BD & Ors v The International Protection Appeals Tribunal & Ors (Approved)

Factual and Procedural Background

The Applicants, South African nationals comprising a mother and her two minor children, applied for refugee status based on a well-founded fear of persecution due to their mixed race. Their initial application was refused by the International Protection Office (IPO), and upon appeal to the International Protection Appeals Tribunal (the Tribunal), parts of their case were rejected but the Tribunal accepted that the Applicants faced a well-founded fear of persecution if returned to South Africa. The Tribunal relied on then-current country of origin information (COI) indicating high levels of xenophobic attacks but found that State protection was available. The parties agreed the Tribunal's finding on State protection was flawed. The Applicants sought partial certiorari quashing only the State protection finding and a rehearing limited to that issue, while the Respondents contended the entire Tribunal decision should be quashed.

Legal Issues Presented

1. Whether the court has jurisdiction to grant partial certiorari in asylum cases.
2. Whether, in the circumstances of this case, partial certiorari or full quashing of the Tribunal's decision is appropriate.
3. The applicability and scope of the doctrine of severance in judicial review of administrative decisions.
4. The requirement that the Tribunal's decision be made on an ex nunc basis, applying up-to-date country of origin information.
5. The extent to which the Applicants’ distress at giving further evidence impacts the form of the court’s order.

Arguments of the Parties

Applicants' Arguments

• The Applicants sought partial certiorari quashing only the Tribunal’s finding on State protection, maintaining the well-founded fear of persecution finding should stand.
• They argued that a rehearing limited to the State protection issue would avoid unnecessary distress to the first Applicant, who would be required to give oral evidence again.
• The Applicants relied on prior cases where partial certiorari orders had been granted.

Respondents' Arguments

• The Respondents contended the entire Tribunal decision should be quashed rather than partially.
• They argued that the Tribunal’s decision must be made on an ex nunc basis, with up-to-date information, consistent with statutory and European law obligations.
• The Respondents disputed the applicability of partial certiorari in this context, noting prior cases did not involve opposition to partial certiorari as here.
• They suggested the rehearing could be paper-based, denying the Applicants’ entitlement to oral evidence.

Table of Precedents Cited

Court's Reasoning and Analysis

The court acknowledged that it has jurisdiction to grant partial certiorari, including in asylum cases, but emphasized that such orders depend on whether the severed decision remains intelligible, workable, and consistent with the original decision-maker’s intent, referencing the precedent in Bord na Móna v. An Bord Pleanála. The Tribunal’s decision involved two interlinked findings: a well-founded fear of persecution and the availability of State protection. The court found that severing only the State protection finding would be inappropriate because the Tribunal’s reasoning was based on contemporaneous COI applied to both findings. Given the evolving nature of COI and the requirement that decisions be made on an ex nunc basis, partial severance would risk inconsistent application of COI, undermining the decision’s coherence.

The court considered the Applicants’ distress at giving further oral evidence but found no medical evidence to support a different procedural approach. It held that the distress anticipated was insufficient to justify a partial order of certiorari. The court also noted that any delay caused by a full rehearing was not materially greater than a partial rehearing and that delay alone did not merit partial quashing.

In light of recent CJEU jurisprudence, particularly X v. IPAT, the court emphasized that the Tribunal must assess appeals using precise and up-to-date information on the country of origin. The court concluded that the entire Tribunal decision should be quashed and remitted for a fresh hearing applying current COI and an ex nunc approach.

Holding and Implications

The court granted certiorari quashing the entire decision of the International Protection Appeals Tribunal and remitted the matter for a fresh hearing on the Applicants’ appeal.

This decision means that the Tribunal must reconsider both the well-founded fear of persecution and the availability of State protection together, applying up-to-date country of origin information on an ex nunc basis. The ruling clarifies that partial certiorari is not automatic even if severance is theoretically possible; the coherence and practicality of the Tribunal’s decision-making process are paramount. No new precedent was established beyond reaffirming existing principles on severance and the application of up-to-date COI in asylum appeals.