GR & Ors v International Protection Appeals Tribunal & Ors (Approved)

Factual and Procedural Background

This opinion concerns an application for leave to appeal a High Court judgment delivered on 27 October 2023. The original judgment refused in part leave to seek judicial review on certain grounds related to a decision made by the International Protection Appeals Tribunal ("IPAT") on 7 September 2023, which refused the applicants international or subsidiary protection. The applicants sought leave to appeal the refusal of leave to judicially review the IPAT decision. The High Court considered the statutory threshold for granting leave to appeal and reformulated the applicants' questions to better fit the criteria for leave.

Legal Issues Presented

1. Whether the High Court judge was correct in concluding that the applicants' arguments regarding an alleged breach of fair procedures and a right to an effective appeal—specifically, that IPAT made a determination on the issue of nexus without a prior finding by the International Protection Office ("IPO") on nexus—did not raise substantial grounds for judicial review.
2. Whether the High Court judge was correct in proceeding on the basis that the material provided by the applicants to establish nexus through membership of a family group was insufficient to meet the substantial grounds threshold for judicial review.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Court's Reasoning and Analysis

The court analyzed the statutory framework governing leave to appeal and judicial review applications under the Illegal Immigrants (Trafficking) Act 2000 as amended. It emphasized the high threshold for leave to appeal, requiring a point of law of exceptional public importance and public interest in hearing the appeal. The court considered the applicants' challenge to the IPAT decision, focusing on two main issues: procedural fairness regarding the IPO's failure to make a nexus finding before IPAT's determination, and the substantive question of whether family membership constitutes a particular social group for nexus purposes.

The court applied the substantial grounds test from McNamara and related jurisprudence, concluding that the applicants had not met this threshold for grounds 3 and 4 concerning procedural fairness. However, due to the breadth and potential ramifications of the applicants' arguments, the court certified a question for appeal on whether the trial judge correctly applied the substantial grounds threshold in this context.

Regarding the nexus issue, the court noted that the applicants failed to establish substantial grounds based on the material provided. The court highlighted the importance of the applicant’s burden to identify relevant facts and law supporting substantial grounds. It recognized the exceptional public importance of clarifying whether a trial judge must consider only the material presented or has a broader obligation when assessing substantial grounds. This question was also certified for appeal.

Holding and Implications

The court granted leave to appeal on a reformulated basis, certifying two key questions of law related to the substantial grounds threshold in judicial review applications concerning international protection decisions.

Holding: Leave to appeal was GRANTED with certification of specific questions of law.

Implications: The decision allows for appellate consideration of important legal questions regarding procedural fairness in international protection appeals and the application of the substantial grounds test. No new precedent was established by this judgment itself; rather, it facilitates further judicial scrutiny on issues with potential wide-ranging impact on asylum and immigration law procedures.