High Court rules that the International Protection Appeals Tribunal was entitled to refuse subsidiary protection to an applicant who faced a real risk of serious harm in his country of origin in circumstances where State protection was available
On 29 September 2023, the High Court upheld the decision of the International Protection Appeals Tribunal (‘IPAT’) to refuse a grant of subsidiary protection to an applicant who demonstrated that he faced a real risk of serious harm in his home country of Albania, in circumstances where IPAT concluded that “adequate State protection would be available to the appellant should he be returned to Albania”.
Phelan J found that IPAT “adopted a logical approach to its consideration of the applicant’s entitlement to protection in a manner which ensured that each intrinsically linked element of the test was properly considered”. In particular, the High Court held that IPAT appropriately considered the “separate issues of fear of persecution and/or real risk of serious harm as well as the question of State protection”, and that the applicant had failed to establish that IPAT had erred in law regarding this approach.
The applicant fled Albania in the late 2010s after his associate was murdered following a business dispute. His application for international protection was denied (both in respect of refugee status and in respect of subsidiary protection) by the International Protection Office (‘IPO’) on the grounds that “the applicant had not established a well-founded fear of persecution” and “that Albania was a safe country of origin”. This decision of the IPO was later upheld by IPAT, at which point the applicant initiated judicial review proceedings seeking to quash the IPAT decision.
The applicant contended that IPAT had erred in law by upholding the decision of the IPO (and refusing him a grant of subsidiary protection) in circumstances where IPAT had found that “substantial grounds have been shown that the appellant faces a real risk of serious harm in his country of origin” but where it had nonetheless determined that State protection was available to the applicant in Albania. In particular, the applicant submitted that section 2 of the International Protection Act 2015 obliged IPAT, on finding that the applicant suffered a real risk of serious harm in Albania, “to then conclude that the applicant was entitled to subsidiary protection as a fear of serious harm is not well-founded where State protection exists”.
Phelan J examined the relevant jurisprudence of Heslin J in the recent High Court decision of T.A. v IPAT & Ors [2023] IEHC 390, and noted that IPAT must consider “as separate elements, both whether the kind of harm apprehended could constitute persecution or serious harm were it to come to pass and also whether… there exists effective State protection”. Phelan J accordingly ruled that “there was no error of law in [IPAT] approaching an analysis of these distinct but intrinsically related elements incrementally”.
The applicant further contended that IPAT had not properly considered whether adequate State protection was available to him in Albania, and had instead placed an overreliance on Ireland’s designation of Albania as a ‘safe country of origin’ by virtue of S.I. 121 of 2018. The High Court rejected this argument, noting that IPAT had dealt with this issue in “considerable detail” – including a consideration of the Applicant’s failure to disagree with the proposition that “the arrest and subsequent successful prosecution and imprisonment of [his associate’s killer] by the Albanian authorities was how one would expect a criminal to be treated in a country with a functioning police service”. In these circumstances, the High Court refused the relief sought by the applicant.
Click here for the judgment in N.G. v The International Protection Appeals Tribunal & Ors [2023] IEHC 535