State Protection Must Be Assessed Through the Applicant’s Particular Risk Profile (Including Politically Powerful Non-State Persecutors)

1) Introduction

I.U. v The Internal Protection Appeals Tribunal and Anor (Approved) [2026] IEHC 360 is a High Court judicial review in which the applicant (a Nigerian national) challenged a decision of the International Protection Appeals Tribunal (“IPAT”/“the Tribunal”) dated 6 March 2025. The Tribunal had upheld the International Protection Office (“IPO”) recommendation to refuse refugee status and subsidiary protection.

The applicant’s accepted factual narrative was that a 2011 road traffic accident resulted in the deaths of two boys whose families were influential (one linked to a prominent politician; the other to a powerful businessman). The Tribunal accepted the applicant had been targeted thereafter (including arson, stabbing, and attacks on his family home). The central legal dispute in the High Court concerned whether IPAT lawfully assessed:

  • the statutory presumption arising from s.28(6) of the International Protection Act 2015 (past persecution as an indicator of future risk),
  • the availability of state protection in Nigeria in the applicant’s particular circumstances, and
  • the existence of a lawful internal relocation analysis.

2) Summary of the Judgment

Mr Justice Cian Ferriter held that the Tribunal’s treatment of s.28(6) contained an error (an inappropriate reversal of the presumption), but that this did not ultimately deprive the applicant of the benefit of the presumption because the Tribunal proceeded to consider state protection on the basis that future risk required assessment.

However, the High Court found a material legal error in the Tribunal’s state protection analysis: IPAT failed to engage with the applicant’s specific case that his feared persecutors were politically powerful/well-connected non-state actors and that, in combination with corruption vulnerabilities evidenced in country of origin information (“COI”), state protection would be ineffective for him personally.

The decision was quashed by certiorari and remitted for a fresh assessment by a differently constituted Tribunal. The Court also noted, though it was not necessary to decide, that the Tribunal’s internal relocation reasoning was inadequate because it did not apply the required structured test.

3) Analysis

3.1 Precedents Cited and Their Influence

(a) The s.28(6) presumption and how errors may (or may not) matter

The Court drew on MY v IPAT [2022] IEHC 345, where Ferriter J emphasised that s.28(6) is “a significant” presumption in the applicant’s favour: once past persecution/serious harm is established, the evidential/analytical burden shifts to the decision-maker to identify “good reasons” why it would not be repeated.

The respondents relied on NG v International Protection Appeals Tribunal [2023] IEHC 395, and the Court of Appeal approval in [2025] IECA 208, for the proposition that where a tribunal accepts future risk (whether by presumption or otherwise), refusal may still lawfully follow if state protection is available; thus, defects in framing the presumption may not be dispositive if the operative basis of refusal is state protection.

Ferriter J accepted the Tribunal erred in its articulation of the presumption (it wrongly phrased the inquiry as whether there was a good reason to consider repetition would occur). Nonetheless, consistent with NG, he treated the key question as whether the subsequent state protection analysis was lawful, because the Tribunal proceeded to address protection as if risk remained live.

(b) The legal requirement for an individualised state protection assessment

The Court relied on BC v International Protection Appeals Tribunal [2019] IEHC 763, where Barrett J held that the Tribunal must establish whether the state takes “reasonable steps” to prevent the harm feared by the particular applicant.

It also relied on NU v IPAT [2022] IEHC 87 (Phelan J), which explicitly required an “individual, personal consideration” of factors relevant to the applicant’s access to state protection, not a generalised assessment for nationals as a whole.

This line of authority was decisive: the High Court held that IPAT’s reasoning drifted into an assessment of police effectiveness regarding “ordinary crimes” and “normal police functions,” without addressing the applicant’s particular contention—protection against allegedly well-connected actors able to evade accountability in a corruption-susceptible system.

(c) Presumptions about state protection and the “clear and convincing evidence” formulation

IPAT cited OAA v. Refugee Appeals Tribunal [2007) IEHC 169 for the proposition that, absent “reliable and convincing proof to the contrary,” the state is presumed capable of protecting its citizens and rebuttal requires “clear and convincing evidence.”

Ferriter J did not reject OAA as such; rather, he found that even if one begins from a general presumption, the Tribunal still must evaluate rebuttal evidence in the correct factual frame. Here, the Tribunal acknowledged corruption in general terms but failed to grapple with the applicant’s specific theory of why corruption and power would defeat protection in his case.

(d) Internal relocation: structured two-step test and “high threshold”

Although not determinative (given the state-protection error), the Court reaffirmed internal relocation principles from:

  • K.D. (Nigeria) v Refugee Appeals Tribunal [2013] 1 IR 448 (Harding Clark J): a two-question test—(i) risk in the proposed area; if none, (ii) reasonableness of staying there.
  • NNM v IPAT [2020] IEHC 590 ((Tara) Burns J): an onus on the Tribunal to conduct a “careful analysis,” considering personal circumstances and ground conditions; a “high threshold” applies.
  • ES v International Protection Appeals Tribunal [2023] IEHC 613 (Phelan J): reiterated the “high threshold” and the need for careful consideration where internal relocation is the basis to refuse protection.

The Tribunal’s passing reference to suggested locations (Enugu, Ekiti, Abia) within a paragraph dealing with s.28(6) was, in the Court’s view, plainly insufficient to meet these requirements.

