About this case:

• Citation:
  [2025] IESC 38
• Judgment:
  External link
• Court:
  Supreme Court
• Judge:
  Ms Justice Iseult O'Malley

Delivering judgment for the Supreme Court, Ms Justice Iseult O’Malley emphasised that “the inevitable temporal gap involved before a judicial review challenge to an asylum decision is finally determined” means that in international protection decisions concerning alleged persecution by non-state parties, the severance of the decision on the two central elements of fear of persecution and availability of state protection “is likely to be highly undesirable”.

Background

The respondent South African nationals applied for international protection in the State in October 2016.

In a decision issued in March 2021, the IPAT concluded inter alia that the first named respondent would not face persecution simply on the basis of being a white woman, but that the minor respondents were likely to face persecution due to their mixed ethnicity and so too would the first respondent by virtue of being their mother.

However, the IPAT concluded that state protection was available to the respondents, deciding that neither refugee status nor subsidiary protection should be granted.

The respondents initiated judicial review proceedings in respect of the IPAT’s finding on state protection.

While all parties agreed that that conclusion was flawed and that the respondents were entitled to an order of certiorari, a dispute arose as to whether the order should apply only to the flawed part of the decision as contended for by the respondents, with the effect that they would retain the benefit of the finding that they had a well-founded fear of persecution, or to the entirety of the decision, with the effect that the entire matter would be reconsidered.

The High Court and Court of Appeal

In the High Court, Ms Justice Marguerite Bolger accepted that while it was possible to make a partial or severed order of certiorari, determinations as to persecution and state protection should be determined at the same time, on the basis of current and up-to-date, country of origin information (COI).

Having regard to all the circumstances, the High Court found that certiorari of the entire decision was more appropriate.

On appeal, the Court of Appeal found that since it was possible to verbally separate out the sections of the Tribunal decision dealing with the fear of persecution from those dealing with effective state protection, there were only two possible objections to severance — that it would have a distorting effect in respect of a unitary decision, or that it would be inconsistent with the ex nunc obligations imposed on the IPAT to obtain up-to-date COI pursuant to EU law.

The Court of Appeal was not satisfied that either objection had been made out, particularly where it considered that the COI was unlikely to have changed. The appellants appealed to the Supreme Court.

The Supreme Court

Ms Justice O’Malley observed that where a state is seen to directly persecute individuals belonging to protected categories, the question of whether the individuals can rely upon state protection is easily answered, but where a reasonable fear of persecution is said to emanate from non-state actors, the question then becomes the adequacy of available state protection against that risk.

Noting that those two issues are closely intertwined in that the available state protection must relate to the specific risk of persecution by non-state actors, the judge considered that the issue for the court was whether, notwithstanding that close link, the two aspects could properly be considered separately at different times and possibly by different decision-makers.

Having reviewed authorities from Ireland, the UK, Canada and the European Court of Human Rights, Ms Justice O’Malley emphasised that while the decision on refugee status is a very important one, “at bottom it is an administrative decision”.

The judge did not agree with the approach taken by the Court of Appeal, which drew an analogy with the approach taken to reviewing legislation on constitutional grounds and which laid down a principle that if the validity of an administrative action can be cured by excising the part which was ultra vires, that step should generally be taken unless it would have an unacceptably distorting effect on the balance of the decision, or would otherwise be unfair or inappropriate.

The court was satisfied that the appropriateness of severance and partial remittal of an administrative decision must depend firstly on whether the invalid part can be properly re-analysed without taking into account the elements involved in the part found to be valid, and that there should be no risk that a decision-maker would be fettered in reconsidering the remitted element in this way or constrained to reach a decision on the remitted element differently than if it had the opportunity to reconsider the decision in the round.

Ms Justice O’Malley highlighted: “These considerations are particularly important where, as here, the factual elements that must be assessed are subject to change over time.”

The judge considered that the IPAT’s decision assessed two central factors — whether there was a well-founded fear of persecution and whether, owing to that fear, the respondents could not avail themselves of protection in their own country.

The court was convinced by the analysis of the relationship between these two factors in Canada (Attorney General) v. Ward [1993] 2 S.C.R. 689, 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, noting that since international protection is a surrogate for national protection, the question of fear of persecution is inextricably entwined with the question of state protection and that the two elements must be assessed by reference to each other and on the basis of information that is up to date when the decision is made.

Declining the respondents’ request to make a reference to the Court of Justice of the EU as to inter alia the interpretation of Article 4 of the Qualification Directive (Directive 2004/83/EC), the court explained that the appropriateness of making a severed order of certiorari and partial remittal depends on the facts of the case and the nature of the flaw identified, but that “the obligation to reach an ex nunc assessment on the basis of up-to-date information precludes a final decision that is based to any appreciable extent on out of-date information” and severance should not be contemplated where this might be the result.

Ms Justice O’Malley further highlighted inter alia that it has been repeatedly held that judicial review procedures come under the principles of procedural autonomy and are to be governed by the national legal order unless issues of effectiveness and equivalence arise.

The judge concluded that severance was only found to be possible by the Court of Appeal where that court made a finding that the COI relating to the persecution of the respondents was unlikely to have changed, but that assessment was one more properly for the decision-maker and not a judicial review court unless a particular conclusion was “so overwhelmingly likely that the court could discount the possibility of change”, but that this was not the case in the proceedings before her.

The court also remarked, though did not express a definitive view, that the lack of any real participation by the IPAT in the proceedings and the joint representation of the IPAT and the minister for justice was of concern in light of inter alia the stipulation in s.61(3)(b) of the 2015 Act to the effect that the IPAT is to be independent in the performance of its functions.

Conclusion

Accordingly, the Supreme Court allowed the appeal.

B.D.and Ors v International Protection Appeals Tribunal & Anor [2025] IESC 38