Supreme Court allows appeal, quashing entire IPAT decision rather than severing the flawed State protection finding.

AN CHÚIRT UACHTARACH

THE SUPREME COURT

S:AP: IE:2024:000150

[2025] IESC 38

Charleton J. O’Malley J. Woulfe J. Collins J. Donnelly J.

Between/

B.D., T.D. (A MINOR SUING BY HIS MOTHER AND NEXT FRIEND, B.D.) AND M.D. (A MINOR SUING BY HIS MOTHER AND NEXT FRIEND, B.D.)

Respondents

-and-

INTERNATIONAL PROTECTION APPEALS TRIBUNAL

and

THE MINISTER FOR JUSTICE

Appellants

Judgment of Ms Justice Iseult O’Malley delivered the 25th day of July 2025

Introduction

1. The definition of a refugee set out in s.2 of the International Protection Act 2015 refers, in relevant part, to a person who, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, political opinion or membership of a particular social group, is outside their country of nationality and is unable or, owing to such fear, to avail themselves of the protection of that country.

2. In this case, the International Protection Appeals Tribunal found a) that the respondents had shown a well-founded fear of persecution but b) that they were able to avail of State protection. It is accepted by all the parties to the appeal that

conclusion b) was flawed and that the respondents were entitled to an order of certiorari. The dispute, and the only issue in the appeal, is as to whether the order should apply only to that flawed part of the decision, as the respondents contend (with the effect that they would retain the benefit of the finding in respect of fear of persecution), or to the entirety of the decision, as the appellant State parties contend (with the effect that the entire matter would be reconsidered).

3. In the High Court, Bolger J. agreed with the arguments put forward by the appellants (see BD, TD and MD v The International Protection Appeals Tribunal [2023] IEHC 589). She accepted that while it was possible to make a partial, or severed, order for certiorari, in this case certiorari of the entire decision was more appropriate.

4. The Court of Appeal reached the opposite conclusion (Hogan, Whelan and Meenan JJ. – see [2024] IECA 186).

Background facts

5. The respondents are South African nationals. The first named respondent is the mother of the two minor respondents. She is of Boer/Afrikaner descent, while the children’s father (who has also applied for protection) is an Algerian of Berber ethnicity.

6. The respondents applied for protection in this State in October 2016. The initial

decision was made by an International Protection Officer, who considered that they had not established a well-founded fear of persecution or substantial grounds for believing that they faced a real risk of suffering serious harm. They then appealed to the International Protection Appeals Tribunal (“the Tribunal” or “the IPAT”).

7. At a hearing before the Tribunal in September 2019, the first named respondent and her husband recounted various personal experiences of verbal abuse, violence and thefts which they believed to have been racially motivated.

8. The Tribunal, in a decision issued in March 2021, accepted the truth of some (though not all) of what had been asserted. Having considered a range of country-of-origin information (“COI”) it concluded that the first named respondent would not face persecution simply on the basis of being a white woman. The Tribunal did, however, find that the COI established that there was a high level of xenophobic assaults in South Africa and that foreign nationals from other African countries, such as the husband, were likely to be targeted. The children were likely to face persecution due to their mixed ethnicity, and their mother would be subject to the same likelihood due to her connection with them. A similar finding was made in respect of the question of subsidiary protection.

9. The Tribunal concluded, however, that State protection was available to the respondents. Accordingly, the decision was that neither refugee status nor subsidiary protection should be granted.

The High Court

10. The respondents initiated judicial review proceedings in which they sought an order of certiorari in respect only of the IPAT finding on State protection. As noted above, it was agreed by the parties that an order of certiorari should be made, and the dispute was as to its scope.

11. Bolger J. acknowledged that the court had jurisdiction to grant partial certiorari and referred in that regard to Bord na Móna v. An Bord Pleanála [1985] I.R. 205, HAA (Nigeria) v. MJE [2018] IEHC 34, AA (Pakistan) v. IPAT [2018] IEHC 497, NNM v. IPAT [2020] IEHC 590 and PAF (Nigeria) v. IPAT [2019] IEHC 204.

12. In the Bord na Móna case Keane J. upheld a challenge to a condition attached to a planning permission for the erection of a factory. Keane J. held that in the circumstances of the case he could not sever the condition and leave the permission in being.

13. In HAA Humphreys J. found it possible to quash part only of the impugned decision, seeing the jurisdiction to do so as consistent with the “increasing flexibility of response and remedy in the ever-developing field of judicial review” (quoting Simon Brown J. in R. v Inner South London Coroner, ex p. Kendall [1988] 1 W.L.R. 1186). The reason he saw it as appropriate in HAA, a challenge to a refusal to revoke a deportation order, was that the reasoning of the decision-maker on one particular aspect of the applicant’s claim was unclear and it was therefore only that aspect that needed to be reconsidered. It may be noted here that Cooke J. had made a similar order in USI v Minister for Justice, Equality and Law Reform [2011] IEHC 144 where, again, the only flaw found by the Court was a failure to adequately explain the Tribunal’s reasoning on one issue.

14. Similarly, in AA only one aspect of the applicant’s judicial review challenge to a refusal of both asylum and subsidiary protection succeeded in the High Court. Humphreys J. found that the Tribunal member had not applied the correct test in deciding on the issue of internal relocation in the context of subsidiary protection. In those circumstances, only that part of the decision was quashed, leaving the rejection of the asylum application intact, and the matter was remitted. However, a different

conclusion was reached in JM (Malawi) v IPAT [2018] IEHC 663. There, the

decision-maker was held to have erred in refusing to consider a relevant decision made by another Tribunal member and in failing to deal in his analysis with the issue of non-State actors. Humphreys J. saw these errors as having a knock-on effect on “too significant a portion” of the decision to make it meaningful to consider a partial quashing. A partial order was also made by Burns J. in NNM.

