Establishing the Distinction Between Real Risk of Serious Harm and State Protection in Subsidiary Protection Cases: N.G. v IPAT [2023] IEHC 535

Introduction

The case of N.G. v The International Protection Appeals Tribunal & Ors ([2023] IEHC 535) was adjudicated by the High Court of Ireland on September 29, 2023. The Applicant, N.G., an Albanian national, challenged the decision of the International Protection Appeals Tribunal (the Tribunal) which refused his application for subsidiary protection. The core dispute revolved around whether the Tribunal erred in law by acknowledging a real risk of serious harm to the Applicant but concurrently determining that state protection in Albania was available.

Summary of the Judgment

The High Court extensively reviewed the Tribunal's decision, which had found that while the Applicant faced a real risk of serious harm in Albania due to past threats and the murder of his business partner, state protection was deemed available. The Applicant contended that the Tribunal misapplied legal provisions, particularly sections 2, 28(6), 31, and 33 of the International Protection Act 2015, arguing that the concepts of “well-founded fear of persecution” and “real risk of serious harm” should render subsidiary protection automatic regardless of state protection. However, the High Court upheld the Tribunal’s decision, affirming that assessing the risk of harm and the availability of state protection are distinct yet interconnected steps in determining eligibility for subsidiary protection.

Analysis

Precedents Cited

The judgment extensively referenced multiple precedents to elucidate the legal framework governing subsidiary protection:

X.S. and J.T. v IPAT [2022] IEHC 100: Established the necessity to demonstrate the unavailability of state protection amidst a well-founded fear of persecution.
E.S. v IPAT [2022] IEHC 613: Affirmed the creation of a rebuttable presumption under section 28(6) of the 2015 Act, emphasizing that past persecution indicates a real risk of future harm unless countered by good reasons.
T.A. v IPAT & Ors. [2023] IEHC 390: Reinforced the distinction between the risk of harm and state protection, rejecting the notion that they are synonymous.
ABO v Minister for Justice [2008] IEHC 191: Introduced the presumption of state protection absent a complete state apparatus breakdown.
BC v IPAT [2019] IEHC 763: Outlined the critical questions a Tribunal must address when assessing state protection, including the effectiveness and accessibility of such protection.

Legal Reasoning

The High Court delved into the statutory interpretation of the International Protection Act 2015, particularly focusing on sections 2 and 28(6). The Applicant's argument hinged on the assertion that recognizing a real risk of serious harm should automatically entitle him to subsidiary protection, thereby negating the necessity to evaluate state protection. However, the Court, referencing the Qualifications Directive 2004/83/EC and pertinent case law, clarified that:

Assessing the risk of harm and the availability of state protection are separate elements within the subsidiary protection framework.
Section 28(6) imposes a rebuttable presumption that past persecution indicates a real risk of future harm, but this presumption must be weighed against the effectiveness and availability of state protection.
The Tribunal's methodical approach in first establishing the risk and then evaluating state protection aligns with established legal principles.

Furthermore, the Court upheld that the Tribunal properly engaged with country-of-origin information (COI) and the Applicant's specific circumstances to determine the availability and efficacy of state protection in Albania.

Impact

This judgment reinforces the necessity for Tribunals and Courts to maintain a clear separation between assessing the risk of persecution or serious harm and evaluating the availability and effectiveness of state protection mechanisms. The decision underscores that even if a real risk of harm exists, subsidiary protection may still be denied if credible and effective state protection is available. This has significant implications for future subsidiary protection claims, emphasizing the importance of thoroughly analyzing both elements in tandem.

Complex Concepts Simplified

Understanding the legal framework for subsidiary protection involves grasping several key concepts:

Real Risk of Serious Harm: This refers to the genuine possibility that an individual may suffer significant harm if returned to their home country. It encompasses threats to life, physical integrity, or freedom due to various factors like criminality, political instability, or social conflicts.
State Protection: This assesses whether the individual's home country has effective mechanisms in place to protect them from the identified risks. Effective protection implies that the state can and will intervene to prevent harm.
Rebuttable Presumption (Section 28(6)): If an individual has previously faced persecution or serious harm, there is a presumption that they will face similar risks in the future, unless compelling reasons suggest otherwise.
Country-of-Origin Information (COI): These are reports and data from reliable sources that provide insights into the conditions in the individual's home country, particularly regarding human rights, legal systems, and protection mechanisms.

Conclusion

The High Court's decision in N.G. v IPAT [2023] IEHC 535 serves as a pivotal affirmation of the established legal principles governing subsidiary protection in Ireland. By delineating the distinct yet interconnected processes of assessing the risk of serious harm and evaluating state protection, the Court has reinforced the meticulous approach required in such determinations. This ensures that subsidiary protection is granted only when individuals are genuinely at risk and lack access to effective state protection, thereby maintaining the integrity and specificity of international protection laws.