumstances and not to the legal assessment of those circumstances but in X, as noted at §57 above, the procedures Directive does not “exclude the use of expert reports in the context of the process of assessment of the facts and circumstances in order to determine more accurately the applicant’s actual need for international protection” and at §56 to §58 of X, the CJEU held: “As regards the relevant elements relating to the individual position and personal circumstances of the applicant, it should be noted that the provisions of Directive 2005/85 do not restrict the means available to the competent authorities and, in particular, do not exclude the use of expert reports in the context of the process of assessment of the facts and circumstances in order to determine more accurately the applicant’s actual need for international protection, ….. The individual assessment thus required may therefore include, inter alia, the use of a medico-legal report, if such a report proves necessary or relevant in order to assess, with the vigilance and care required, the applicant’s genuine need for international protection, ….. It follows that the competent authority has a margin of discretion as to the necessity and relevance of such a report and that, where it deems such a report necessary or relevant, it is required to cooperate with the applicant in order to obtain that report …..” (emphasis supplied)

78. Therefore, in circumstances where nationality is inextricably linked to the question of genuine need for international protection and where the Tazkira was the only other evidence available as to the applicant’s nationality, and also in circumstances where the IPO had rejected the applicant’s answers at interview based upon external inconsistencies with COI and therefore the IPO were not satisfied as to the

Page 39 of 60 applicant’s nationality under this consideration, the IPO ought to have considered expert evidence to authenticate the Tazkira given the duty of mutual cooperation and “the vigilance and care required” to assess the applicant’s genuine need for international protection. Accepting that there is a margin of discretion afforded to the IPO as regards the necessity and relevance of an expert report, it follows from X that there is an obligation on the IPO to consider whether or not the Tazkira can be verified – and R(MS) is authority for the proposition that such authentication/verification is possible – and it is clear from the determination that such consideration did not take place. Furthermore, it is clear from R(MS) that in addition to a national expert body to which the authorities in the UK had recourse, there was also the possibility of obtaining independent third party expert evidence and this option was always open and available to the IPO, even if the IPO did not have recourse to a national expert body.

79. By way of supplementary oral submissions, counsel for the respondents urged upon me that I was not entitled to make a decision other than on the basis upon which leave was granted but it seems to me that legal grounds (e)(i) and (e)(ii) as pleaded in the statement of grounds and as summarised at §17(i) above allow me to arrive at the foregoing conclusions. And for clarity, legal grounds (e)(i) and (e)(ii) state: “(i) The IPO acted in breach of constitutional justice and fair procedures and section 28(2) and 28(3) of the 2015 Act in failing to take account of the copy of the Applicant’s national identity card (Taskera) from Afghanistan. Whereas it is listed under the heading ‘documents’ in the section 39 report, it was not taken into account or considered in assessing whether he was a national of Afghanistan. The IPO considered that the Applicant had failed to establish his nationality and, in respect of the documents, the following is stated in its decision: The applicant provided documents which could not be verified by the IPO and do not support his claim. For the above reasons the applicants claim that he is from Afghanistan is not accepted on the balance of probabilities. [It should be noted that this quotation is taken from the draft report rather than the final report, the differences being noted at §43 above, and it does not seem to me that much turns on the difference in terms of the grounds upon which leave was sought and granted] The Taskera states on its face that the Applicant is from [named village] (Afghanistan) and that it was issued in Nangarhar Province, [named district] District in 2020. Whilst it is not necessarily determinative of the

Page 40 of 60 issue, it is strongly supportive of his claim that he is a national of Afghanistan (it says this), and to contradictorily hold otherwise is evidence of it not having been taken into account. It is not suggested in the decision that the Taskera is a forgery, that isn’t in fact a Taskera at all, or that the Taskera is not the national ID document for Afghanistan, prima facia evidence that the holder is an Afghan. (ii) In failing to take account of the aforesaid identity document, the IPO has acted unreasonably and or in breach of his obligations under section 28(4)(b) and or 39(2)(a) of the 2015 Act. A finding that an applicant for international protection is not even from the country which it is alleged he or she from (the country of origin) is of fundamental importance. Even if it was not accepted that the Applicant is from Nangarhar Province, and his story of what happened him was not credible, his claim would still have to be assessed on the basis that he is young Pashtun man from Afghanistan (his first language is Pashto).”

