High Court: Court quashes decision to refuse refugee status for South African nationals facing xenophobic violence
The High Court has quashed a decision of the International Protection Appeals Tribunal (IPAT) to refuse refugee status to two people who faced xenophobic violence in South Africa. The IPAT had determined that South Africa provided effective protection for the applicants from the alleged violence.
About this case:
- Citation: IEHC 817
- Court:High Court
- Judge:Mr Justice Cian Ferriter
However, the High Court held that the IPAT did not correctly apply the test for effective protection as found in BC v. IPAT  IEHC 763. In particular, the court held that the country of origin information did not support the IPAT’s conclusion that South Africa provided effective protection for the applicants.
The applicants were a father and his daughter. The father was born in the Democratic Republic of the Congo in 1962. He moved to South Africa in 1995 and became a citizen through marriage. His daughter was born in 2007 and was a South African national.
In March 2018, the applicants moved to Ireland. The father claimed to fear persecution in South Africa due to his race as a person originally from the DRC. In his international protection questionnaire, FM outlined that he had been subjected to xenophobic threats and abuse, as well as a violent incident in March 2018. He was injured with a knife and received further threats from his attackers. He feared that he and his daughter would be killed if they returned to the community.
In September 2019, the International Protection Officer recommended that the applicant not receive refugee status or subsidiary protection. The applicants appealed to the IPAT. Written submissions were delivered, where the applicants relied on, inter alia, Human Rights Watch reports and a US State Department report. The reports established that South Africa “failed to prevent or adequately respond to societal violence, particularly in response to attacks on foreign nationals”.
The IPAT dismissed the applicants’ appeal. It was reasoned that, while they had a well-founded fear of persecution, South Africa provided effective protection to them. The IPAT determined that the State “sometimes responded quickly and decisively to xenophobic incidents” and that overall incidents of violence were down since 2013.
It was also said that the number of attacks on foreign nationals was not determinative of whether effective protection was offered by the South African authorities. Although the IPAT found that xenophobic attacks were “clearly demonstrated” in the extracts, it was said that police action had been effective. This was determined despite the country of origin information stating that almost nobody had been convicted for xenophobic violence and that there were numerous reports of police impunity.
Delivering judgment in the case, Mr Justice Cian Ferriter considered the applicable legal principles. Under section 31 of the International Protection Act 2015, State protection against persecution must be effective and non-temporary.
Accordingly, the court adopted the test found in BC, where it was held that a court/tribunal should consider 1) whether the State took reasonable steps to prevent the persecution feared by an applicant; 2) whether such steps included operating an effective legal system for the detection and punishment of persecution and; 3) whether such protection was effective and non-temporary in nature.
The court then considered the information which was before the Tribunal. It was noted that South Africa only “sometimes” responded decisively to xenophobic incidents and that “responses were often slow and inadequate.” Further, assaults had only been reduced by evacuating non-nationals from xenophobic communities with little done to protect their property. It was also noted that the IPAT had failed to refer to information which stated that there was a failure to deter xenophobic attacks by the South African authorities. These mistakes amounted to errors in the Tribunal’s reasoning.
The court also held that the IPAT erred by holding that a “real effort” was made by South Africa to address xenophobic violence. The court stated that the test was not concerned merely with effort and that the “effort must be matched by non-temporary effectiveness, including the operation of an effective legal system for the detection, prosecution and punishment of acts constituting persecution or serious harm.”
It was therefore no answer that “a state is doing its incompetent best if it never the less falls below the appropriate standard [of protection].” (R (Atkinson) v. Secretary of State for the Home Department  All ER (D) 14. The unequivocal evidence in the country information was that there was not an effective legal system to prevent persecution under section 31 of the 2015 Act, the court said.
Finally, it was held that the Tribunal incorrectly relied on the US State Department report as an answer for the effective prosecution of xenophobic acts. The court held that the reliance on the material was a non-sequitur. It was held that the quoted extracts focused on the investigation of security force members who had committed abuses rather than the detection and punishment of xenophobic crimes generally. Accordingly, the Tribunal was wrong to rely on this information to support its findings.
The court concluded that the Tribunal failed to as itself the correct legal questions in the application. Based on the information before the IPAT, it could not be said that there was an effective system for the protection from violent xenophobic acts.
The court quashed the decision of the Tribunal. The court commented that the IPO and IPAT may be assisted in future decision-making by expressly referring to the questions set out in BC and applying them to the materials.