15. Bolger J. approved the following description of the jurisdiction in de Blacam (Judicial Review, 3rd ed., Bloomsbury, 2017):

“…severance can take place only where the subject-matter, following severance, is intelligible, workable and consistent with the intention of the original

decision-maker. But if there is doubt about the viability or legality of what remains, the court will refuse to sever.”

16. It was noted that the definition of the term “refugee”, in s.2 of the International Protection Act 2015, in the relevant European Union instruments and in the Convention on the Status of Refugees, required it to be shown that the individual had a well-founded fear of persecution for one of the specified reasons and also that, owing to such fear, the person was unwilling or unable to avail himself or herself of the protection of their country of nationality. Bolger J. saw the link between persecution and State protection in the Convention definition as supporting the proposition that both should be determined at the same time, on the basis of current, up-to-date, COI.

17. The Act of 2015 gives effect to, inter alia, the Qualification Directive (Council Directive 2004/83/EC). Article 4(1) of the Directive provides that it is the duty of a Member State to assess the relevant elements of an application for international protection in cooperation with the applicant. Article 4(3) provides that the assessment of an application for international protection is to be carried out on an individual basis and includes taking into account “all relevant facts as they relate to the country of origin at the time of taking a decision on the application, including laws and regulations of the country of origin and the manner in which they are applied”. This provision is mirrored in s. 28(4) of the Act, which provides that the assessment of an appeal by the Tribunal is to be carried out on an individual basis “…and shall include taking into account the following:

(a) all relevant facts as they relate to the country of origin at the time of taking a decision on the application, including laws and regulations of the country of origin and the manner in which they are applied”.

18. The State parties submitted in the High Court that the Act required decisions on international law to be made on an ex nunc basis that was up to date in law and fact “at the time of taking a decision on the application”, and that EU law was to the same effect. In this regard they cited the then-recent opinion of Advocate General Szpunar in X v. IPAT (Case C-756/21), dealing with the obligation of a determining authority to obtain complete and up-to-date information on the country of origin of an applicant for international protection. Bolger J. adjourned her decision until the judgment of the Court of Justice of the European Union in that case became available.

19. The CJEU held in X v. IPAT that the assessment of facts and circumstances should take place in two stages. The first was the establishment of factual circumstances that might constitute evidence supporting the application, while the second stage related to the legal appraisal of that evidence. While it was the duty of the applicant to submit as soon as possible all elements needed to substantiate the application, the authorities must, if necessary, cooperate with the applicant in order to determine and supplement the relevant elements. In the Court’s view, the duty of cooperation meant that the determining authority could not carry out an appropriate examination of an application without taking into consideration, at the time of taking a decision on the application, first, all the relevant facts concerning the general situation prevailing in the country of origin and, secondly, all relevant elements relating to the individual. This principle applied to the IPAT as well as to the first instance decision-maker:

“Such a review of the merits of the grounds of the IPO’s decision involves obtaining and examining precise and up-to-date information on the situation existing in the applicant’s country of origin on which, inter alia, that decision is based, and the possibility of ordering measures of inquiry in order to be able to rule ex nunc. The IPAT may therefore be required to obtain and examine such precise and up-to-date information…”

20. The respondents argued that while this principle applied to the Tribunal it did not bind the court. Bolger J. observed that, even if this was correct, the court needed to take the obligations of the Tribunal into account in determining what should be remitted for further decision. She was satisfied that this was a case in which the Tribunal ought to make its entire decision on an ex nunc basis applying precise and up-to-date information. It was not necessary, in her view, for the State to demonstrate that the COI would be materially different on remittal, because it was in the nature of the work of the Tribunal that COI was constantly evolving.

21. Bolger J. also rejected an argument to the effect that the prospect of having to be interviewed again in relation to her evidence of acts of persecution would cause undue distress to the first respondent. In the absence of any relevant medical evidence, this was not a basis for making only a partial order.

The Court of Appeal

22. The judgment of the Court of Appeal was delivered by Hogan J. on the 30th July 2024 (see [2024] IECA 186). Hogan J. described the doctrine of severance as a general public law doctrine that sought to conserve judicial and administrative resources by a process of winnowing out, where it was possible, that portion of a judicial or administrative decision which was ultra vires from that which was valid. The principle was expressed at constitutional level in Article 15.4.2°, where it is provided that a law that has been found to be unconstitutional “shall, but only to the extent of such repugnancy, be invalid”. Hogan J. considered that this wording could with advantage be applied to the wider sphere of administrative law. If the validity of an administrative action could be cured by excising that which was ultra vires, that step should generally be taken unless this would have an unacceptably distorting effect on the remainder of the decision, or would otherwise be in some way unfair or inappropriate.

23. As an example of a case where severance would have had a distorting effect, Hogan

J. referred to State (McLoughlin) v. Eastern Health Board [1986] I.R. 416, where this Court decided that it was necessary to invalidate the entirety of a statutory instrument because to excise only the offending part would have greatly altered the nature of the scheme that the instrument regulated. In contrast, the Court found a severance of the range of application of a regulation to be possible in Cassidy v. Minister for Industry and Commerce [1978] I.R. 297.

24. Since it was perfectly possible to verbally separate out the sections of the Tribunal

decision dealing with the fear of persecution from those dealing with effective State protection, Hogan J. considered that there were only two possible objections to severance – that it would have a distorting effect in respect of a unitary decision, or that it would be inconsistent with the ex nunc requirements of EU law.

25. The State parties submitted that a decision on international protection was in essence a unitary decision. It was argued by them that it would be artificial to separate out the question of whether there was a well-founded fear of persecution, on the one hand, from the question of the adequacy of State protection on the other. The period of time that had elapsed since the tribunal decision was also emphasised.

