H v International Protection Appeals Tribunal & Ors, A v International Protection Appeals Tribunal & Ors (Approved)

Factual and Procedural Background

These judicial review proceedings concern two separate applications for international protection made by two unrelated nationals of Somalia, hereinafter referred to as the First Applicant and the Second Applicant. Both Applicants had previously been granted protection status in another Member State of the European Union (Greece) before making their applications in the State. The International Protection Appeals Tribunal (the Tribunal) found both applications inadmissible under section 21(2)(a) of the International Protection Act 2015 (as amended) due to their prior protection status in Greece.

The Applicants challenge these inadmissibility findings on grounds that the Tribunal failed to properly assess the risk of inhuman or degrading treatment they might face if returned to Greece. They contend that conditions in Greece, including destitution, homelessness, and extreme material poverty, amount to a real or serious risk of breach of their fundamental rights under the Constitution, the European Convention on Human Rights (ECHR), and the EU Charter of Fundamental Rights (the Charter). In particular, the Second Applicant challenges the constitutionality of section 21(7) of the 2015 Act, which precludes oral hearings at the Tribunal stage.

The Tribunal decisions are challenged on the basis that the Applicants were not afforded adequate procedural safeguards, that the burden of proof was improperly applied, and that the risk assessments were flawed. The cases were heard as telescoped "pathfinder" cases for a wider group of similar cases referred to as the "Greek Transfer Cases". The High Court granted leave to proceed with judicial review and extended time for the First Applicant's application.

Legal Issues Presented

1. Whether the Tribunal correctly applied the legal test set out in the Court of Justice of the European Union (CJEU) decision in Ibrahim et al v. Germany regarding inadmissibility of applications where protection has been granted in another Member State, particularly the assessment of real risk of inhuman or degrading treatment under Article 4 of the Charter.
2. Whether the Applicants were afforded adequate procedural safeguards, including the right to an oral hearing before the Tribunal in light of section 21(7) of the 2015 Act and EU law requirements.
3. Whether the burden of proof was properly placed on the Applicants to demonstrate a real risk of breach of fundamental rights if returned to Greece.
4. The extent to which mutual trust between Member States underpins the Common European Asylum System (CEAS) and the circumstances in which it can be rebutted.
5. Whether the Tribunal was obliged to make further inquiries or seek additional information before reaching its decisions.
6. Whether section 21(7) of the 2015 Act, which excludes oral hearings at the Tribunal stage, is constitutional.
7. The scope of the Tribunal’s jurisdiction to consider constitutional and Convention rights in inadmissibility decisions under section 21.

Arguments of the Parties

Applicants' Arguments

• Conditions in Greece, particularly in refugee camps such as the Moria camp, amount to inhuman and degrading treatment and expose them to extreme material poverty, homelessness, and lack of access to healthcare and basic needs.
• The Tribunal failed to properly scrutinize country of origin information (COI) and did not adequately consider their personal circumstances or vulnerabilities.
• The burden of proof was improperly imposed on them, requiring "sufficiently cogent evidence" of their living conditions and efforts to ameliorate their situations, which they contend is too onerous.
• The absence of an oral hearing at Tribunal stage violates procedural fairness and, in the Second Applicant’s case, section 21(7) is unconstitutional.
• The Tribunal should have made further inquiries or posed additional questions to clarify issues relevant to their claims, especially regarding efforts to obtain accommodation, employment, or social assistance.
• The principle of mutual trust should not preclude the Tribunal from refusing inadmissibility where other Member States have found returns to Greece unlawful due to conditions there.
• Reliance on reports and documents not disclosed prior to the Tribunal decision (e.g., EUAA Report) deprived them of the opportunity to make submissions.
• Constitutional rights under Articles 40.1, 40.3, and 40.5 were not properly vindicated by the Tribunal.