80. I also sought the views of the parties on the application of L v. IPAT [2025] IEHC 347 – in which O’Donnell J considered identity documents (not a Tazkira, but inter alia a teaching training certificate, an employment letter, a birth certificate, a diploma, student and teacher ID cards) and the fact that the Tribunal made the point that “there was no way to verify their authenticity” – to the present case. O’Donnell J at §90-§94 of his judgment noted that: “The proper approach to the consideration of credibility by reference to documentation was addressed in detail by Phelan J. in M.H. v. IPAT ….. At para. 93 of that judgment Phelan J. noted the “overriding duty to consider documents submitted and not to reject them without further scrutiny simply because the account given is implausible or not believed.” ….. I am satisfied that the Tribunal did not engage in the type of erroneous analysis that was criticised in M.H.. As set out above, the Tribunal clearly considered the documents in their own right and by reference to their contents and markings. The Tribunal found that the documents were unreliable because of discrepancies in dates and stamps and similar matters and where there was no satisfactory explanation for those discrepancies. Where the analysis was directed to the individual documents and explanations were sought for material discrepancies, it cannot be said that the Tribunal failed to give the documents proper consideration. (emphasis supplied) In relation to the ID documents, the simple point made by the Tribunal was that there was no way to verify their authenticity. This distinguishes these documents from certain of the documents that fell to be considered in M.H. In that case, it was clear that some of the documents could potentially have been verified or authenticated, such as newspaper reports and certain correspondence.”

Page 41 of 60 81. Counsel for the applicant sought to distinguish L from the present case on the basis that: - the Tazkira was the national ID card for Afghanistan, not a student or teacher ID card, and what a Tazkira was supposed to look like was easily verifiable. IPO decision makers or IPAT tribunal members can and do check Tazkiras and it was not uncommon to see decisions where the Tazkira was found to have the wrong stamp from the wrong authority or to have the signature in the wrong place etc.; - there were very significant issues raised in respect of the other documents submitted by L, and which documents appeared to have been extensively assessed by the Tribunal in its decision and the credibility findings of the Tribunal in L in respect of a student and teacher card were clearly referable to the other, and very extensive findings in respect of the documentary evidence. There was nothing like this in the present case.

82. Counsel for the respondents noted that O’Donnell J, in L, found that the Tribunal had not engaged in the type of impermissible approach identified in MH, which concerned a situation where documents could have been verified but were not, where the Tribunal had already reached a conclusion on credibility. Counsel for the respondents submitted that this was equally so in the present case; there was no prior finding of lack of credibility that coloured the IPO’s assessment of the Tazkira and whilst the applicant sought to distinguish the present case on the basis that there were significant infirmities with other documents in L, this could not be relevant to whether or not a decision-maker was acting lawfully in assigning little weight to a document that disclosed no infirmity on its face but is of a type that is easily falsified. However, there is a world of a difference between identifying and considering the documents, as was the case in L where O’Donnell J noted that “the Tribunal clearly considered the documents in their own right and by reference to their contents and markings” and the present case, where no documents were specifically identified and where there was no ‘document specific’ consideration apparent from the determination.

Page 42 of 60 83. Counsel for the respondents brought the applicant’s s.35(12) interview to my attention during the course of the hearing, wherein he was asked at Q.23 – “Can you set out in your own words why you are seeking international protection here in Ireland?” – to which the applicant gave an account of threatening and distressing interactions with the Taliban at his place of work. Counsel for the respondents highlighted that what was set out in his answer was not that he was seeking international protection because he was a young Pashtun man in Afghanistan, but rather a narrative of violence on the part of the Taliban in a specific location relating to actions taken by the applicant and therefore an assessment of the applicant’s claim could not be made untethered to the question of whether or not he came from a particular geographical area. And further, the respondents argued that the IPO had considered the applicant’s claim in its entirety, but that this claim could not be extracted from this specific area, and as such the IPO’s lack of acceptance of Afghan nationality was a credibility finding representative of a full first-instance decision.

84. It seems to me that such lack of acceptance of Afghan nationality cannot be divorced – or untethered – from the applicant’s Tazkira and whilst counsel for the respondents emphasised at hearing that the IPO did not find that he was not an Afghan national simpliciter, but rather it was not accepted that he was an Afghan national for the purpose of examining his international protection application, given the geographical specificity of his claim, this is not quite what the determination states and it is clear from the determination that the fact that documents could not be verified by the IPO also fed into the decision-making and conclusion that “the applicant’s claim that he is from Afghanistan is not accepted on the balance of probabilities.”

85. Counsel for the respondents submitted at hearing that whilst the case law established that it would not be appropriate for a material element of the claim to be considered for the first time on appeal where that was unfair to the applicant, that situation was distinguishable from a situation where the applicant’s entire claim had been considered. And the respondents submitted that the present case was one where, in rejecting nationality, the applicant’s entire claim had implicitly been considered. And at hearing, the respondents’ position was firmly that if the

Page 43 of 60 alleged failure to consider the applicant’s entire case or alleged failure to take into account the Tazkira created frailty within the decision, it remained that the applicant had a remedy available to him by way of an appeal to the Tribunal.

86. There is no doubt but that the decision of the Supreme Court in AB clarified the position in terms of judicial review of first-instance decisions and the present case, and whether judicial review of the IPO determination lies, must be viewed through an AB lens, so to speak. Counsel for the applicant submitted that AB expressly preserved the High Court’s role where a case raised something more than an ‘individual mishap’, namely where the issue indicated persistent illegality or systemic malfunction requiring court intervention as a safeguard. And, as regards the specific circumstances of the present case, where the dispute concerned a categorical approach by the IPO to a class of documents – i.e., Tazkiras in this case – counsel for the applicant submitted that the High Court’s role was not excluded merely because a statutory appeal existed.