26. Hogan J. rejected this argument. He accepted that in some cases severance by the court would be inappropriate because there might have been an obvious factual change of circumstances since the original decision was made. As an example, he cited the hypothetical situation of a country where a change of regime had resulted in the repeal of laws that had been the source of persecution. He considered, however, that this case was different. The respondents did not rely on any claims about actions or laws of the South African government, but on racial prejudice towards children of mixed ethnicity. That factor, in his view, was unlikely to have changed over a fiveyear period.

27. Next, Hogan J. examined Article 4 of the Qualification Directive and the obligation to assess “all relevant facts as they relate to the country of origin at the time of taking a decision on the application”, in the light of the judgment in X v. IPAT. The State contention on this aspect was that a severance would be inconsistent with the ex nunc obligation imposed on the Tribunal to obtain up-to-date COI. Hogan J. found this to be an “over-interpretation” of the decision in X v IPAT. General statements of principle had been made in that case “but one may presume that the CJEU did not have the particular and special situation of the present case in mind”. In his view the judgment did not mean that the court could not sever the State protection aspect of a

decision where it was otherwise appropriate, just because there would be a temporal gap between the decision on the well-founded fear on the one hand and the decision on State protection on the other. If the judgment did have that meaning, there was, he considered, a risk of arbitrary and inconsistent decision-making.

28. Hogan J. concluded that Article 4 of the Directive required that up-to-date COI and other relevant information must be obtained in respect of each aspect of the case. This had already been done in respect of the fear of persecution aspect and would now have to be done in respect of the State protection aspect. The ex nunc obligation did not preclude severance of the latter from the former.

29. It may be noted that the Court of Appeal agreed with the High Court in relation to the potential distress that might be caused to an applicant who, having obtained an order of certiorari, would be faced with the prospect of having to be interviewed again. Hogan J. commented that the absence of any medical evidence was fatal to the argument.

Submissions

The appellants

30. The appellant State parties accept that severance is an established principle of law and do not contend that it can never be appropriate to sever aspects of a Tribunal

decision. They maintain, however, that it is not legally possible on the facts of this case, on the basis that it would involve a breach of the Tribunal’s obligations under Irish and EU law to make a fully ex nunc decision.

31. The propositions put forward by the appellants are that a) the general principle applicable to questions of severance is that it is only invoked where there is no reason why the remainder of the decision could not stand alone; b) the elements of the definition of a refugee (well-founded fear of persecution and absence of adequate State protection) are inextricably linked and must be assessed together and simultaneously evaluated; c) the Tribunal in this case clearly relied upon the same COI relating to South Africa as of 23rd May 2021 for the purpose of its assessment of both elements of the test and d) Irish and EU law impose a requirement to carry out an assessment of an international protection application on an ex nunc basis, taking account of current, up-to-date COI relating to the facts as they pertain to conditions in an applicant's country of origin.

32. In support of the first proposition the appellants refer to, inter alia, Bord na Móna v An Bord Pleanála, State (McLoughlin) v EHB, Glencar Explorations v. Mayo County Council, Cassidy v. Minister for Industry and Commerce and Mallon v Minister for Agriculture [1996] 1 IR 517. It is submitted that these authorities demonstrate that severance is possible only in respect of an insignificant or peripheral part, rather than an essential feature, of a decision and where no injustice would be done. Severance should not create the risk of an outcome not intended by the decision-maker. It is submitted that the immigration and protection cases referred to above do not assist the respondents, because the appropriateness of severance does not appear to have been disputed in any of them.

33. On the second issue, the appellants say that it is an intrinsic part of the definition of a refugee that there is a current objective risk of persecution. They rely on the discussion in the decision of the Supreme Court of Canada in Canada (Attorney General) v. Ward [1993] 2 S.C.R. 689 of the link between the fear of persecution and the inability or unwillingness of the country of nationality to afford protection. In that case, the Court adopted the view that the underlying rationale for international protection was that it served as surrogate protection, coming into play only upon failure of national support. On this basis, the failure to protect was described as a crucial element in the assessment of the objective reasonableness of the applicant’s fear of persecution, since absence of State protection may be evidence that the fear is well-founded. Similarly, in Horvath v. Secretary of State [2000] UKHL 37 the failure of protection was described by the House of Lords as an essential element, because it created a bridge between persecution by the State and persecution by non-State actors. The appellants submit that the availability of protection must necessarily be assessed by reference to what is being protected against. They say that the effect of the Court of Appeal decision is to artificially segregate the two issues and to permit them to be assessed by reference to different COI.

34. It is noted that the Tribunal decision sets out the detailed range of COI considered by it. The appellants argue that it cannot be assumed that the information would be the same five years later. In any event, they say, the court is not entitled to make assumptions about what the information might now disclose, since that assessment is the role of the IPAT.

35. The obligation imposed by Irish and EU law to carry out a full ex nunc examination is emphasised and it is noted that this is also consistent with the case-law of the European Court of Human Rights (as shown in Sheekh v The Netherlands and MSS v. Belgium and Greece). It is submitted that, in this context, a partial order of certiorari has the effect of preventing the IPAT from fulfilling its obligations.

36. The respondents submit that the Court of Appeal judgment was correct in its identification of the basis for making partial orders in cases of this nature. They say that such orders reduce the time taken and the additional expense and distress associated with the administrative process. It is pointed out, with reference to the High Court judgments mentioned above, that orders of this kind have been made frequently in international protection cases, particularly in cases involving flawed decisions on the possibility of internal relocation. The State parties in those cases did not object or appeal, and they have not explained their change of course.

37. The respondents also agree with the Court of Appeal that the Tribunal decision is verbally severable, and they argue that the appellants have not demonstrated the contrary. It is submitted that the definition of a refugee falls into two distinct limbs capable of being considered separately. They were clearly given separate consideration in the original decision of the Tribunal. It is further submitted that in its decision in Horvath the House of Lords accepted that the fear of persecution and the failure of State protection were discrete, although linked, elements of the definition.

