“One Decision, Two Limbs, One Moment” – The Supreme Court Confirms the Holistic-Ex-Nunc Rule for Refugee Status Determinations

Introduction

Decision: B.D., T.D. & M.D. v. International Protection Appeals Tribunal & Minister for Justice, [2025] IESC 38, 25 July 2025.
Court: Supreme Court of Ireland (O’Malley J. delivering; Charleton, Woulfe, Collins & Donnelly JJ. concurring).
Key Issue: Whether a court quashing an International Protection Appeals Tribunal (IPAT) determination may sever and preserve an uncontested finding of “well-founded fear” while remitting only the flawed “State protection” limb, or whether both limbs must be reconsidered afresh.
Parties:

Respondents/Applicants: B.D. (mother) and her two minor children, South-African nationals of mixed Afrikaner–Berber descent.
Appellants: IPAT and the Minister for Justice (joined, and controversially represented, together).

The case travels from a 2021 IPAT refusal of refugee and subsidiary protection status, through conflicting High Court and Court of Appeal rulings, to the Supreme Court. At its core lies the procedural device of partial certiorari (judicial quashing of only part of a decision) and its compatibility with EU and domestic rules requiring an ex nunc (up-to-date) and holistic assessment of refugee status.

Summary of the Judgment

The Supreme Court unanimously allowed the State’s appeal, quashing the entire IPAT decision rather than only the “State protection” section. O’Malley J. held:

The two statutory elements defining a refugee—(i) well-founded fear of persecution and (ii) inability/unwillingness to obtain State protection—are “inextricably intertwined”. They must be assessed together and at the same temporal point.
EU law (Qualification Directive 2004/83/EC, as interpreted in X v. IPAT C-756/21) obliges IPAT to carry out an ex nunc, evidence-based assessment on both limbs. A court order that freezes one limb in time would obstruct that duty.
Domestic severance doctrine—while flexible—cannot be used if it would force the tribunal to decide the remitted issue on a different evidential record or risk fettering its discretion.
No CJEU reference was necessary: the matter concerned national procedural autonomy and the EU rule itself was clear.
An ancillary concern was sounded about the Minister and IPAT sharing representation, potentially undermining IPAT’s statutory independence.

Detailed Analysis

A. Precedents Cited and Their Influence

Irish Severance Cases
- Maher v. AG [1973] IR 140 – constitutional severance only if the remainder reflects legislative intent.
- Bord na Móna v. An Bord Pleanála [1985] IR 205 – planning permission quashed in full where invalid condition was “essential”.
- State (McLoughlin) v. EHB [1986] IR 416 – entire scheme invalidated as excision would distort policy and fiscal intent.
- High Court migration cases (HAA (Nigeria), AA (Pakistan), NNM, etc.) – used partial certiorari but without thorough contest; Supreme Court distinguishes them.
International/Comparative Authorities
- Canada (AG) v Ward [1993] 2 SCR 689 – refugee protection as surrogate for failed national protection; links fear to State failure.
- R v SSH Ex p. Adan [1999] 1 AC 293 & Horvath [2000] UKHL 37 – fear must be current; State-protection limb “bridges” persecution by State and non-State actors.
- X v IPAT (CJEU, 9 Nov 2023) – IPAT must obtain precise, up-to-date COI and decide ex nunc.
- Sheekh v Netherlands & M.S.S. v Belgium & Greece (ECtHR) – risk assessments are forward-looking and evidence-sensitive.

“The inevitable temporal gap before a judicial-review challenge is concluded means that severance of the two elements is likely to be highly undesirable.” – O’Malley J. §95

B. Court’s Legal Reasoning

Interdependency Principle. Because refugee status is “surrogate protection,” the presence or absence of effective national protection is evidence of whether the fear is well-founded. Separate time-stamped findings would therefore distort the analytical framework.
Ex Nunc Obligation. EU law (Art 4(3) Qualification Directive) and X v IPAT require decision-makers (IPAT and, indirectly, reviewing courts) to assess “all relevant facts … at the time of taking a decision.” Preserving a 2021 finding on persecution while re-examining State protection in (say) 2026 would violate that synchronization.
Limits of Judicial Rewrite. Adopting partial certiorari would, in effect, compel IPAT to accept historic persecution findings and blind itself to new evidence—something the tribunal never intended and the court has no authority to impose.
No Reference Needed. The EU rule is acte clair; the dispute concerns national remedial discretion, governed by procedural autonomy.

C. Impact on Future Cases and the Area of Law

Refugee Adjudication: Courts must remit the whole determination when any core limb is impugned. Applicants and practitioners should prepare for a complete rehearing if they succeed on even one ground of review.
Judicial Review Practice: The decision signals restraint regarding severance in complex, fact-sensitive administrative decisions, especially where facts evolve over time.
Institutional Independence: The Court flagged (without deciding) the propriety of IPAT being represented by the Minister’s legal team. Expect revised litigation protocols to safeguard tribunal independence.
Administrative Burden: More full remittals may temporarily increase IPAT caseloads, but provide clarity and consistency.
Comparative Influence: The “holistic-ex-nunc” rule aligns Irish law with UK and Canadian jurisprudence and may be cited in other EU jurisdictions grappling with partial remittal requests.

Complex Concepts Simplified

Ex Nunc: Latin for “from now”; deciding a case with the most current evidence and law, not merely what existed at the time of the original decision.
Certiorari: A High Court order quashing a lower tribunal/administrative decision. “Partial certiorari” means quashing only a discrete part.
Severance: Judicial technique where only the unlawful portion of a decision or statute is struck down, leaving the rest intact.
Surrogate Protection: The idea that international refugee protection substitutes for protection that the applicant’s home State fails to provide.
Country-of-Origin Information (COI): Reports, statistics, and other data describing human-rights conditions in the applicant’s State.

Conclusion

The Supreme Court’s ruling crystallises a new guiding principle for Irish refugee law: the “Holistic-Ex-Nunc Rule.” Where the definition of refugee status is engaged, its twin limbs—well-founded fear and absence of State protection—form a single analytical unit that must be decided together, on the same up-to-date evidential foundation. Attempting to salvage part of a flawed determination risks both legal error and practical distortion, and stands at odds with EU obligations for current, comprehensive fact-finding.

Beyond asylum law, the judgment cautions against over-zealous severance in any dynamic, fact-heavy administrative sphere. It also shines a light on institutional independence, reminding the executive that tribunals cannot be mere extensions of ministerial policy. In sum, B.D. v IPAT recalibrates remedial discretion, ensuring that justice in protection proceedings remains both complete and contemporaneous.