87. As against this, the counsel for the respondent submitted that the applicant’s case was never one of a systemic or persistent error on the part of the IPO and that any concerns were raised by the Court subsequent to the main hearing and were not pleaded. This is undoubtedly the case and as noted inter alia by Murray CJ in AP v. DPP [2011] IESC 2; [2011] 1 IR 729 (see §4-§10), applicants are confined to their pleadings in “the interests of the good administration of justice”. But that is not the end of the matter and it is open to a Court of first instance to invite the parties back to recast an issue, as was the case in ES v. Teehan [2017] IEHC 10, in which Humphreys J stated at §8-§9: “The second issue is whether the learned judge could re-enter the attachment and committal (which had been adjourned generally) by way of his own motion either (a) without an application by the notice party or (b) without advance warning and notice to Ms. S. It seems to me that the situation is analogous to that discussed by the Court of Appeal of England and Wales in Al-Medenni v. Mars UK Limited [2005] EWCA (Civil) 1041 in particular per Dyson L.J. at para. 21: ‘The judge can invite, and even encourage, the parties to recast or modify the issues. But if they refuse to do so, the judge must respect that decision.’ This is in the context of amendment but the same principle applies by analogy to other steps that are open to a party such as whether to bring, or re- enter, an application. In such a situation, the judge can invite and even

Page 44 of 60 encourage the parties to make a particular point but if they refuse to do so the judge must respect that decision. One consequence may be that the judge is compelled to reject a claim on the basis on which it is advanced although he or she is of the opinion that it would have succeeded if it had been advanced on a different basis. But there is nothing wrong with the court drawing the point to the parties’ attention in the first place. In T.D. v. Minister for Justice Equality and Law Reform [2014] IESC 29 the Supreme Court noted without any apparent disapproval the fact that Hogan J. had of his own motion taken a point as to the validity of a statutory provision in that case. In J.K. (Uganda) v. Minister for Justice and Equality [2011] IEHC 473 Hogan J. also took an important point of his own motion after having reserved judgment and reconvened the hearing of his motion to apply further submissions. The approach that arises from those authorities is that a court can raise an issue of its own motion if it considers it to be relevant, it can reconvene a hearing of its own motion to draw that issue to the attention of the parties but if neither party wants to adopt and run with that issue, then the court should let matters rest at that point absent limited circumstances such as an autonomous duty on the court.”

88. In JK(Uganda) v. Minister for Justice and Equality [2011] IEHC 473, Hogan J noted from §23-§27: “As it happens, this issue was not raised by the parties during the course of the first hearing and, candidly, it was a matter which came to my attention only in the course of preparing this judgment. I then re-listed the matter so that the parties could comment on it. Mr. Buckley, counsel for the applicant, freely admitted that it had not been raised by him, either on the pleadings or in the course of argument. He submitted that Ord.84, r.20(3) RSC nonetheless enabled this Court to formulate a new ground of its own motion. This provides:- “The Court hearing an application for leave may allow the applicant’s statement to be amended, whether by specifying different or additional grounds of relief or otherwise, on such terms, if any, as it thinks fit.” Counsel for the Minister, Mr. Conlan Smyth, submitted that I had no jurisdiction pursuant to Ord.84, r.20(3) on the basis that the hearing was now concluded. While he made no submissions on the merits of this point, he contended that were I to accede to this ground, it would amount to a form of ultra-zealous scrutiny of the actions of administrators, going well beyond that which was permitted within the established parameters of judicial review. In my view, Mr. Buckley is quite correct in suggesting that the case remains at “hearing” in the sense contemplated in O.84, r.20(3). That phrase must be understood as referring not only to the actual “hearing” in the sense of oral argument, but it also embraces the period right up to the actual delivery of the judgment. In any event, out of a sense of fairness to the parties, I decided to re- list the matter for further argument, so that it cannot even be said that the actual

Page 45 of 60 hearing has been disposed of. It is only when the judgment has finally been delivered that the High Court’s jurisdiction to permit an amendment of pleadings is exhausted: see, e.g., my own judgment in U. v. Minister for Justice, Equality and Law Reform (No 2) [2011] IEHC 95. It follows, therefore, that I have jurisdiction to formulate a fresh ground of leave pursuant to the provisions of r.20(3). The question then arises as to whether I should exercise that jurisdiction. I believe that I should. While the factual detail is, perhaps, easy to overlook, it nonetheless goes to the heart of the credibility assessment. If these death certificates are truly authentic, then it would cast a new and important perspective on Ms. K’s application for re-admission to the asylum system. Yet the detail of whether the correct post office box number was used on the death certificates was critical to that assessment. If the Minister’s assessment of that critical detail is itself incorrect or, at least, materially incomplete, then this error is reviewable by this Court for all the reasons set out by Cooke J. in his judgment in R. v. Refugee Appeal Tribunal [2009] IEHC 353.”

