B.D. and Others v International Protection Appeals Tribunal and Another

• Jurisdiction: Ireland
• Judge: Mr. Justice Gerard Hogan
• Judgment Date: 30 July 2024
• Neutral Citation: [2024] IECA 186
• Court: Court of Appeal (Ireland)
• Docket Number: CA No. 2024/26

Between/

B.D., T.D. (A Minor Suing by His Mother and Next Friend, B.D.) and M.D. (A Minor Suing by His Mother and Next Friend, B.D.)

Appellants

and

International Protection Appeals Tribunal and The Minister for Justice

Respondents

[2024] IECA 186

Hogan J.

Whelan J.

Meenan J.

CA No. 2024/26

AN CHÚIRT ACHOMHAIRC

COURT OF APPEAL

Refugee status – State protection – Fear of persecution – Applicants seeking partial severance of the first respondent’s decision to refuse refugee status – Whether the first respondent’s decision should be quashed in its entirety

Facts: The applicants were South African nationals. The first applicant was the mother of the second and third applicants. Their father was Algerian. The applicants applied for refugee status because they feared persecution in South Africa on the grounds that the children were mixed-race. Their application was refused at first instance by the International Protection Office. They subsequently appealed that decision to the first respondent, the International Protection Appeals Tribunal (the IPAT). In its decision of 23rd March 2021, the IPAT rejected parts of the applicant’s case but it did accept that the applicants faced a well-founded fear of persecution if they were to return to South Africa because of the second and third applicants’ mixed race. The IPAT was satisfied that State protection was available to the applicants. This latter conclusion meant that the applicants failed on the second limb of their case. By letter dated 2nd December 2021, the respondents agreed to the making of an order of certiorari quashing the decision of the IPAT in its entirety. It was concluded that the reasoning of the IPAT on the state protection issue was inadequate. In particular, the Tribunal member did not offer any view as to the adequacy of the state protection available to the applicants; it was not in itself enough to say that the country of origin was making endeavours to prevent the persecution if it should transpire that those efforts were themselves ineffective. Accordingly, while it was common case that the IPAT’s decision was flawed and should be quashed, the issue before the High Court at first instance and the Court of Appeal on appeal was whether (as the IPAT contended) that decision should be quashed in its entirety or whether (as the applicants contended) partial severance was possible, so that the only issue remaining open bears solely on the adequacy of state protection; if partial severance was possible, then the effect of this would be to preserve in the applicants’ favour the well-founded fear of persecution finding. The first applicant also said that she would find the experience of having to give evidence again on that issue distressing.

Held by Hogan J that he would allow the appeal by severing that aspect of the original decision of the IPAT dealing with state protection and which was conceded to be ultra vires, while preserving that aspect of the decision addressing the issue of well-founded fear. He held that while the CJEU’s decision in X. v. International Protection Appeals Tribunal (C-756/21: EU:C: 2023:523) emphasises the necessity to have up-to-date country of origin information in respect of all aspects of the decision on international protection, this ex nunc obligation should not be over-interpreted or over-extended such as to preclude the severance of aspects of the ultra vires decision on international protection where that remedy is otherwise appropriate.

Hogan J allowed the appeal to the extent indicated.

Appeal allowed.

JUDGMENT of Mr. Justice Gerard Hogan delivered on the 30 ^th day of July, 2024

Introduction

1 . In judicial review proceedings it has long been recognised that the High Court enjoys a power to sever part of an impugned decision so that the ultra vires aspects of that decision may be excised, with the remaining part of that (otherwise valid) decision thereby upheld. The question in this appeal is whether the High Court enjoys this power in respect of a decision of the International Protection Appeals Tribunal (“IPAT”), where the reasoning of part of whose decision dealing with state protection is acknowledged to be ultra vires. The essential question therefore is whether the entire decision must thereby fall or whether, as the applicants contend, that part of the decision which found that they were liable to suffer persecution should be allowed to stand.

2 . The issue arises in the following way. The applicants are South African nationals. The first applicant is the mother of the second and third applicants. Their father is Algerian. They ( i.e., the mother and the two children) applied for refugee status because they feared persecution in South Africa on the grounds that their children were mixed-race. Their application was originally refused at first instance by the International Protection Office, but they subsequently appealed this decision to the IPAT.

