The Supreme Court has allowed an appeal against a Court of Appeal judgment which allowed for a severed order of certiorari concerning a decision of the International Protection Appeals Tribunal (IPAT).
The case concerned a South African mother and her two minor children who applied for international protection in Ireland in 2016. In March 2021, the IPAT accepted that the children, due to their mixed ethnicity, and their mother, by association, faced a risk of persecution. However, the Tribunal denied refugee and subsidiary protection status on the basis that adequate state protection was available in South Africa.
The applicants sought judicial review of the state protection finding. While all parties accepted that the IPAT's assessment of state protection was legally flawed, the respondents argued that only that part of the decision should be quashed, thereby preserving the Tribunal’s favourable findings on their fear of persecution. The State contended that the entire decision should be set aside and remitted for fresh consideration.
The High Court agreed ruled to quash the full decision, citing the need for the two central elements, persecution and protection, to be assessed together using up-to-date country of origin information (‘COI’).
However, the Court of Appeal took the opposite view, holding that the findings could be severed as they were legally and logically distinct. The Court applied principles from administrative law, concluding that where the flawed part of a decision can be excised without distorting the balance of the remainder, severance is generally appropriate, unless it leads to procedural unfairness or legal inconsistency.
Delivering the unanimous judgment of the Supreme Court, Ms Justice Iseult O’Malley rejected the severance approach endorsed by the Court of Appeal. She emphasised that, in asylum proceedings involving alleged persecution by non-state actors, the applicant’s fear and the adequacy of state protection are “inextricably entwined” and must be assessed together in a holistic and up-to-date manner.
Citing case law from Ireland, the UK and Canada, the Court affirmed that international protection operates as a surrogate for national protection. Therefore, assessing whether an individual’s fear of persecution is well-founded necessarily requires a concurrent assessment of whether their state can and will protect them.
The Court criticised the Court of Appeal for drawing inappropriate analogies with constitutional law principles, noting that while administrative decisions can be severed in some circumstances, such an approach is ill-suited to protection decisions that hinge on evolving country conditions. The appropriateness of severance, the Court held, depends on whether the flawed element can be reconsidered independently without compromising the integrity of the original decision. In this case, it could not.
Ms Justice O’Malley further held that the judicial review court was not best placed to determine whether COI remained current, that assessment belonged to the administrative decision-maker. The Court also expressed concern over the limited role played by IPAT in the litigation and its shared legal representation with the Minister for Justice, raising questions about institutional independence under s.61(3)(b) of the International Protection Act 2015.
The Supreme Court allowed the appeal, quashing the entire IPAT decision. The matter is to be remitted for fresh determination on both persecution and state protection grounds. The judgment clarifies that severed relief in protection cases will rarely be appropriate where factual findings are interdependent and subject to change.