Albeit that JK (Uganda) concerned a judicial review leave application (as opposed to a substantive hearing, as in the present case), I take comfort from the observations of Hogan J that the leave application in JK (Uganda) remained ‘at hearing’ until judgment was delivered, and clearly the same situation pertains to the present case.

89. Whether or not a Court may assist litigants and their legal advisers was also considered by MacMenamin J in Tracey v. Burton [2016] IESC 16, where he noted at §48: “Subject to the Constitution, the administration of justice in public does not debar a court from assisting litigants, and their advisors, by considering the papers in a case beforehand; by sifting through the documentation in order to see what is relevant and what is not; by identifying the issues which truly fall to be decided; and by directing whatever written submissions may be necessary in order to ensure justice is done, effectively and efficiently ….. ” (emphasis supplied)

and it seems to me that in line with the decisions as set out from §87 above, I am not precluded in the present case from identifying an extension of the issue pleaded, the issue pleaded being ‘whether or not the IPO failed to take account of the applicant’s Tazkira in assessing his nationality’ (my summary) and the extension

Page 46 of 60 to that issue being ‘whether or not the IPO correctly proceeded to a determination on the basis that the Tazkira could not be verified by them’.

90. A not wholly dissimilar situation arose in CTM (A Minor) v. Assessment Officer & Anor [2022] IEHC 131 where Siobhán Phelan J stated at §44 “I am mindful that these are judicial review proceedings and therefore the principles in AP v. Director of Public Prosecutions [2011] 1 I.R. 729 apply. While it is true to say that the applicants’ cases showed some evolution, I consider that there has been no impermissible departure in these cases from the essence of the case for which leave was granted. The question of what is required in a Part 2 Assessment is one of law turning on statutory interpretation. This issue was fully ventilated before me with both sides offering submissions on the correct interpretation of the relevant provisions of the 2005 Act.” (emphasis supplied)

and even if this Court were not permitted to identify issues that were not explicit, I am of the view that there has been no impermissible departure from the essence of the case for which leave was granted and both parties were given an opportunity to deliver both oral and written submissions as regards the verification of a Tazkira (as set out at §63 above) and separately, written submissions on the application of AB (as noted at §25 above).

91. Furthermore, it is clear from TD v. Minister for Justice, Equality and Law Reform [2014] IESC 29 and JK(Uganda) that the identification of an issue may take place subsequent to a hearing. It is not unusual that following a development in the law which entails significant ramification for the pre-existing issues of the case, parties may be invited back for further submissions. This is exactly what occurred in the present case.

92. Separately, it does not seem to me that the respondents’ objections in terms of the extension of the issue identified by me were such that they did not engage with the issue and the respondent (and applicant) certainly adopted and ran with the issue (in the words of Humphreys J in ES) and that being so, I am of the view that I am entitled to have regard to the information provided to me by counsel for the respondent and as set out at §68 above. As noted at §69 above, this information was not before the Court by way of affidavit (arising as it did in the course of an

Page 47 of 60 enquiry by me) but it seems to me that I cannot ignore the position of the IPO as regards the non-verification of Tazkiras, particularly in light of the subsequent decision of the Supreme Court in AB, and it is clear that this position (of the IPO as regards the non-verification of Tazkiras – see §68 above) is not solely referable to the applicant’s case, but rather it is a general policy position on the part of the IPO.

93. It is clear from AB at §95 that “failure at an institutional level to provide a functioning system in which an application for international protection may be adjudicated upon” is required prior to judicial review of a first-instance decision being permitted or that, at §96, “there was evidence of persistent illegality or of a breach of natural and constitutional justice at the level of the IPO, such that the structure of the international protection process was inherently ineffective and defective ab initio. Only then might judicial review be the proper remedy to secure the entitlement to have one’s claim adjudicated in a functioning system which applies the law.” Applying this rationale to the present case, and noting the general policy position on the part of the IPO as set out §68 above, I am satisfied that the position of the IPO as regards the fact that Tazkiras cannot be verified amounts to a systemic issue such that there has been a fundamental denial of justice arising from a fundamental flaw in the decision-making process, which undermines the rule of law (in the words of Donnelly J in AB at §91-§92) in the present case which operates to exclude the applicant’s judicial review application from the scope of AB.

94. The respondents’ written submissions (provided in advance of the substantive hearing) took issue with the fact that if the determination were quashed and the matter remitted back to the IPO for further consideration and if a new decision- maker also concluded that the applicant’s claim to be an Afghan national was not credible, then that would mean that the remainder of the applicant’s claimed circumstances would not fall for consideration, the consequence being that by operation of the doctrine of precedent, this would then also be a decision that should be quashed, entitling the applicant to a further first-instance decision ad infinitum, or until a decision-maker found that the applicant’s claim of Afghan nationality should be accepted. However, in the event of the IPO taking steps to

Page 48 of 60 verify/authenticate the Tazkira, this ‘loop’ should not persist since a new decision- maker will be possessed of additional information (i.e., on the authenticity of the Tazkira) which was not in the possession of the original decision-maker, thereby allowing that new decision-maker to come to the same (or a different) conclusion supported by more cogent evidence.

