The High Court has certified two questions for appeal after partially refusing leave to seek judicial review of an international protection decision. The ruling does not decide the applicants’ protection claims or determine whether the challenged decision should be quashed.
In a decision dated 4 December 2023, Ms Justice Hyland granted the applicants leave to appeal against the part of her 27 October 2023 judgment that had refused leave on certain grounds. She reformulated the questions proposed by the applicants, finding that their original wording did not meet the test for certification. The appeal is to the Court of Appeal.
The underlying challenge concerns a 7 September 2023 decision by the International Protection Appeals Tribunal (IPAT) refusing international or subsidiary protection to the applicants. The applicants had to show “substantial grounds” for contending that the decision was invalid or should be quashed. The October ruling refused leave on some grounds and granted it on others; the December decision concerns only permission to appeal the refusals.
One certified question concerns the applicants’ argument that the International Protection Office (IPO) and IPAT must address each of six statutory questions in every protection claim, even where an applicant fails an earlier test. The applicants argued that IPAT had decided the issue of “nexus” to a refugee Convention ground although the IPO had made no finding on nexus after rejecting the claimed risk of persecution. They said this breached fair procedures and the right to an effective appeal.
Justice Hyland had concluded that the applicants had not established substantial grounds on this argument. She nevertheless certified whether that conclusion was correct, citing the argument’s potential implications for protection decisions generally.
The second certified question concerns the applicants’ claim that membership of the first applicant’s family could constitute a particular social group for the purpose of establishing nexus to a refugee Convention ground. The judge said the applicants had not met their burden based on the material presented at the judicial review leave stage. She noted that they cited a 2015 High Court decision in support of the argument only at the later appeal-leave stage, rather than in their original leave application.
The question certified asks whether the material provided by the applicants on the family-group argument was insufficient to establish substantial grounds in the circumstances. The judgment grants leave to appeal on these two questions; it does not resolve them.