38. The respondents say that no facts or circumstances have been shown to exist that would make severance unfair or inappropriate in this case.

39. The respondents suggest that if the Court considers that a full ex nunc assessment is necessary, it should refer the following question to the CJEU:

"Is Article 4 of the Qualification Directive (Directive 2004/83/EC) to be interpreted as precluding the High Court from quashing part of a decision of the IP AT and remitting that part of the decision to the IP AT to be lawfully determined, where the portion of the decision to be quashed was reached unlawfully but the remainder was lawful?

What factors must a Court consider when considering a partial as opposed to a full remittal?

Ought an applicant's distress at the prospect of a further oral hearing be considered by a Court in determining whether full or partial remittal should be ordered?”

Representation of the State parties

40. This matter needs to be mentioned, with no definitive view being expressed in this judgment, because it may require serious consideration by the Tribunal and by the Minister.

41. Nominally, the IPAT and the Minister were separate parties represented by the same legal representatives in these proceedings. It became clear in the hearing of the appeal, however, that the Tribunal did not in fact participate to any real extent and the instructions to solicitor and counsel emanated from the Minister. Thus, it was the Minister who instructed the Chief State Solicitor to offer to consent to certiorari of the IPAT’s determination.

42. This is an issue of some concern to the Court. Under s.61(3)(b) of the 2015 Act, the IPAT is to be independent in the performance of its functions. Furthermore, it is mentioned in the X v IPAT judgment of the CJEU as being the “court or tribunal” that is “tasked with performing the judicial scrutiny function” provided for in Article 39 of Directive 2005/85/EEC (now Article 46 of Directive 2013/32/EU): Case C-756/21 X v IPAT, §63. That necessarily imports a requirement for independence.

43. In such circumstances, joint representation with the Minister in proceedings where a

decision of the IPAT is challenged may present a difficulty, particularly if in fact the IPAT does not play an effective role and, therefore, does not exercise its capacity for independent decision-making.

Discussion

44. In a case where a State, through either its laws or its agents, is seen to directly persecute individuals who belong to one of the categories protected by the laws of asylum, the question whether such an individual can rely upon the protection of that State will be easily answered. The analysis becomes more complicated, however, where the risk of persecution is said to emanate from non-State actors. The objective reasonableness of the fear of persecution must be considered by reference to factual information. Where it is established that such a fear is reasonable, the question then becomes the adequacy of any available State protection against the risk of persecution. It is, I think, clear that these two issues are closely intertwined – the available State protection, if any, must relate to the specific risk of persecution by non-State actors. The issue for the Court to determine is whether, notwithstanding that close link, the two aspects can properly be considered separately, at different times and, possibly, by different decision-makers.

45. The parties have presented varying sources of authority on the issue, ranging from established decisions on constitutional challenges to legislation, national administrative law, the decisions of the courts of the United Kingdom and Canada, the European Court of Human Rights and the specifically EU law and implementing regulations. I will commence here with the Irish authorities, starting with Maher v Attorney General [1973] I.R. 140.

46. In Maher, the issue concerned a provision in the Road Traffic Acts 1961 – 1968 that gave “conclusive” status to a certificate stating the alcohol concentration found in a blood or urine specimen. Having held that the provision infringed constitutional principles relating to the judicial power, the Court went on to consider whether the word “conclusive” could be severed from the section. It said:

“The application of the doctrine of severability or separability in the judicial review of legislation has the effect that if a particular provision is held to be unconstitutional, and that provision is independent of and severable from the rest, only the offending provision will be declared invalid. The question is one of interpretation of the legislative intent. Article 15, s 4, sub-s 2 of the Constitution lays down that every law enacted by the Oireachtas which is in any respect repugnant to the Constitution or to any provision thereof shall, but to the extent only of such repugnancy, be invalid; therefore there is a presumption that a statute or statutory provision is not intended to be constitutionally operative only as an entirety. This presumption, however, may be rebutted if it can be shown that, after a part has been held unconstitutional, the remainder may be held to stand independently and legally operable as representing the will of the legislature. But if what remains is so inextricably bound up with the part held invalid that the remainder cannot survive independently, or if the remainder would not represent the legislative intent, the remaining part will not be severed and given constitutional validity. It is essentially a matter of interpreting the intention of the legislature in the light of the relevant constitutional provisions, and it must be borne in mind in all cases that Article 15, s 2, sub-s 1, of the Constitution provides that “the sole and exclusive power of making laws for the State is hereby vested in the Oireachtas: no other legislative authority has power to make laws for the State.” If, therefore, the Court were to sever part of a statutory provision as unconstitutional and seek to give validity to what is left so as to produce an effect at variance with legislative policy, the Court would be invading a domain exclusive to the legislature and thus exceeding the Court's competency.” (Emphasis added.)

47. The Court concluded that if it were to sever the word “conclusive”, it would be amending the Act and thus engaging in a legislative rather than judicial role.

48. In Cassidy v Minister for Industry and Commerce, the Minister had made price control orders purporting to regulate maximum prices in both public bars and lounge bars without distinguishing between them. This Court found the orders to be valid in respect of public bars. It held, however, that they were unreasonable in relation to lounge bars, because of a failure to take account of the differing levels of outlay and the services provided.

49. Of note, it was stated that if the orders had been composed in such a way that the provisions applicable to public bars could have been severed from the rest, such provisions could have been severed and declared valid as being intra vires. They did not, however, lend themselves to verbal severance because they simply fixed maximum prices without reference to whether they were charged in lounge bars or public bars. Instead, the Court held it to be possible to sever the range of application of the orders. They could be preserved and implemented in so far as they were intra vires, and ruled inoperable only in so far as their application would run into the area of ultra vires. Accordingly, the orders were not held to be invalid, but they were to be construed as not applying to lounge bars.