95. I am very mindful that the hurdle that must be overcome to take the present case outside the scope of AB is a very significant one, but I am equally mindful that, as stated at §6 above, “a determination on nationality is pivotal in an assessment for international protection” and what can be more determinative of nationality in the present case than an authentic (or inauthentic) Tazkira? This, coupled with all of the deficiencies as set out above, and primarily that non-verification of the Tazkira is a systemic issue – which takes the present case outside the scope of AB on the basis of the respondents own submissions – leads me to being satisfied to grant the applicant an order of certiorari on grounds (e)(i) and (e)(ii) of the statement of grounds.

Whether the IPO’s finding that the applicant had failed to provide sufficient detail on the area he claimed to be from is unreasonable in that it did not flow from the narrative provided by the Applicant and the evidence before it, and whether the IPO breached the duty of mutual cooperation

96. Apart from the issue of documents that “could not be verified by the IPO”, the IPO placed reliance on its finding that “the applicant failed to provide sufficient detail on the area he claimed to live and work ….. the applicant’s answers regarding his area which he claimed to live were not externally consistent with the COI” and the relevant part of the determination is set out at §48 above. The determination devoted just over three pages to analysing the applicant’s answers at interview regarding the area in which “he claimed to live” and the IPO set out by way of five bullet points, cross-referencing the applicant’s answers at interview and available COI, that the applicant’s:

Page 49 of 60 ➢ “claim did not contain sufficient detail or specificity relating to the area which he claimed to live” – referencing his local area, available services and local villages; ➢ “claim is inconsistent with COI from the area which he claimed to live in” – referencing education and attendance at school; ➢ “detail claim on who was in charge of his village is not consistent with ….. COI” – referencing local leaders and who was in charge of his village; ➢ “answer was not consistent with the COI put to him and does not support the credibility of his claim that he is from the [named] valley in Afghanistan” – referencing the description of the applicant’s village and who was in charge there; ➢ “answer does not explain the external inconsistency between his description of his area and the COI referenced” – referencing the damage inflicted on the applicant’s village.

The applicant has taken issue with these findings and his position is set out at §18 above, by reference to his affidavit.

97. It appears to me that as regards the local leaders, the applicant gave names in answer to interview Q.36 – “Can you tell me who was in charge of your village” – that accord with COI that was available to the IPO, in an article published by The Guardian and an article published by The National News, both of which were referenced in the determination. Counsel for the applicant submitted that the naming of a local chief/leader by the applicant was highly specific and local information and that a finding of lack of credibility (in the present case based upon external inconsistency with COI) must be based on correct facts and the full picture that emerges (see IR, §10, principle 4). And it was also brought to my attention that it was not possible for the applicant to prepare for the interview by reading the COI, since he was not given the IPO’s COI in advance of the interview. It seems to me on the basis of the answers given by the applicant at interview and the COI referred to in the determination, there is simply no discernible basis for the IPO conclusion that the applicant’s “detail claim on who was in charge of his village is not consistent with ….. COI”. Noting that this is but one element of inconsistency as relied upon by the IPO, such a conclusion is still not ideal, based upon the information before the IPO at the relevant time.

Page 50 of 60 98. The position as regards the applicant’s locality was also averred to by the applicant and the fact that the IPO was “very focussed on one article that said all schools were closed down by ISKP.” This COI, an article published by the Afghan Analyst Network, was also referenced in the determination. However, further COI which was not referenced by the IPO (a research report published by The Combatting Terror Center at West Point) was exhibited by the applicant in support of his position that not everything in his region was under the control of the ISKP and it was the applicant’s position that this exhibited COI did, in fact, support his narrative. It should also be noted that the applicant’s then-solicitor provided written submissions and extensive COI to the IPO by email dated 01 February 2024, but it appears that this COI was focussed on assisting the applicant in his claim for refugee status or subsidiary protection, rather than assisting him in establishing nationality. It appears that no ‘local’ COI was provided since the applicant’s former solicitor clearly did not anticipate that the applicant’s nationality would be in issue and the applicant’s submissions dated 01 February 2024 stated, under the heading “2. Nationality/Identity”: “The Applicant is of Afghan nationality and has submitted a copy of his Takzira [sic]. The Applicant speaks Pashto one of the national languages of Afghanistan. He has established his nationality and identity and is outside his country of origin.”

99. In the ordinary course of events and given that the applicant has maintained an appeal to the Tribunal (as referred to at §20 above), the applicant would have ample opportunity to make submissions and provide any and all COI upon which he sought to rely (such as the COI exhibited by the applicant on affidavit and referred to in the preceding paragraph and at §18 above) to the Tribunal at appeal stage and the Tribunal would be well placed to consider the applicant’s complaint – including that there was available COI to support his narrative in considering the application – de novo.

100. Further, the applicant submitted that the IPO appeared not to have taken account of the following: a. that the applicant spoke Pashto at his interview, the predominant language in his region in Afghanistan, and an official language widely used in Afghanistan;

Page 51 of 60 b. that the applicant claimed to be of the predominant tribe in the region; and c. that the applicant provided extensive and unrebutted regional details at his interview, all of which, again, are points that may be raised by the applicant on appeal.

