The Supreme Court has ruled that the International Protection Appeals Tribunal must reconsider the linked issues of persecution risk and state protection together in a case involving three South African nationals. The Court allowed an appeal by the Tribunal and the Minister for Justice against the Court of Appeal’s order limiting the scope of the reconsideration.
The respondents are B.D., a mother, and her two minor children, T.D. and M.D., who sued through their mother and next friend. The Tribunal had found in 2021 that they had shown a well-founded fear of persecution, but that state protection was available to them. It therefore refused refugee status and subsidiary protection. The parties accepted that the state-protection conclusion was flawed and that certiorari should issue. The dispute was whether only that part should be quashed or the entire decision.
The High Court had ordered certiorari of the whole decision. The Court of Appeal instead severed the state-protection finding, leaving the finding on fear of persecution in place. The State parties argued in the Supreme Court that a partial order would prevent the Tribunal from assessing both elements using current country-of-origin information. The respondents supported the Court of Appeal’s approach, saying the two issues could be considered separately and that partial reconsideration would reduce delay, expense and distress.
In a judgment delivered on 25 July 2025, Ms Justice Iseult O’Malley said the two elements were closely linked where the alleged persecution came from non-state actors. State protection must be assessed against the specific risk, and both elements must be current when the decision is made. The Court concluded that separating them here risked constraining the Tribunal or producing a decision based to an appreciable extent on outdated information.
The Court held that whether severance is appropriate depends on the facts and the flaw identified. It rejected a general default in favour of partial orders and said the decision-maker, rather than a judicial review court, should assess whether country information has changed. It also declined the respondents’ request to refer questions to the Court of Justice of the European Union.
The appeal was allowed. The judgment’s conclusion means the partial approach ordered by the Court of Appeal does not stand; the Supreme Court did not itself determine the protection applications or grant either form of status. The judgment also raised concern that the Minister’s legal representatives appeared to act on instructions from the Minister, while the Tribunal did not participate to any real extent, given the Tribunal’s statutory independence. The Court expressed no definitive view on that issue.