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.) -v- International Protection Appeals Tribunal

• Jurisdiction: Ireland
• Court: Supreme Court
• Judge: Charleton J.,O'Malley J.,Woulfe J.,Collins J.,Donnelly J.
• Judgment Date: 25 July 2025
• Neutral Citation: [2025] IESC 38
• Docket Number: S:AP: IE:2024:000150

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.)

Respondents

and

International Protection Appeals Tribunal

and

The Minister for Justice

Appellants

[2025] IESC 38

Charleton J.

O'Malley J.

Woulfe J.

Collins J.

Donnelly J.

S:AP: IE:2024:000150

AN CHÚIRT UACH

TARACH THE SUPREME COURT

International protection – Fear of persecution – Severance – Respondents seeking international protection – Whether the first appellant’s decision was verbally severable

Facts: The first appellant, the International Protection Appeals Tribunal (the Tribunal), found that (a) the respondents had shown a well-founded fear of persecution but (b) they were able to avail of State protection. It was accepted by all the parties to the appeal that conclusion (b) was flawed and that the respondents were entitled to an order of certiorari. The dispute, and the only issue in the appeal to the Supreme Court, was as to whether the order should apply only to that flawed part of the decision, as the respondents contended (with the effect that they would retain the benefit of the finding in respect of fear of persecution), or to the entirety of the decision, as the appellant State parties contended (with the effect that the entire matter would be reconsidered). In the High Court, Bolger J agreed with the arguments put forward by the appellants ([2023] IEHC 589). She accepted that while it was possible to make a partial, or severed, order for certiorari, in this case certiorari of the entire decision was more appropriate. The Court of Appeal reached the opposite conclusion ([2024] IECA 186). The appellant State parties accepted that severance is an established principle of law and did not contend that it can never be appropriate to sever aspects of a Tribunal decision. They maintained, however, that it was not legally possible on the facts of this case, on the basis that it would involve a breach of the Tribunal's obligations under Irish and EU law to make a fully ex nunc decision. The respondents agreed with the Court of Appeal that the Tribunal decision was verbally severable, and they argued that the appellants had not demonstrated the contrary.

Held by O’Malley J that the State parties were correct in saying that the relationship between the two elements to be assessed was too close to separate them in the fashion proposed by the Court of Appeal. She found the analysis of the relationship between the two elements by the Supreme Court of Canada in Canada (Attorney General) v Ward [1993] 2 S.C.R. 689 and by the House of Lords in R. v Secretary of State for the Home Department, ex parte Adan [1999] 1 AC 293 and Horvath v Secretary of State [2000] UKHL 37 to be convincing since international protection is provided by way of surrogate for national protection; it follows that the question of fear of persecution is inextricably entwined with the question of State protection and the two elements must be assessed by reference to each other.

O’Malley J considered that the inevitable temporal gap involved before a judicial review challenge to an asylum decision is finally determined means that severance of the two elements is likely to be highly undesirable; in this case, severance was only possible because the Court of Appeal made a finding that the country of origin information relating to persecution was unlikely to have changed. She held that this is an assessment that is properly the role of the decision-maker and not that of a judicial review court. She allowed the appeal.

Appeal allowed.

Judgment of Ms Justice Iseult O'Malley delivered the 25 ^th day of July 2025

Introduction

1 . The definition of a refugee set out in s.2 of the International Protection Act 2015 refers, in relevant part, to 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 their country of nationality and is unable or, owing to such fear, to avail themselves of the protection of that country.

2 . In this case, the International Protection Appeals Tribunal found a) that the respondents had shown a well-founded fear of persecution but b) that they were able to avail of State protection. It is accepted by all the parties to the appeal that conclusion b) was flawed and that the respondents were entitled to an order of certiorari. The dispute, and the only issue in the appeal, is as to whether the order should apply only to that flawed part of the decision, as the respondents contend (with the effect that they would retain the benefit of the finding in respect of fear of persecution), or to the entirety of the decision, as the appellant State parties contend (with the effect that the entire matter would be reconsidered).