101. Noting that the determination only references three items of COI in all – of which two were undated in the determination (but it is clear from COI exhibited to the applicant’s affidavit that they were dated 25 March 2019 and 21 November 2019) and one, a Guardian newspaper article, dated 06 December 2019) – in response to a query raised by me at hearing as regards sourcing of COI, counsel for the respondents confirmed that a broad and relatively flexible approach is taken as regards the material submitted, either by the IPO or the applicant, to any reputable or credible source, inclusive of publications by international or intergovernmental organisations, publications by NGOs such as Human Rights Watch or Amnesty International, academic publications, reputable media sources and local media sources.

102. Further, and as regards COI, it is clear from the decision of O’Donnell J in L at §80, and in referring to the decision of the CJEU in X, that the duty of cooperation “required the determining authority to obtain up to date information regarding all the relevant facts as regards the general situation prevailing in the country of origin of an applicant for international protection”. Counsel for the applicant in the present case took issue with the fact that there was no evidence of any COI (primarily vis-à-vis the local political situation) being sourced by the IPO that may have tended to support the applicant’s narrative, and the applicant relied upon Article 4(1) and Article 4(2) of the qualification Directive (Article 4 dealing with the “Assessment of facts and circumstances”), which states: “1. Member States may consider it the duty of the applicant to submit as soon as possible all 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 of paragraph 1 consist of the applicant’s statements and all documentation at the applicants disposal regarding the applicant’s age, background, including that of relevant relatives, identity, nationality(ies), country(ies) and place(s) of previous residence, previous

Page 52 of 60 asylum applications, travel routes, identity and travel documents and the reasons for applying for international protection.”

103. In this regard, the applicant also relied inter alia upon the decision of the CJEU in MM – also referred to at §76 above – regarding the obligation on the IPO 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” and the respondents, relying on the decision of the CJEU in X, noted that the duty to cooperate extended to all the factual elements of an international protection application, including the relevant facts as to an applicant’s country of origin – more than merely the “relevant elements” relating to an applicant’s personal circumstances – and that being so, the obligation on the IPO was to cooperate in the assessment of the elements of the application, including precise and relevant COI, rather than assisting the applicant in substantiating a claim of nationality by seeking out COI that substantiated the applicant’s claims.

104. However, my reading of X is that the obligation on the IPO is more nuanced than that advocated for by the respondents and the CJEU in X held at §54 that: “the duty of cooperation laid down in Article 4(1) of Directive 2004/83 entails that the determining authority, in this case the IPO, cannot carry out an appropriate examination of applications or, consequently, declare an application unfounded without taking into consideration, at the time of taking a decision on the application, first, all the relevant facts concerning the general situation prevailing in the country of origin and, secondly, all the relevant elements relating to the individual position and personal circumstances of the applicant.”

Thus, both considerations (relevant facts and relevant elements) are equal and the CJEU did not prioritise one of these considerations over the other.

105. The respondents also submitted that there was no finding in the determination that all statements made by the applicant were inconsistent with the COI, but that the IPO found, as it was lawfully entitled to, that overall the responses of the applicant were inconsistent with the COI and that this was fundamentally detrimental to the credibility of his claim. On this basis, the respondents submitted that the determination could not be construed as irrational within the test set out in

Page 53 of 60 NM(DRC) v. Minister for Justice [2016] IECA 217; [2018] 2 IR 591; (in which the Court of Appeal held, per Hogan J from §37-§59, that contemporary standards of judicial review permitted the reasons for the decision to be subject to a thorough review by the court) and that it was clear that the IPO gave reasons that withstand review by the Court.

106. Further, and in response to the examples of answers to questions referred to at hearing and as set out by the applicant on affidavit, counsel for the respondents submitted that these examples of detail given by the applicant were not in correlation to the questions put to the applicant at interview. And counsel pointed out that when the applicant gave answers about his locality, the IPO interviewer then had to state that he was still having trouble placing the location and he restated the question to the applicant.

107. Counsel for the respondents also drew my attention to the decision of Faherty J in IFO v. Refugee Appeals Commissioner [2015] IEHC 586, wherein she held at §27 that the first-instance decision was “tantamount to an advice on proofs for the applicant in the context of any appeal to the Tribunal”, in submitting that it was unclear what more of an advice on proofs the applicant could have been given in this case, and that he had the opportunity to submit additional COI in his appeal to the Tribunal, and to make the arguments he wished as regards any errors made by the IPO.

108. Lastly, the respondents submitted that the statement of grounds contained no plea either that the IPO failed to obtain and/or examine precise and up-to-date COI or that the IPO erred in relying on the sources of COI that it relied upon and that the applicant had therefore not been granted leave to make any such claims. However, it was pleaded in the statement of grounds that the IPO irrationally determined that the applicant’s evidence was inconsistent with COI, and that the supportive elements of COI were not mentioned in the determination, and I am of the view that this plea broadly encompasses the applicant’s complaints under this heading.

