XS & Anor v International Protection Appeals Tribunal & Anor (Approved)

Factual and Procedural Background

The case concerns judicial review proceedings brought by two applicants, Albanian nationals and partners engaged to be married, who sought international protection on the basis of a blood feud in Albania. They arrived in the State in November 2016 and claimed a well-founded fear of persecution if returned to Albania. The Tribunal affirmed a recommendation denying both refugee and subsidiary protection declarations. The applicants challenged specified paragraphs of the Tribunal's decision dated 30th November 2020, seeking quashing of those paragraphs and a remittal for fresh consideration by a different Tribunal member.

The applicants received the decision on 14th December 2020. The statutory 28-day period to bring judicial review expired on 11th January 2021. The applicants lodged leave papers on 17th February 2021, some five weeks out of time, and applied for an extension of time. The court granted the extension, accepting reasons including Covid-19 restrictions and technical difficulties faced by the applicants and their legal team.

Legal Issues Presented

1. Whether the Tribunal erred in law in its assessment of the adequacy of state protection available in Albania to the applicants, given their claims of persecution arising from a blood feud and gender-based violence.
2. Whether the Tribunal properly applied the legal test for state protection, specifically the requirement that the country provides reasonable protection in practical terms.
3. Whether the Tribunal gave adequate and reasoned consideration to competing Country of Origin Information (COI) reports and explained its preference for certain evidence over others.
4. Whether the Tribunal improperly held against the applicants the fact that they had not reported their difficulties to the Albanian police when assessing state protection.

Arguments of the Parties

Applicants' Arguments

• The Tribunal failed to clearly explain why it preferred some COI evidence over other contradictory evidence within the same report, undermining the applicants' ability to understand the basis of the decision.
• Despite accepting the applicants’ claims and credibility, the Tribunal erred in concluding that adequate state protection was available, creating a "broken trajectory" in reasoning.
• The Tribunal wrongly regarded the applicants’ failure to report their difficulties to the police as a factor against them, despite the COI indicating a common reluctance ("latency") to report such matters in blood feud cases.

Respondents' Arguments

• The Tribunal acted within jurisdiction and provided reasoned, careful decision-making in preferring the Cedoca Report COI evidence over more general COI sources.
• The Tribunal’s conclusion that the Cedoca Report indicated effective state protection "taken in the round" was lawful and supported by evidence.
• The court should not substitute its own view of COI for that of the Tribunal’s decision-maker.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by confirming the proper legal test for state protection, emphasizing that it requires reasonable protection in practical terms, including an effective legal system for detection, prosecution, and punishment of persecution-related crimes. The Tribunal’s approach to the state protection issue was lawful and valid. It correctly identified the relevant legal question and relied on a range of COI sources, including the EASO COI Report (2016), the US Department of State Report (2019), and the Cedoca Report (2017), the latter being preferred due to its specific focus on blood feuds and compliance with best practice standards.

The Tribunal’s conclusion that the Cedoca Report indicated effective state protection "when looked at in the round," despite some misgivings and shortcomings identified within the report, was a factual finding open to it. The court found no error in the Tribunal’s reasoned preference for the Cedoca Report over more general COI sources.

The Tribunal also addressed the applicants’ gender-based risk claim, finding COI material broadly indicative of state protection for women at risk of violence in Albania.

Regarding the applicants’ failure to report their difficulties to the police, the Tribunal merely noted the absence of evidence of reporting and did not treat this as a negative factor against them in assessing state protection.

The court emphasized that the Tribunal’s reasoning was coherent, legally sound, and supported by the evidence. It reiterated the principle that judicial review does not permit the court to substitute its own view of COI for that of the Tribunal.

Holding and Implications

The court REFUSED the reliefs sought, thereby upholding the Tribunal’s decision denying the applicants refugee and subsidiary protection declarations.

The direct effect is that the applicants’ challenge to the Tribunal’s assessment of state protection fails, and the Tribunal’s decision stands. No new precedent was established, and the court reaffirmed established legal principles governing state protection assessment and judicial review standards in international protection cases.