50. In the Bord na Móna case a condition attached to a planning permission for a factory was found to be invalid. The condition was that the applicant should pay a contribution towards the cost of reconstructing certain roads because of the anticipated additional traffic associated with the factory. Keane J. accepted the plaintiff’s argument that the condition was ultra vires (because of the terms by which it was imposed) but did not accept the further argument that it was severable from the permission. He held that severance might be possible, and desirable, in some cases but in the circumstances of the case he could not sever the condition and leave the permission in being.

“On principle, it seems wrong that a planning permission should be treated as of no effect simply because a condition attached to it, which has nothing to do with planning considerations, is found to be ultra vires. Again, if a condition of a peripheral or insignificant nature attached to a permission is found to be ultra vires, it seems wrong that the entire permission should have to fall as a consequence. But where the condition relates to planning considerations and is an essential feature of the permission granted, it would seem equally wrong that the permission should be treated as still effective, although shorn of an essential planning condition. This view is supported by English authority: see the speeches of Lord Reid, Lord Morris of Borth-y-Gest and Lord Upjohn in Kingsway Investments (Kent) Limited v Kent County Council [1971] AC 72.

The question remains, accordingly, as to whether the invalid condition in the present case can be regarded as an inessential condition or one which is not related to planning considerations or is peripheral or insignificant in its nature. I think that the answer to this question is quite clear…It unquestionably relates to planning and could not, on any view, be described as trivial or insignificant. On the contrary, to treat the permission as authorising the plaintiff to carry out a major development without making any contribution whatever to the improvement of the road network which would be necessitated by their development would be to treat them as having been granted a permission which it was never the intention of the legislature that they should have. It seems to me that, in these circumstances, it is not possible to sever the offending condition from the permission and, accordingly, the decision to grant permission must be treated as a nullity in its entirety.” (Emphasis added.)

51. A similar conclusion was reached by this Court in respect of an invalid condition in another planning case, State (FPH Properties SA) v. An Bord Pleanála [1985] I.R.

698. Giving the sole judgment, McCarthy J. said:

“Unless it can be demonstrated that the respondents would have granted the relevant permissions subject only to the other conditions, if it had been advised that the impugned condition was invalid, in my view the impugned condition is not severable from the remainder of the permissions.”

52. State (McLoughlin) v Eastern Health Board [1986] I.R. 416 concerned regulations made by the Minister for Social Welfare, under the terms of the Social Welfare (Consolidation) Act 1981, to provide for the payment by health boards of a winter fuel allowance. Fifteen categories of social welfare recipients were made eligible for the allowance – those in receipt of unemployment assistance were not among them, although that payment was in fact lower than that in some of the eligible categories. This Court held that, as a matter of statutory interpretation, any person whose means did not meet their needs was entitled under the Act to apply for the allowance. The Minister did not have the power to alter, amend or cut down that statutory right.

53. The next issue was whether the Court should simply excise the sub-article that limited eligibility to the listed recipients. In holding that it should not, Finlay C.J. (with whom the other members of the Court agreed, albeit McCarthy J. took a more absolutist view as to whether it was even possible in principle to cure a defective statutory instrument) noted that the Act required the Minister for Social Welfare to obtain the consent of the Minister for Finance to any regulations made, the purpose being to ensure that the latter would have ultimate control over any burden imposed on the Exchequer. He observed that to excise the impugned provision would have the effect of very substantially increasing the number of persons entitled to claim the allowance. That would be to impose upon the State a scheme that had never been intended in the making of the regulations and, in practical terms, to impose a burden on the Exchequer with which the Minister for Finance had never concurred. It would amount to an amendment of the entire scheme, and the Court would be acting in a legislative rather than judicial role. It was, therefore, necessary to condemn the entirety of the instrument.

54. Glencar Explorations plc v. Mayo County Council (No.2) [1993] 2 I.R. 237 related to the validity of what was referred to as the “mining ban” adopted by the County Council in its 1992 development plan. The High Court (Blayney J.) determined that the ban was, for various reasons, ultra vires the statutory powers of the Council. There was then a dispute as to the form of the order that should follow. The Court held that it was appropriate to sever the ban from the development plan.

“In the special circumstances which obtain in the case, I consider that no injustice will be done by simply removing the ban. The development plan in its original draft as approved by the County Council did not contain it. So the removal of the ban will mean no more than that the mining section will revert to its original form. And in that form it contains very extensive provisions to protect the environment against being injured by mining developments. Apart from this, the County Council, under s 20, sub-s 1 of the Act of 1963 has power to review its development plan from time to time, and so it will be able immediately to review the section on mining if it should so wish. And finally, there is a statutory precedent for interfering with a part only of a development plan since under s 22, sub-s 3 of the Act of 1963 the Minister for the Environment ‘may require a planning authority to vary the development plan in respect of matters and in a manner specified by him …’ ”

55. For present purposes, the relevant issues in Mallon v. Minister for Agriculture [1996]

1 I.R. 517 arose from the prosecution in the District Court of the appellant for offences under regulations made in 1988 and 1990. The 1988 regulations had prescribed a penalty of up to 12 months imprisonment and/or a fine in respect of a number of offences concerning the administration to farm animals of illegal growth promoters. In the 1990 instrument, new offences of the same nature were created, carrying the possibility of a fine and a sentence of up to two years. The 1990 regulations also purported to increase the sentence in respect of the offences under the 1988 regulations to two years imprisonment. The offences were triable summarily only. The appellant sought to prohibit his trial on the ground inter alia that the provision for a two-year sentence had the effect that the offences were not “minor” within the meaning of Article 38 of the Constitution and that the provisions therefore exceeded the constitutional limitations on the jurisdiction of the District Court.