109. On balance, however, it seems to me that this element of the applicant’s claim must fail and, as such, I do not need to decide upon the adequacy (or otherwise) of the

Page 54 of 60 COI available before the IPO. The complaints made by the applicant as regards the findings arrived at by the IPO are classic grounds for an appeal to the Tribunal and I am unable to ascertain any defect in the decision-making process resulting in a “fundamental denial of justice” as envisaged by the Supreme Court in AB. All issues as raised by the applicant under this heading, and as set out above, may be raised with and fully argued before the Tribunal on appeal. In such circumstances, the applicant cannot be disadvantaged by the refusal of an order of certiorari on this ground.

Whether the IPO acted in breach of s.28(5)(a) of the Act, and or unreasonably, in failing to have any, or adequate, regard to the applicant’s age and expected level of understanding, where he was questioned extensively about the political situation and insurgences in his region in Afghanistan from 2015

110. The applicant left Afghanistan, in 2021, when he was 19 years of age. It is clear from the s.35 report and as mentioned above, that the applicant was questioned at interview about the political situation in his region in Afghanistan from in or around 2015, being the year he identified at interview in which he started having trouble from the Taliban. The applicant was born in March 2002 and he was thus 13-14 years of age in 2015 (albeit that the statement of grounds, apparently erroneously, refers to the applicant being aged 15 in 2015). The fact that the applicant was a child at the time meant that the provisions of s.28(5) of the Act – as set out at §8 above – were engaged and the IPO ought to have taken account “of the applicant’s age ….. and the level of understanding that could reasonably be expected of a child of that age” when questioning the applicant about occurrences and circumstances pertaining in his locality. It is clear from the wording of s.28(5) that the relevant age is the age of the child at the time of any relevant occurrence or any time during which a relevant circumstance existed, and not the age of an applicant when departing or fleeing a country of origin or when being interviewed by the IPO.

111. The applicant relied on an EUAA analysis “Evidence and credibility assessment in the context of the Common European Asylum System”, Judicial analysis, Second edition (February 2023) in submissions to the Court and, more particularly, section 5.2.4 thereof, dealing with specific factors to be taken into account in the case of

Page 55 of 60 minor applicants. Whilst the respondents noted, by way of written submissions, that this EUAA guidance had been binding on the IPO since July 2023, this position, it seems to me, may be based upon an erroneous interpretation of Regulation (EU) 2021/2303 (the “2021 Regulation”) Commission Decision (EU) 2023/1576 confirmed the State’s decision to participate in the 2021 Regulation, Article 11(3) of which provides that “Member States shall take into account the common analysis and guidance notes when examining applications for international protection, without prejudice to their competence to decide on individual applications for international protection.” However, it seems that the judicial analysis relied upon by the applicant is an analysis simpliciter and not a “common analysis and guidance note” within the wording of the 2021 Regulation and therefore, it seems to me that Member States are not obliged to take this judicial analysis into account in the sense of Article 11(3). In contrast, the Country Guidance notes published by EUAA are sub-headed “Common Analysis and Guidance Note”, and it is stated in their respective introductions that “[i]n accordance with Article 11(3) EUAA Regulation, Member States have the obligation to take into account the common analysis and guidance notes when examining applications for international protection, without prejudice to their competence to decide on individual applications.” This proviso does not appear in the introduction to the judicial analysis and the text of the judicial analysis itself refers to common analysis and guidance notes as a specific type of publication, referable solely to COI.

112. In any event, counsel for the applicant noted that Section 5.2.4 of this judicial analysis included reference to a 2015 study by the Hungarian Helsinki Committee which sought to summarise the main hazards in applying the ordinary standards used in assessing credibility to minors, before going on to conclude that: “Some Member States apply the approach set out in the UNHCR Handbook which in assessing credibility states that ‘if the applicant’s account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’. UNHCR also recognises that assessment of the credibility of a minor may ‘call for a liberal application of the benefit of the doubt’. In all Member States, irrespective of whether such approach is adopted, assessment of the credibility of a minor must make due allowances for age and degrees of vulnerability.”

Page 56 of 60 113. Counsel for the applicant noted that the applicability of the Hungarian Helsinki Committee principles did not appear to have been previously determined by the Irish Courts but it seems to me that the reasoning of Phelan J in MH as regards the EASO Practical Guide: Evidence Assessment (and as set out in more details at §59 above) can equally be applied to the EUAA Evidence and credibility assessment in the context of the Common European Asylum System. Furthermore, as noted by Phelan J at §85 of MH: “In the introduction to the EASO Practical Guide to Evidence Assessment of March 2015 it is stated: “The guide was created by experts from Member States, facilitated by EASO. A Reference Group, including the European Commission and UNHCR, further provided valuable input. Material provided by the Reference Group such as the UNHCR ‘Beyond proof: Credibility Assessment in EU Asylum Systems’ and the Hungarian Helsinki Committee ‘Credibility Assessment in Asylum Procedures: Multidisciplinary Training Manual’ were important sources of information for drafting this practical guide. The guide was then consulted and accepted by all Member States. It is the product of combined expertise, reflecting the common standards and the shared objective to achieve high quality asylum procedures”,

and again noting that whilst Ireland has not opted into the recast Directive, the EASO Guide, and by extension, the Hungarian Helsinki Committee ‘Credibility Assessment in Asylum Procedures: Multidisciplinary Training Manual’, in the words of Phelan J in MH “provides an accessible statement of applicable principles potentially of assistance to decision makers in this jurisdiction identifying the proper approach by them to the discharge of their functions in accordance with Ireland’s protection obligations.”

