1. Introduction

M.Y. v International Protection Appeals Tribunal & Anor (Approved) is a landmark judgment delivered by the High Court of Ireland on May 13, 2022. The case revolves around M. Y., an Algerian national and member of the Berber Amazigh ethnic group, who sought international protection in Ireland. The core issues addressed include the application of Section 28(6) of the International Protection Act 2015, the consideration of country of origin information (COI), and the relevance of the UK Supreme Court's decision in HJ (Iran) v Secretary of State for the Home Department [2011] 1 AC 596 to cases involving political opinions.

The applicant challenged the decision of the International Protection Appeals Tribunal, which had affirmed the International Protection Office's recommendation to deny him refugee status or subsidiary protection. This commentary delves into the intricacies of the judgment, analyzing its legal reasoning, citations of precedent, and potential impact on future asylum cases.

2. Summary of the Judgment

The High Court, presided over by Mr. Justice Cian Ferriter, reviewed the judicial merits of M. Y.'s application for international protection. The Tribunal had denied his claims based on the assessment that past persecution did not indicate a well-founded fear of future persecution, among other procedural considerations. The applicant focused his challenge on three main grounds:

• The Tribunal erred in expecting him to conceal his political beliefs to avoid persecution.
• The decision was contrary to Section 28(6) of the International Protection Act 2015, as it failed to recognize the continuity of past persecution implying future risk.
• The Tribunal breached fair procedures by not considering all submitted COI documentation.

Upon review, the High Court found that the Tribunal had improperly applied Section 28(6), failing to recognize the rebuffable presumption that past persecution establishes a well-founded fear of future persecution. Consequently, the High Court quashed the Tribunal's decision and remitted the case for reconsideration by a different Tribunal member.

3. Analysis

3.1. Precedents Cited

The judgment extensively engages with both Irish and international case law to substantiate its reasoning:

• HJ (Iran) v SSHD [2011] 1 AC 596: A seminal UK Supreme Court decision that established the principles surrounding the requirement for asylum applicants not to be forced into concealing protected characteristics or beliefs as a condition for protection.
• IL v IPAT [2021] IEHC 106: Reinforced the necessity for tribunals to explicitly consider Section 28(6) when past persecution is acknowledged.
• NU v IPAT [2022] IEHC 87: Further affirmed the application of Section 28(6) and echoed the importance of clear articulation of rebuttable presumptions in decisions.
• MSM (journalists; political opinion; risk) [2015] UKUT 413 (IAC): Demonstrated the applicability of HJ (Iran) principles beyond cases involving sexual orientation, extending to political opinion grounds.
• CJEU Joined Cases C-71/11 and C-99/11 Y and Z (2012): Clarified that the possibility of avoiding persecution by abstaining from certain practices does not negate the existence of a well-founded fear of persecution.
• GK v Minister for Justice [2002] 2 IR 418: Established the necessity for applicants to provide evidence when claiming that decision-making authorities ignored relevant submissions.

3.2. Legal Reasoning

The High Court's analysis centered on whether the Tribunal appropriately applied Section 28(6) of the International Protection Act 2015. Section 28(6) creates a rebuttable presumption that past persecution or serious harm indicates a well-founded fear of future persecution or harm. To uphold an asylum claim, it is incumbent upon the assessing authority to provide explicit reasoning if it intends to rebut this presumption.

Justice Ferriter scrutinized the Tribunal's decision, noting the absence of explicit reference to Section 28(6). Although the Tribunal acknowledged past persecution, it failed to articulate reasons justifying the rebuttal of the presumption. This omission constituted an error of law, as it deprived the applicant of the benefit afforded by Section 28(6).

Furthermore, the Court examined the applicability of the HJ (Iran) principles beyond sexual orientation, affirming their relevance to political opinion. The decision emphasized that requiring an applicant to conceal a protected characteristic or belief undermines the very protection asylum laws aim to provide.

3.3. Impact

The judgment has significant implications for future asylum cases, particularly regarding the application of rebuttable presumptions under Section 28(6). It underscores the necessity for tribunals to:

• Explicitly acknowledge and address Section 28(6) when past persecution is present.
• Provide clear reasoning when rebutting the presumption, ensuring transparency and fairness.
• Apply principles from HJ (Iran) consistently across different grounds of persecution, including political opinion.

By enforcing strict adherence to procedural requirements, the judgment enhances the integrity of the asylum assessment process, ensuring that applicants receive a fair evaluation of their claims.

4. Complex Concepts Simplified

4.1. Rebuttable Presumption (Section 28(6))

Definition: A legal presumption that is assumed to be true unless compelling evidence is presented to the contrary.

In Context: If an asylum applicant has experienced past persecution or serious harm, it is presumed that they have a well-founded fear of future persecution unless the authorities provide strong reasons to the contrary.

4.2. Country of Origin Information (COI)

Definition: Data and reports about the conditions in an applicant's home country relevant to their asylum claim.

In Context: COI helps assessors determine the likelihood of persecution or harm if the applicant were to return.

4.3. HJ (Iran) Principles

Definition: A framework established by the UK Supreme Court outlining that asylum applicants should not be required to conceal protected characteristics or beliefs to avoid persecution.

In Context: These principles ensure that asylum laws protect individuals without imposing unreasonable conditions on their behavior.

5. Conclusion

The High Court's decision in M.Y. v International Protection Appeals Tribunal & Anor serves as a pivotal reference in the realm of asylum law. By emphasizing the imperative application of Section 28(6) and the principles derived from HJ (Iran), the judgment fortifies the procedural safeguards essential for fair asylum assessments. It ensures that applicants are not unjustly burdened with the expectation to conceal protected characteristics or beliefs, thereby upholding the humanitarian objectives underpinning international protection laws.

Moving forward, tribunals must internalize the insights from this judgment to ensure meticulous adherence to legal standards, fostering a more equitable and transparent asylum determination process.