56. In the High Court, Costello J. agreed that an offence carrying a two-year penalty could not be regarded as “minor”, but he refused to prohibit the trial. He determined, firstly, that the amendment of the 1988 provision purportedly made by the 1990 instrument was invalid and accordingly had never taken effect. Secondly, he held that it was possible to sever from the 1990 regulations the words “or imprisonment for a term not exceeding two years or both”, thus preserving the jurisdiction of the District Court but reducing the applicable penalty for offences under those regulations to a fine only.

57. On appeal, Hamilton C.J. took the view that the High Court had been correct to treat the 1988 regulations as if they had not been amended. In relation to the issue of the severability of the 1990 regulations, he cited the judgment of the Court in Maher v. The Attorney General [1973] I.R. 140, as discussed by Finlay C.J. in Desmond v. Glackin (No.2) [1993] 3 I.R. 67.

58. Hamilton C.J. considered that the Minister had not intended, when making the 1990 regulations, that the penalty should be a fine only. In those circumstances, it was not in accord with the legislative intent to delete the words providing for a term of imprisonment and leave the remainder of the provision. Severance was therefore not possible, and the appellant was entitled to a declaration of invalidity and an order of prohibition in respect of the charges under the 1990 regulations.

59. O’Flaherty and Barron JJ. agreed with the Chief Justice on this issue. Blayney and Denham JJ. dissented – both took the view that to sever the reference to imprisonment, leaving the rest of the provision intact, would still give some effect to the Minister’s intention to create offences and provide for a penalty.

United Kingdom authorities

60. It is appropriate to start here with the decision of the House of Lords in R. v. Secretary of State for the Home Department, ex parte Adan [1999] 1 AC 293. An applicant for refugee status, a Somali national, had fled his country owing to a well-founded fear of persecution. Subsequently, the head of State of Somalia was overthrown but the country remained subject to internal violence between warring clans. The United Kingdom Secretary of State took the view that the applicant was not entitled to status because he no longer had a well-founded fear. The applicant’s case, in very brief summary, was that he had had such a fear when he fled, and he was thereafter unable to avail himself of State protection.

61. The House of Lords unanimously held that the fear must be current, and that historic fear would not suffice. In the majority judgment, Lord Lloyd put the point this way:

“…Mr. Adan must show that he is (not was) unable to avail himself of the protection of his country. If one asks "protection against what?" the answer must surely be, or at least include, protection against persecution. Since "is unable" can only refer to current inability, one would expect that the persecution against which he needs protection is also current (or future) persecution. If he has no current fear of persecution it is not easy to see why he should need current protection against persecution, or why, indeed, protection is relevant at all.”

62. It was accepted that past persecution might in some cases be significant evidence justifying a fear of future persecution, but that was a different question.

63. In Horvath v. Secretary of State for Home Affairs this analysis was expanded upon by reference to the underlying rationale for affording protection in cases involving State failure. The precise issues with which the House of Lords was concerned in that case, concerning the appropriate analysis of State protection issues (and the variations in approach of the members of the House), are not of direct significance in the instant appeal. It is agreed here that the decision of the IPAT on that issue was flawed and the Court is concerned only with the question of severability. Nonetheless, there are passages in the majority opinion delivered by Lord Hope that throw helpful light on the nature of the decision that must be made by the Tribunal.

64. Lord Hope analysed the purpose of the inclusion in the Convention definition of a refugee of State failure to protect against persecution as follows:

“It seems to me that the Convention purpose which is of paramount importance for a solution of the problems raised by the present case is that which is to be found in the principle of surrogacy. The general purpose of the Convention is to enable the person who no longer has the benefit of protection against persecution for a Convention reason in his own country to turn for protection to the international community..”

65. Here, Lord Hope cited this passage from the judgment of La Forest J. in Canada (Attorney-General) v. Ward (1993) 103 D.L.R. (4th) 1:

“At the outset, it is useful to explore the rationale underlying the international refugee protection regime, for this permeates the interpretation of the various terms requiring examination. International refugee law was formulated to serve as a back-up to the protection one expects from the state of which an individual is a national. It was meant to come into play only in situations when that protection is unavailable, and then only in certain situations. The international community intended that persecuted individuals be required to approach their home state for protection before the responsibility of other states becomes engaged. For this reason, James Hathaway refers to the refugee scheme as "surrogate or substitute protection", activated only upon failure of national protection; see The Law of Refugee Status (1991), at p. 135.”

66. Lord Hope continued:

“This purpose has a direct bearing on the meaning that is to be given to the word "persecution" for the purposes of the Convention. As Professor James C. Hathaway, The Law of Refugee Status (Butterworths, 1991) p. 112 has explained, "persecution is most appropriately defined as the sustained or systemic failure of state protection in relation to one of the core entitlements which has been recognised by the international community." At p. 135 he refers to the protection which the Convention provides as "surrogate or substitute protection", which is activated only upon the failure of protection by the home state. On this view the failure of state protection is central to the whole system. It also has a direct bearing on the test that is to be applied in order to answer the question whether the protection against persecution which is available in the country of his nationality is sufficiently lacking to enable the person to obtain protection internationally as a refugee. If the principle of surrogacy is applied, the criterion must be whether the alleged lack of protection is such as to indicate that the home state is unable or unwilling to discharge its duty to establish and operate a system for the protection against persecution of its own nationals.”

67. He concluded:

“Where the allegation is of persecution by non-state agents, the sufficiency of state protection is relevant to a consideration whether each of the two tests - the "fear" test and the "protection" test - is satisfied. The proper starting point, once the tribunal is satisfied that the applicant has a genuine and well-founded fear of serious violence or ill-treatment for a Convention reason, is to consider whether what he fears is "persecution" within the meaning of the Convention. At that stage the question whether the state is able and willing to afford protection is put directly in issue by a holistic approach to the definition which is based on the principle of surrogacy.”