114. The determination, on its face, does not take into account the age of the applicant at the relevant time and there is no indication that the IPO either afforded “a liberal application of the benefit of the doubt” (in line with the UNHCR Handbook) to the applicant or assessed his credibility in accordance with the Hungarian Helsinki Committee principles. Whilst the determination sets out at Section 3 (“Legal Basis for Assessment”) the provisions of s.2 of the Act insofar as they relate to the definition of “refugee” and the definition of “serious harm”, the determination

Page 57 of 60 neither records, nor mentions, the provisions of s.28(5) of the Act nor the age of the applicant in 2015 and there is no evidence that the applicant’s age had any bearing on the decision-making process. During the hearing, counsel for the applicant submitted that the protections which exist where minors are giving evidence should apply to the present case, noting that the reason why minors are treated differently is because they experience things differently and, for example, a now adult (who was 13 or 14 at the relevant time, with relatively limited education) is not going to comprehend or be able to explain local politics and geography in the same way that an adult (who was an adult at the relevant time) would be able to.

115. However, the respondents noted that the IPO questioned the applicant about the situation in his home region and village from 2015 up to the time the applicant left (in 2021, aged 19) and that in those circumstances, s.28(5) had no application since the applicant would be expected, by the time he reached adulthood, to have acquired an adult understanding of the situation in the area in which he was living and the IPO decision was based on the applicant’s inability to provide sufficient detail and/or give details consistent with the COI put to him in respect of the entire period covered by the questioning up to a point where the applicant was an adult.

116. Further, during the hearing, counsel for the respondents submitted that the applicant’s general position that the applicant answered the questions adequately (in terms of giving sufficient detail in response to the questions asked) was at odds with the argument that the IPO should have taken into account the applicant’s age at the time of events – in the sense that the applicant cannot maintain that his account was accurate and thorough, whilst simultaneously putting forward that his age at the time of events mitigated his understanding of local politics and geography. However, it seems to me that the reality is not quite so black and white and certainly as regards the applicant’s answers at interview, there is no evidence that his age (for at least part of the time covered by the interview questions) was considered by the IPO at all. His account may have been accurate and detailed within the realm of understanding that a teenager might be anticipated or expected to have, but this lens of interpretation was seemingly not applied by the IPO to the applicant’s account of events.

Page 58 of 60 117. But all of that said, it appears to me that the applicant’s complaints under this heading are also classic grounds for appeal and for the same reasons as expressed at §109 above, this element of the applicant’s claim must therefore fail.

Conclusion

118. Thus, and for the reasons as set out above, I will grant an order of certiorari of the determination made by the IPO on 29 February 2024 and notified to the applicant on 22 April 2024, on grounds (e)(i) and (e)(ii) of the statement of grounds dated 17 May 2024 and filed on the same date, with a further order remitting the application to the IPO for a fresh determination by a different international protection officer. For the avoidance of doubt (and given that I did not find for the applicant on the issues as set out at §23.b and §23.c above), the order of certiorari applies to the entire determination and the issues as set out at §23.b and §23.c above may be further canvassed on behalf of the applicant before a different decision-maker in the IPO. I will also place a stay on all orders in the event of an appeal being maintained by either party within 28 days of the perfection of the order, such stay to remain in force until the first return date in the Court of Appeal, and in the event of no notice of appeal being filed within such 28-day period, the stay is to be lifted.

Costs

119. Pursuant to s.169 of the Legal Services Regulation Act 2015, costs should follow the event “unless the court orders otherwise, having regard to the particular nature and circumstances of the case, and the conduct of the proceedings by the parties”. In circumstances where the applicant has succeeded in his application (albeit not on all grounds put forward), and there is nothing of note concerning the particular nature and circumstances of the case, or the conduct of the proceedings by the parties, which might permit me to order otherwise, I am inclined to award the costs of the proceedings to the applicant.

120. However, it is open to the parties to contend for the making of a different form of costs order and should either party wish to file submissions (of not more than 1,000

Page 59 of 60 words) in this regard, they should do so within seven days of this judgment being delivered. In the event of submissions being filed, this matter will be listed, in person, for 10:45 on 14 July 2026 in order to hear the parties as regards costs and in the event of submissions not being filed with seven days of this judgment being delivered, an order in the substantive matter will be perfected in line with §118 above, together with a costs order in line with §119 above.

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