Facts: The applicant was a member of the Berber Amazigh people, an ethnic minority in Algeria and supported the ideals of the Berber separatist MAK movement. The applicant travelled to the UK on a short-term visa in 2013 and remained in the UK after its expiry. In 2018, he travelled to Ireland and applied for asylum. The IPO recommended that he not be granted refugee status or subsidiary protection and it was also recommended that he not be granted permission to remain. The applicant appealed to the International Protection Appeals Tribunal (IPAT), which rejected the appeal and affirmed the IPO recommendation. The applicant brought judicial review proceedings challenging the decision of the IPAT.
Reasoning: In the High Court, Ferriter J. first examined if the the IPAT’s decision was contrary to section 28(6) of the International Protection Act 2015, which provides that the fact that the applicant was previously subject to persecution or serious harm, or direct threats in that regard, is a serious indication of well-founded fear of persecution or real risk of suffering serious harm, unless there are good reasons to believe they will not be repeated. While the IPAT accepted as credible that the applicant experienced persecution and/or serious harm in Algeria in the past on account of his political activities, Ferriter J. held that the IPAT’s assessment failed to make express reference to s 28(6) and the core elements of the provision. It also did not afford the applicant the benefit of the rebuttable presumption with regard to the possibility of facing future persecution and/or serious harm if he returned to Algeria.
Ferriter J. further held that it would be good practice to ensure all documents assessed are listed in the decision to avoid doubt as to whether all material was considered.
Lastly, with regard to the error of law by failing to apply principles in HJ (Iran) ( UKSC 31), Ferriter J. recognised the limitations in his ability to rule on the issue given that it was not submitted at the IPAT but provided obiter comments. The appellant argued that the IPAT had erred in law and acted unreasonably and irrationally in expecting and/or requiring the applicant to hide his political beliefs and to not take part in the Berber separatist movement for the rest of his life to avoid persecution and serious harm. In HJ (Iran), the UK Supreme Court considered the question of whether a gay applicant could be required to live “discreetly” in his country of origin to avoid persecution. Ferriter J. reflected on the tests used in subsequent cases in the UK and in Ireland. It was noted that it had not been applied in Ireland outside of the context of gay applicants for international protection. With reference to the UK Upper Tribunal ruling in MSM (Journalists; Political Opinion; Risk) ( UKUT 413 (IAC)) and the CJEU ruling in Y and Z (Joined Cases C-71/11 and C-99/11), Ferriter J opined that a close reading of HJ (Iran)
demonstrates that the UK Supreme Court believed the principles could apply to other Convention grounds beyond membership of a particular social group based on sexual orientation, such as the holding of a political opinion. He recognised, nonetheless, the ‘fact-sensitive nature’ of the principles, underscoring the need for a tribunal faced with arguments based on HJ (Iran) to carefully assess the facts of the case.
Decision: The High Court quashed the decision of the IPAT and remitted the matterfor fresh determination by a different tribunal member. Ferriter J. stated that the IPAT should proceed on the basis that HJ (Iran) applies in principle. He stated that if the IPAT finds that the applicant will not be engaging in activism if returned to Algeria, it should assess why that is and whether it relates to a well-founded fear of persecution.