68. In that context, Lord Hope endorsed the approach in Adan as “both helpful and instructive”. There were indeed two tests that required to be satisfied – the “fear test” and the “protection test”. The two tests were nevertheless linked to each other by the concepts which were to be found by looking to the purposes of the Convention. The surrogacy principle which underlying the issue of state protection was at the root of the whole matter.

“I would hold therefore that, in the context of an allegation of persecution by non-state agents, the word "persecution" implies a failure by the state to make protection available against the ill-treatment or violence which the person suffers at the hands of his persecutors. In a case where the allegation is of persecution by the state or its own agents the problem does not, of course, arise. There is a clear case for surrogate protection by the international community. But in the case of an allegation of persecution by non-state agents the failure of the state to provide the protection is nevertheless an essential element. It provides the bridge between persecution by the state and persecution by nonstate agents which is necessary in the interests of the consistency of the whole scheme.”

X v. IPAT (C-756-21X)

69. The applicant was a Pakistani national who lodged an asylum application in Ireland in 2015, and subsequently added an application for subsidiary protection. Because of the pending implementation of the new procedures provided for under the Act of 2015, his applications and appeals were not finally determined by the IPAT until 2019. In judicial review proceedings intended to quash the decisions (which were adverse to him) he claimed inter alia that the COI relied upon by the IPAT was incomplete and out of date.

70. The High Court considered that the IPAT had breached its duty to cooperate in the process by obtaining adequate information. It asked the CJEU a number of questions, by way of preliminary reference, relating to the duty of the determining authority to cooperate with the applicant in the process.

71. The Advocate General stated in his Opinion that if the elements provided by an applicant were not complete, up to date or relevant then the duty to cooperate required the determining authority to obtain complete and up-to-date information on the country of origin.

72. The CJEU took a similar view. It noted that its case law established that the assessment by a decision-maker should take place in two separate stages. The first was the establishment of the factual circumstances that could constitute evidence supporting the application, while the second related to the legal appraisal of that evidence. It was the duty of an applicant to submit all elements needed to substantiate their application but the authorities must, if necessary, cooperate actively in order to determine and supplement the relevant elements.

73. In the Court’s view, it follows that the duty entails that the determining authority such as an IPO cannot carry out an appropriate examination of an application without taking into consideration “at the time of taking a decision”, all the relevant facts concerning the general situation prevailing in the country of origin.

74. The Court further held that the duty in question required the IPAT, when reviewing the merits of an application, to obtain and examine precise and up-to-date information, and the possibility of ordering measures of inquiry “in order to be able to rule ex nunc”.

The European Court of Human Rights

75. The European Convention on Human Rights and Protocols do not refer expressly to the right to asylum. However, Article 3 of the Convention (the prohibition on torture or inhuman or degrading treatment) is relevant to decisions to expel foreign nationals. In that context, the ECtHR has held that an expelling State must assess conditions in the country to which it is proposed to return an unsuccessful asylum seeker, in order to determine whether there is a real risk of treatment prohibited by Article 3. In Sheekh v The Netherlands, the Court said that this required “a full and ex nunc assessment”, as the country of destination could change in the course of time. The historical position was of interest in so far as it might shed light on the current situation and its likely evolution, but it was present circumstances that were decisive. The Court added that if the danger to an applicant emanated from non-State actors, Article 3 could apply if it was shown that the risk was real, and that the State authorities were not able to obviate that risk.

Conclusions

76. The situation giving rise to the issue before the Court is in one sense not an unusual one. The decision on refugee status is a very important one but at bottom it is an administrative decision. Judicial review of administrative decisions is commonly available in most spheres of executive action in this State. In this case the Court of Appeal has, in the interests of conserving administrative and judicial resources, sought to lay down a general principle to the effect that if the validity of an administrative action can be cured by excising that which was ultra vires, that step should generally be taken unless this would have an unacceptably distorting effect on the remainder of the decision, or would otherwise be in some way unfair or inappropriate. In adopting this view, the Court drew an analogy with the approach taken by the courts when reviewing legislation on constitutional grounds.

77. Unfortunately, I find that I cannot agree that this should be, in effect, the default approach in judicial review proceedings.

78. Firstly, I do not find the analogy with judicial review of legislation to be of great assistance. (In that context, it is necessary to distinguish to some extent between primary legislation and delegated legislation – the former is the subject of express constitutional provision, the latter is not. The authorities demonstrate, however, a degree of similarity in approach so far as the issue of severance is concerned.) As the Court of Appeal said, Article 15 provides that where a statutory provision is repugnant to the Constitution it is to be invalidated only to the extent of such repugnancy. While that principle is clear it can, in practice, require quite complex consideration. The invalidity may arise from a single word (as in Maher, with the word “conclusive”), or a single section. It can in some cases result from the interrelationship between different provisions. In other cases a statute has been found to have become unconstitutional because, although unobjectionable at the outset it has not been adapted to changing conditions. In any such case the court will commence with the presumption of constitutionality but even where it finds repugnancy it will be anxious to respect the fundamental constitutional principles of the separation of powers. Severance may be resorted to where it is possible, with the objective of saving so much of the enactment as is lawful. If, however, the deletion of the single word, or section, results in a measure that does not reflect the will of the legislature the judicial power might be accused of trespassing on the legislative power. There is, of course, no question of remittal in a case concerning legislation.

79. These considerations do not arise in respect of administrative decisions, and nor does any presumption that a decision “is not intended to be operative only as an entirety” (see the passage cited above from Maher). The issue now concerning the Court will arise where one or more elements of a decision are found to have been improperly dealt with, while others are valid. If a court decided to simply excise the invalid part(s) the effect might in some cases be a complete rewriting of the decision, presenting an analysis that the original decision-maker would not have adopted.

80. In many, if not most, cases the finding of invalidity in respect of some part of a

decision will mean that the decision is incomplete. It cannot take effect and will have to be remitted for reconsideration to at least some extent by the appropriate person or body.

