The High Court has quashed a Refugee Appeals Tribunal decision after finding it did not determine a Georgian applicant’s claim that the 2008 war created a new need for protection because South Ossetians could not return home.
In a judgment delivered on 11 June 2013, Mr Justice Colm Mac Eochaidh granted leave to seek judicial review and an order of certiorari. He remitted the case to the Tribunal to rehear the “sur place” claim only. The Tribunal’s decision on the applicant’s original asylum claim was not reopened by the order.
The applicant, identified in the judgment as I. D., is described as a Georgian national from South Ossetia of joint Georgian and Ossetian ethnicity. He arrived in Ireland in August 2005 and sought asylum, citing alleged persecution connected with his ethnicity, Labour Party membership and fear of conscription into the Georgian Army. His claim was rejected by the Refugee Applications Commissioner and then by the Tribunal in October 2006. Earlier judicial review proceedings were compromised, and the matter was sent back to the Tribunal for reconsideration.
At an oral hearing on 19 November 2008, after war had broken out between Russia and Georgia, the applicant’s representatives made a further written and oral submission. They argued that displacement and inability to return home meant he had become a refugee “sur place”—a person whose protection claim arose from events after leaving his country. They relied on Regulation 6(1) of the 2006 protection regulations and argued that the inability of displaced South Ossetians to return breached human rights and amounted to persecution.
The High Court found that the Tribunal’s decision did not address that claim. Its account of the applicant’s original reasons for leaving Georgia omitted the “sur place” element. The Tribunal recorded some submissions that appeared to refer to it, but did not refer to Regulation 6(1), which the judge described as the key provision for such claims.
The Tribunal had discussed the war in considering an allegation about conscription, but the judge said that was not the claim advanced. The “sur place” submission concerned displacement and inability to return home. The judge concluded that the claim remained unanswered and that this failure deprived the Tribunal decision of legality.
The respondents argued that the applicant’s circumstances had not changed since he left South Ossetia in 2004 and that the 2008 war had no effect on him. The court’s order requires the Tribunal to reconsider only the “sur place” claim; it does not decide whether that claim succeeds.