About this case:

• Citation:
  [2024] IEHC 598
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Ms Justice Marguerite Bolger

Delivering judgment for the High Court, Ms Justice Marguerite Bolger found that the IPAT had relied upon a questionnaire completed by the applicant in prison, the existence of which it did not disclose to the applicant’s solicitor prior to making its decision. The court determined that “it cannot be ruled out that the Tribunal’s decision might have been different had the first questionnaire been disclosed to the applicant’s solicitor and had the Tribunal advised the applicant of its concerns as to the contents of that questionnaire”.

Michael Conlon SC and Noeleen Healy BL appeared for the applicant, and Silvia Martinez BL appeared for the respondent.

Background

The applicant, a citizen of Pakistan, came to Ireland in 2010 on the basis of his 2004 marriage to an EU citizen.

On 5 January 2011, the applicant killed a man and injured his now ex-wife. The applicant’s 2012 murder conviction was overturned on appeal in 2014, with the applicant instead pleading guilty to manslaughter.

Having been sentenced to nine years’ imprisonment, the applicant applied for international protection whilst in prison in May 2017, claiming that if he returned to Pakistan, he faced threats to his life from the family of the man he had killed. The applicant filled out a questionnaire with the assistance of his solicitor in prison, and later filled out a second questionnaire upon his release.

The IPO and IPAT

In 2018, the International Protection Office (IPO) determined that the applicant’s claim was credible but that there was sufficient state protection available to him in Pakistan. 

The applicant sought to appeal this decision, with his current solicitor seeking the applicant’s full file prior to the appeal hearing. The first questionnaire (the May 2017 questionnaire) was not furnished to that solicitor.

On appeal, the International Protection Appeals Tribunal (IPAT) determined that the applicant’s statements at interview, in his first questionnaire and in the account given to the IPAT were inconsistent and that no corroborating evidence of threatening phone-calls allegedly received by the applicant’s family in Pakistan had been adduced on affidavit. As such, the IPAT found no basis for a refugee declaration.

The applicant sought judicial review of this decision, claiming inter alia a breach of the duty of cooperation under Article 4(1) of Council Directive 2004/83/EC (the Qualification Directive) where the IPAT had relied on the absence of affidavits from his family members, and failed to inform the applicant and his advisors that it had two completed questionnaires before it prior to making its decision.

The High Court 

Ms Justice Bolger considered the duty of cooperation between national authorities and applicants for international protection pursuant to the Qualification Directive and the implementing provisions in s.28(2) of the International Protection Act 2015.

The applicant contended that the duty of national authorities to cooperate with international protection applicants in assessing the relevant elements of their applications required the IPAT to raise the absence of any affidavit from family members with him so that he could have an opportunity to comment or deal with this issue.

Ms Justice Bolger examined Irish and EU jurisprudence and the ‘two-stage assessment’ of factual circumstances and the legal appraisal of that evidence under Article 4(1) as outlined by the CJEU in M.M. v. Minister of Justice, Equality and Law Reform, Ireland and AG Case C-277/11 and expanded upon in X v. IPAT Case C-756/21.

On this issue, the High Court concluded that while the absence of evidence corroborating the applicant’s version of events appeared to have been a matter of substance and significance for the IPAT, the duty of cooperation did not extend to something as general as the absence of corroboration.

The court highlighted that the applicant’s situation contrasted with that in cases such as X. v. IPAT where the national authority was clearly better placed than the applicant to gain access to up-to-date country of origin information and a medico-legal report on the applicant, and that the IPAT “did not breach its duty of cooperation in not advising the applicant that, in assessing the credibility of his claim, it might rely on the absence of evidence…” as the duty does not apply to the second stage appraisal of the conclusions to be drawn from the evidence.

Rejecting the applicant’s claim on that ground, Ms Justice Bolger turned to the applicant’s argument that the IPAT referred to his May 2017 questionnaire in its decision in circumstances where the applicant’s legal advisors were never made aware of it.

The IPAT denied that it had relied on the May 2017 questionnaire in deeming that the applicant lacked credibility. The court found “no basis” for the IPAT to claim that it had not relied on the May 2017 questionnaire where it clearly noted in its decision that that questionnaire did not refer to threats having been made against the applicant’s family members.

Ms Justice Bolger considered herself bound by the CJEU decision in X v. IPAT which determined inter alia that the principle of effectiveness under EU law requires an applicant only to demonstrate that it cannot be ruled out that the decision might have been different had it not been for the alleged breach of the duty of cooperation. 

Conclusion

Accordingly, the High Court quashed the decision and remitted the matter to the IPAT for a fresh appeal hearing.

H v. The International Protection Appeals Tribunal & Anor [2024] IEHC 598