3.2 Legal Reasoning

(a) The s.28(6) presumption: recognised error, but not decisive on these facts

The Tribunal correctly identified that s.28(6) applied (past serious harm accepted). The High Court nevertheless found an unlawful formulation at paragraph 35 of the Tribunal decision, including:

  • a reversal of the statutory logic (“good reason to consider harm would be repeated” rather than “good reasons to consider it would not be repeated”),
  • an improper mixing of risk analysis with internal relocation (a distinct inquiry), and
  • a failure to engage with the applicant’s case that risk persisted despite the passage of time.

Yet, because the Tribunal went on to analyse state protection (and thus treated the risk question as still requiring resolution), the Court found the applicant was not, in substance, deprived of the benefit of the presumption. The case therefore turned on whether the state protection reasoning met legal standards.

(b) The core holding: state protection must be assessed through the applicant’s “particular circumstances”

The High Court’s central criticism was not that IPAT failed to cite COI or that it ignored corruption generally. Rather, it was that IPAT failed to connect the COI assessment to the applicant’s specific risk profile:

  • the accepted targeting arose from a conflict with families described as influential and politically connected;
  • the applicant’s case was that such influence would neutralise policing and accountability;
  • the COI relied upon by the applicant described corruption and vulnerabilities in policing;
  • IPAT’s reasoning instead focused on whether police investigate “ordinary crimes” and perform “normal functions,” without addressing whether they would be willing/able to protect against well-connected persecutors.

Ferriter J viewed the Tribunal’s omission as material and outcome-relevant: a protection assessment cannot remain at the level of general institutional functionality if the applicant’s case is that the feared harm comes from actors who can subvert or bypass that functionality.

(c) The significance of properly identifying the applicant’s case

The judgment highlights a practical administrative-law point: if a tribunal’s summary of the “material issues” omits a central plank (here, the persecutors’ influence), that omission can “infect” subsequent legal analysis. The Court treated the Tribunal’s failure to reference that feature as symptomatic of the deeper problem—an assessment conducted in the wrong frame.

3.3 Impact

(a) Tightening the discipline of “individualised” state protection analysis

The precedent reinforces that “state protection” determinations must be:

  • fact-sensitive to the applicant’s asserted persecutors and their reach,
  • COI-grounded but not merely generalised, and
  • responsive to the specific mechanism by which protection is said to fail (e.g., corruption, influence, impunity).

Tribunals can still conclude that protection exists even against powerful actors, but they must demonstrate they actually assessed that contention rather than defaulting to broad statements of state functionality.

(b) s.28(6) errors: when they will and will not vitiate a decision

The judgment suggests a pragmatic approach consistent with NG v International Protection Appeals Tribunal [2023] IEHC 395: even where a tribunal mis-states the s.28(6) presumption, the decision may survive if the tribunal in substance proceeds on the basis that future risk remains and refuses solely because protection is available. However, this will depend on the decision’s structure and whether the tribunal’s later reasoning truly proceeds on that basis.

(c) Internal relocation: a warning against “drive-by” reasoning

The Court’s obiter comments underscore that identifying possible destinations is not an internal relocation analysis. A tribunal must explicitly apply the structured test and reasonableness assessment described in K.D. (Nigeria) v Refugee Appeals Tribunal [2013] 1 IR 448 and subsequent authorities, particularly where the applicant claims nationwide reach of harm.

4) Complex Concepts Simplified

  • Refugee Convention nexus: to qualify for refugee status, feared persecution must be for a Convention reason (e.g., race, religion, nationality, political opinion, or membership of a particular social group). The Tribunal found no nexus; that aspect was not the focus of the High Court’s intervention.
  • Subsidiary protection: protection where the person is not a refugee but faces a real risk of “serious harm” on return and lacks adequate state protection.
  • COI (Country of Origin Information): objective materials (reports from reputable sources) about conditions in the origin state. COI must be applied to the applicant’s specific circumstances, not treated as a generic backdrop.
  • State protection: not whether the state is perfect, but whether it provides reasonably effective, non-temporary protection accessible to the applicant against the feared harm. The key is accessibility and effectiveness for that applicant facing those persecutors.
  • Internal relocation: refusal of protection may be possible if the applicant can safely and reasonably live elsewhere in the home country. Decision-makers must assess both safety (risk) and reasonableness (practicality and conditions).
  • Certiorari and remittal: the High Court quashes the unlawful decision and sends the matter back to be decided again lawfully by a new decision-maker.

5) Conclusion

[2026] IEHC 360 stands as a clear statement that, when assessing state protection under the International Protection Act 2015, IPAT must evaluate protection through the prism of the applicant’s particular circumstances, including the asserted ability of politically powerful or well-connected non-state actors to evade law enforcement in a corruption-affected environment. General statements that a police force broadly functions or investigates “ordinary crimes” will not suffice where the claim is that the applicant’s persecutors are not “ordinary” perpetrators in terms of influence and impunity.

The Tribunal’s decision was quashed and remitted because it did not engage with the applicant’s central case on why protection would fail for him personally. The judgment also reinforces that internal relocation requires a structured, careful analysis and cannot be dealt with by brief, unsupported references to potential destinations.