Not necessarily it depends on what the banks definition of "variable interest Mortgage loan" is, and unless their is a clear definition of the term in the contract, that term could be used to describe a tracker.
For example the BOI contract never mentions the word tracker.
To be honest, I don't think there is any reality to that argument but it would be great if you could post the relevant provisions from the BOI loan offer for comparison.
I did a bit more digging and discovered that Clause 3.2 of the conditions to at least some loan offers issued by AIB in 2007 was worded as follows:
"At the end of any fixed interest period, the Customer may choose between:
(a) a further fixed interest period, or
(b) conversion to a variable interest rate Mortgage Loan
(c) conversion to a tracker interest rate Mortgage Loan
at the bank's then
prevailing rates appropriate to the Mortgage Loan. If the customer does not exercise this choice, then the Mortgage Loan will automatically convert to the variable interest rate Mortgage Loan."
If Clause 3.2 of Rodger's loan offer contained that wording then I think he would have a very strong argument that he should be entitled to default back to a tracker and possibly even the tracker rate as per his original loan offer. However, the precise wording of his particular loan offer is critical in this regard.
In absence of wording along these lines, I think Rodger will have to hope that the Central Bank decides a failure on the part of AIB to specifically point out that he would lose his tracker by fixing was a breach of the Consumer Protection Code and orders AIB to restore trackers to all borrowers in similar circumstances. That is certainly a possibility but I'm not sure how much confidence borrowers should place in this process. Brendan and Padraig Kissane are obviously closer to the Central Bank's current review and may be in a position to offer a more meaningful comment.