81. The difficulty in this context arises because of the widely varying nature of administrative decisions and the range of factors and issues to be determined, leading to the possibility that any default approach may in fact increase the risk of error. Administrative decisions may be open to challenge on a very wide range of grounds that do not arise in constitutional challenges to legislation, including bias, ultra vires, irrationality, failure to take relevant matters into account, giving weight to irrelevant considerations or simple failure to give an adequate explanation.

82. I referred earlier to the analysis in de Blacam, cited in the High Court judgment to the effect that severance can take place if the subject-matter, following severance, is “intelligible, workable and consistent with the intention of the original decisionmaker” but that if there is doubt about the viability or legality of what remains the court will refuse to sever. I have some doubt about the general applicability of such a principle. The intent of the decision-maker will be found in the outcome of the

decision, but that decision has been quashed to at least some extent and the intent might itself have been the cause of the legal invalidity (as in a case of bias). In any event, the question of remittal will only arise because what remains of the decision is not “viable” as a complete decision.

83. A general principle that there should be severance or partial remittal in respect of different parts of a decision in such circumstances might also frequently be impossible to apply in practice. I do not find the concept of “verbal severability” particularly helpful here – just because one element of a decision may be verbally severable does not mean that it is not intrinsically related to other elements.

84. The pragmatic considerations identified by Hogan J. certainly have their place. At the level of principle, however, the appropriateness of severance and partial remittal of an administrative decision must depend, in the first instance, on whether the invalid part can be properly re-analysed without also taking into account the elements involved in the part found to be valid. Some cases may involve decisions based on a number of findings relating to separate, stand-alone matters but in others the issues will be more inter-dependent. There should be no risk that the decision-maker will be unduly fettered in reconsidering the remitted element without reference to the other elements of the decision or constrained to reach a decision on the remitted element different to that it would (or might) have come to if given the opportunity to reconsider the decision in the round. These considerations are particularly important where, as here, the factual elements that must be assessed are subject to change over time.

85. The decision in question here involved the assessment of two central factors. Firstly, it was necessary to determine whether or not there was a well-founded fear of persecution. The IPAT accepted that there was. The second question was whether or not the respondents were unable or, owing to such fear, unwilling to avail themselves of the protection of their national country.

86. I have come to the view that the State parties are correct in saying that the relationship between the two elements to be assessed is too close to separate them in the fashion proposed by the Court of Appeal. Further, I do not see the decisions of the High Court in the asylum context cited above as supporting such a separation, although in the absence of debate between the parties there does not appear to have been any in-depth examination of the issue in that Court.

87. I find the analysis of the relationship between the two elements by the Supreme Court of Canada in Ward and by the House of Lords in Adan and Horvath to be convincing

– since international protection is provided by way of surrogate for national protection, it follows that the question of fear of persecution is inextricably entwined with the question of State protection and that the two elements must be assessed by reference to each other.

88. I also agree with the views expressed in Adan and Horvath to the effect that both of the central elements must be current at the time when the decision is being made. It is essential to bear in mind here that the decision-maker is not concerned solely with past events but with present conditions, and with an attempt to assess whether those conditions provide a basis for a finding of a well-founded fear and absence of protection.

89. As the CJEU has held, the obligation is to carry out this assessment on the basis of information that is up to date when the decision is made. That Court did see the

decision as having two stages, but those stages were the establishment of the factual elements and the legal appraisal of them. I do not consider that the CJEU’s analysis can encompass the temporal separation of the assessment of the two core elements of refugee status.

90. As noted above, the respondents propose that the Court should refer questions to the CJEU, pursuant to Article 267 of the TFEU, asking i) whether Article 4 of the Qualification Directive (Directive 2004/83/EC) should be interpreted as precluding the High Court from quashing part of a decision of the IPAT and remitting that part of the decision to the IPAT to be lawfully determined, where the portion of the

decision to be quashed was reached unlawfully but the remainder was lawful; ii) what factors should be taken into account by a court when considering a partial as opposed to a full remittal; and iii) whether an applicant’s distress at the prospect of a further oral hearing should be taken into account in making that decision.

91. I am of the view that it is not necessary for the Court to make such a reference. The respondents have not, in my opinion, raised any issue concerning the interpretation of the Directive. The answer to the first two questions proposed must be that it depends on the facts of the case and the nature of the flaw identified by the court, but that the obligation to reach an ex nunc assessment on the basis of up-to-date information precludes a final decision that is based to any appreciable extent on outof-date information. Severance of the issues should not be contemplated where this might be the result.

92. It is also the case that the issue here concerns national judicial review procedures. As has been held repeatedly by the CJEU (including in X v IPAT), such matters come under the principles of procedural autonomy. They are, therefore, to be governed by the national legal order unless an issue arises with respect to the principles of effectiveness and equivalence. No such issue arises here.

93. The final question proposed by the respondents relates to the issue of potential mental distress, and whether it should be taken into account. This matter was not really pressed in submissions. In any event, I agree with the conclusions of the High Court and Court of Appeal on this issue. The absence of any relevant evidence makes it an entirely unsuitable matter for a reference.

94. Accordingly, and having had regard to the principles identified in Consorzio Italian Management v Rete Ferroviaria Case-561/19, I do not consider a reference to be necessary or appropriate.

95. In conclusion, I consider that the inevitable temporal gap involved before a judicial review challenge to an asylum decision is finally determined means that severance of the two elements is likely to be highly undesirable. In this case, severance was only possible because the Court of Appeal made a finding that the COI relating to persecution was unlikely to have changed. This is an assessment that is properly the role of the decision-maker and not that of a judicial review court. There may be cases where a particular conclusion is so overwhelmingly likely that the court could discount the possibility of change, but I would not see it as appropriate in the circumstances of this case.

96. In the circumstances I would allow the appeal.