3 . In the High Court, Bolger J. agreed with the arguments put forward by the appellants (see BD, TD and MD v The International Protection Appeals Tribunal [2023] IEHC 589). She accepted that while it was possible to make a partial, or severed, order for certiorari, in this case certiorari of the entire decision was more appropriate.

4 . The Court of Appeal reached the opposite conclusion (Hogan, Whelan and Meenan J.T.-see [2024] IECA 186).

Background facts

5 . The respondents are South African nationals. The first named respondent is the mother of the two minor respondents. She is of Boer/Afrikaner descent, while the children's father (who has also applied for protection) is an Algerian of Berber ethnicity.

6 . The respondents applied for protection in this State in October 2016. The initial decision was made by an International Protection Officer, who considered that they had not established a well-founded fear of persecution or substantial grounds for believing that they faced a real risk of suffering serious harm. They then appealed to the International Protection Appeals Tribunal (“the Tribunal” or “the IPAT”).

7 . At a hearing before the Tribunal in September 2019, the first named respondent and her husband recounted various personal experiences of verbal abuse, violence and thefts which they believed to have been racially motivated.

8 . The Tribunal, in a decision issued in March 2021, accepted the truth of some (though not all) of what had been asserted. Having considered a range of country-of-origin information (“COI”) it concluded that the first named respondent would not face persecution simply on the basis of being a white woman. The Tribunal did, however, find that the COI established that there was a high level of xenophobic assaults in South Africa and that foreign nationals from other African countries, such as the husband, were likely to be targeted. The children were likely to face persecution due to their mixed ethnicity, and their mother would be subject to the same likelihood due to her connection with them. A similar finding was made in respect of the question of subsidiary protection.

9 . The Tribunal concluded, however, that State protection was available to the respondents. Accordingly, the decision was that neither refugee status nor subsidiary protection should be granted.

The High Court

10 . The respondents initiated judicial review proceedings in which they sought an order of certiorari in respect only of the IPAT finding on State protection. As noted above, it was agreed by the parties that an order of certiorari should be made, and the dispute was as to its scope.

11 . Bolger J. acknowledged that the court had jurisdiction to grant partial certiorari and referred in that regard to Bord na Móna v. An Bord Pleanála [1985] I.R. 205, HAA (Nigeria) v. MJE [2018] IEHC 34, AA (Pakistan) v. IPAT [2018] IEHC 497, NNM v. IPAT [2020] IEHC 590 and PAF (Nigeria) v. IPAT [2019] IEHC 204.

12 . In the Bord na Mona case Keane J. upheld a challenge to a condition attached to a planning permission for the erection of a factory. Keane J. held that in the circumstances of the case he could not sever the condition and leave the permission in being.

13 . In HAA Humphreys J. found it possible to quash part only of the impugned decision, seeing the jurisdiction to do so as consistent with the “increasing flexibility of response and remedy in the ever-developing field of judicial review” (quoting Simon Brown J. in R. v Inner South London Coroner, ex p. Kendall [1988] 1 W.L.R. 1186). The reason he saw it as appropriate in HAA, a challenge to a refusal to revoke a deportation order, was that the reasoning of the decision-maker on one particular aspect of the applicant's claim was unclear and it was therefore only that aspect that needed to be reconsidered. It may be noted here that Cooke J. had made a similar order in USI v Minister for Justice, Equality and Law Reform [2011] IEHC 144 where, again, the only flaw found by the Court was a failure to adequately explain the Tribunal's reasoning on one issue.

14 . Similarly, in AA only one aspect of the applicant's judicial review challenge to a refusal of both asylum and subsidiary protection succeeded in the High Court. Humphreys J. found that the Tribunal member had not applied the correct test in deciding on the issue of internal relocation in the context of subsidiary protection. In those circumstances, only that part of the decision was quashed, leaving the rejection of the asylum application intact, and the matter was remitted. However, a different conclusion was reached in JM (Malawi) v IP AT [2018] IEHC 663. There, the decision-maker was held to have erred in refusing to consider a relevant decision made by another Tribunal member and in failing to deal in his analysis with the issue of non-State actors. Humphreys J. saw these errors as having a knock-on effect on “too significant a portion” of the decision to make it meaningful to consider a partial quashing. A partial order was also made by Burns J. in ...