The Court of Appeal has allowed a family’s appeal over how their international protection case should be reconsidered, preserving a finding that they faced a well-founded fear of persecution in South Africa while sending the state-protection issue back for a fresh assessment.
The applicants are anonymised in the judgment as B.D., T.D. and M.D. The mother and her two children, who are South African nationals, had sought refugee status because they feared the children would face persecution because of their mixed-race ethnicity. The children’s father is Algerian.
In March 2021, the International Protection Appeals Tribunal (IPAT) accepted that the children faced a well-founded fear of persecution if returned to South Africa and that their mother faced the same likelihood because of her connection to them. But it also found that state protection was available, so the family did not meet the second requirement for refugee status.
The respondents later agreed that the IPAT decision should be quashed in its entirety. The parties accepted that the tribunal’s reasoning on state protection was inadequate: it had referred to efforts to address xenophobic violence without assessing whether those efforts were effective. The dispute was whether that defective part could be severed while keeping the persecution finding in place.
The High Court refused partial severance in October 2023 and ordered the entire matter returned to the IPAT for a fresh hearing. The family appealed. They argued that a fresh hearing on all issues was unnecessary and that the mother would find giving evidence again distressing. The Court of Appeal agreed with the High Court that her anticipated distress, without medical evidence, did not determine whether severance was appropriate.
Delivering the unanimous judgment on 30 July 2024, Mr Justice Gerard Hogan said the two findings could be separated in this case. He rejected the argument that the passage of almost five years since the original tribunal hearing made that unfair, noting there had been no suggestion that the basis of the family’s persecution claim had materially changed.
The court also rejected the argument that EU law’s requirement for decisions based on up-to-date information prevented severance. The IPAT must assess current country information when reconsidering state protection, Hogan said, but that requirement did not mean the earlier persecution finding had to be reopened.
The appeal was allowed to that extent: the state-protection aspect is severed and must be reconsidered by the IPAT, while the well-founded-fear finding remains. The court’s judgment did not itself grant refugee status. Hogan gave a provisional view that the family should recover their costs; if disputed, the parties were directed to file brief submissions by 1 October 2024 for a final ruling.