Respondents' Arguments

• The Tribunal correctly identified and applied the legal test from Ibrahim et al and related CJEU case law, requiring a high threshold of severity to rebut the presumption of mutual trust between Member States.
• The burden of proof rests on the Applicants to demonstrate a real risk of inhuman or degrading treatment due to extreme material poverty, based on objective, reliable, specific, and updated evidence.
• The Applicants failed to provide evidence of efforts made to access social assistance, housing, or employment in Greece; absence of such evidence justifies the Tribunal’s conclusions.
• Procedural safeguards were adequate as personal interviews were conducted by the International Protection Office (IPO) before the Tribunal stage, satisfying EU law requirements for a personal interview.
• Section 21(7) expressly excludes oral hearings at Tribunal stage; this statutory provision enjoys a presumption of constitutionality, and no adverse credibility findings or disputed facts necessitating oral hearings arose.
• The Tribunal was not required to make further inquiries where the Applicants had ample opportunity to present relevant information and failed to do so.
• Reliance on publicly accessible COI and reports without prior specific notice does not breach fair procedures, especially where the Applicants themselves relied on similar materials.
• The Tribunal’s remit under section 21 is limited to inadmissibility decisions and does not extend to vindicating constitutional or Convention rights; such rights are addressed at the Ministerial return order stage.
• Decisions of courts in other Member States are not binding; each case must be determined on its own facts and merits.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court undertook a detailed analysis of the legal framework governing inadmissibility decisions under section 21 of the International Protection Act 2015, as amended, in the context of EU law and the CEAS. It emphasized the foundational principle of mutual trust between Member States, which presumes compliance with fundamental rights protections, including the Charter and the ECHR.

The Court confirmed that this presumption may be rebutted only in exceptional circumstances where systemic deficiencies in the asylum procedure or reception conditions in the Member State responsible for protection amount to a real risk of inhuman or degrading treatment under Article 4 of the Charter (mirroring Article 3 of the ECHR). Such deficiencies must reach a particularly high level of severity and be assessed on an individual basis, taking into account the applicant's personal circumstances and vulnerabilities.

The Court found that both the IPO and the Tribunal correctly identified and applied the legal test established by the CJEU in Ibrahim et al and related cases. The burden of proof rests on the Applicant to produce objective, reliable, specific, and updated evidence to establish a real risk of extreme material poverty or inhuman or degrading treatment if returned to the Member State that granted protection.

In both cases, the Applicants failed to provide evidence of efforts to secure accommodation, employment, or social assistance in Greece, despite having been granted protection status and residence permits. The Tribunal's consideration of COI demonstrated that while difficulties exist for beneficiaries in Greece, many do not face homelessness or destitution, and social benefits are available. The Tribunal reasonably concluded that the Applicants did not meet the high threshold required to rebut the presumption of mutual trust.

The Court addressed procedural fairness, noting that personal interviews were conducted by the IPO under sections 13 and 15 of the 2015 Act, fulfilling the EU law requirement for a personal interview. The statutory exclusion of oral hearings at the Tribunal stage under section 21(7) was found not to breach constitutional or EU law rights in these cases, as no adverse credibility findings or disputed facts necessitating oral hearings arose.

The Court acknowledged that while further inquiries or questions by the Tribunal might be good practice in some cases, there was no legal obligation to seek out information not presented by the Applicants, especially where they had ample opportunity to provide evidence. The failure to notify the Applicants of reliance on the EUAA report during the appeal was a technical breach of section 46(8) but did not result in substantive unfairness or prejudice.

The Court found no error in the Tribunal’s assessment of constitutional rights, concluding that the Tribunal’s jurisdiction under section 21 is limited to inadmissibility decisions and does not extend to vindicating constitutional or Convention rights, which are reserved for the Minister’s return order stage under section 50A.

Overall, the Court held that the Tribunal’s decisions were lawful, rational, and procedurally fair, properly grounded in the evidence and applicable legal principles. The Applicants’ challenges were primarily disagreements with the weight and evaluation of evidence, which do not constitute grounds for judicial review.

Holding and Implications

The Court’s final decision is to DISMISS both judicial review proceedings brought by the Applicants challenging the inadmissibility decisions of the International Protection Appeals Tribunal.

The holding confirms that the Tribunal correctly applied the CJEU legal test from Ibrahim et al and related jurisprudence, requiring a high threshold of individual risk to rebut the presumption of mutual trust in the CEAS. The Court found no breach of procedural fairness, no misapplication of the burden of proof, and no error in the Tribunal’s assessment of country information or personal circumstances.

This decision directly affects the parties by upholding the inadmissibility findings and permitting the State to proceed with return orders to the Member State that granted protection (Greece). No new precedent is established beyond affirming the proper application of established EU and domestic law principles in this context. The Court also clarifies the limited jurisdiction of the Tribunal regarding constitutional and Convention rights in inadmissibility decisions, reserving such considerations for the Minister at the return order stage.