3 . In its decision of 23 ^rd March 2021, the IPAT rejected parts of the applicant's case but, critically, it did accept that the applicants faced a well-founded fear of persecution if they were to return to South Africa because of the second and third applicants' mixed race. It is only proper to acknowledge the exceptional quality of the detailed analysis contained in this decision, based as it was on up-to-date country of origin (“COI”) information.

4 . So far as the well-founded fear was concerned, the Tribunal member recorded (at paragraph 5.30 of the decision) that:

“…the Tribunal is satisfied that the level of xenophobia in South Africa is such that there is a reasonable likelihood that the appellant's dependant sons, if they were returned to South Africa, would face a well-founded fear of persecution on the basis of being of mixed-race ethnicity. In the light of that finding, the Tribunal is satisfied that the appellant herself would also be subject to the same likelihood due to her connection with her dependent sons.”

5 . Having found that the applicants faced a well-founded fear of persecution, the Tribunal member then went on to state at para. 5.40 and para. 5.41 of this decision that:

“It is clear from all of the COI that while there are issues with the police response to Xenophobic violence, efforts are made to deal with [such] violence. The State is resourcing the police and [is] making serious efforts to protect all the people residing within it. In light of all of the above, the Tribunal is satisfied that State protection is available to the appellant and her dependant sons.”

6 . This latter conclusion was critical because it meant that the applicants failed on the second limb of their case, namely, the adequacy of State protection. Had the IPAT ruled otherwise on this issue then in view of its conclusion on the first part of the case regarding well-founded fear of persecution the applicants would have been entitled to asylum status in the State.

7 . By letter dated 2 ^nd December 2021 the respondents agreed to the making of an order of certiorari quashing the decision of the IPAT in its entirety. While the correspondence from the IPAT's legal advisers did not quite say so in terms, one may infer that it was concluded that the reasoning of the Tribunal on the state protection issue was inadequate for this purpose. In particular, the Tribunal member did not offer any view as to the adequacy of the state protection available to the applicants: it is not in itself enough to say that the country of origin is making endeavours to prevent the persecution if it should transpire that those efforts are themselves ineffective.

8 . Accordingly, while it is now common case that the IPAT's decision is flawed and should be quashed, the issue before the High Court at first instance and this Court, on appeal, is whether (as the IPAT contends) that decision should be quashed in its entirety or whether (as the applicants contend) partial severance is possible, so that the only issue remaining open bears solely on the adequacy of state protection. If partial severance was possible, then the effect of this would be to preserve in the applicants' favour the well-founded fear of persecution finding. The first applicant, Ms. D., also says that she would find the experience of having to giving evidence again on this issue distressing.

The High Court Judgment

9 . In the High Court Bolger J. delivered a judgment on 24 ^th October 2023 in which she found against the applicants on the partial severance issue: see BD v. International Protection Appeals Tribunal [2023] IEHC 589. Applying the general principles enunciated by Keane J. in Bord na Móna v. An Bord Pleanála [1985] I.R. 205, she noted that the doctrine of severance had been applied to allow for the partial quashing of a range of administrative and, indeed, judicial decisions which had been tainted by ultra vires. She also noted that the principle had been applied to asylum cases (including HAA (Nigeria) v. Minister for Justice and Equality [2018] IEHC 34, AA (Pakistan) v. IPAT [2018] IEHC 497, NNM v. IPAT [2020] IEHC 590 and PAF (Nigeria) v. IPAT [2019] IEHC 204) where the underlying decision had not been quashed in its entirety.

10 . Bolger J. nevertheless concluded that severance was not possible in the present case. She took the view that the language of the International Protection Act 2015 (“the 2015 Act”), taken together with the requirements of the Qualification Directive 2004/83/EC and the Procedures Directive 2005/85/EC (as judicially interpreted by the CJEU) required that:

“This remitted application to be considered on an ex nunc basis by reference to such up-to-date information, including COI, as may be available. I am therefore granting certiorari of the Tribunal's decision and remitting the entire matter back to the Tribunal for a fresh hearing of the applicants' appeal.”

11 . The applicants have now...