The High Court has refused an Albanian family’s application for judicial review of a decision affirming that they should not be declared refugees.
Mr Justice David Keane delivered judgment on 27 January 2017. The challenge concerned a decision made by the International Protection Appeals Tribunal (IPAT) on 26 February 2016. The applicants had been granted leave to seek an order quashing that decision on one ground: that the tribunal had applied the wrong test when considering whether compelling reasons arising from their past persecution warranted refugee status.
The tribunal had accepted that the family faced a blood feud in Albania. It found that the mother’s husband had confined himself to the family home there since 2010, and that this self-confinement amounted to persecution of him and, by extension, his close family. It also found the family feared persecution if returned, but that adequate state protection would be available.
The family did not argue before the tribunal that their past persecution alone provided compelling reasons for refugee status. The High Court said the tribunal nevertheless had to consider that question. It did so, acknowledging the psychological impact of the persecution but concluding that it did not reach “the threshold of being atrocious”.
The family argued that “atrocious” imposed an impermissibly high test and that the tribunal had not adequately explained its conclusion. Justice Keane rejected both arguments. He said the regulation did not define “compelling reasons” and that the decision-maker could consider the circumstances of each case. The reference to an atrocious form of persecution was a way of assessing whether past persecution alone provided compelling reasons, not a new test the tribunal had improperly created. The judge also found no obligation to define “atrocious” or give a mechanical explanation of why the circumstances did not meet that description.
The court’s decision addressed the tribunal’s consideration of the compelling-reasons clause in the refugee eligibility regulations. It did not quash the tribunal’s decision or grant refugee status. The judge said it was unnecessary to decide a separate question about whether the clause was within the Minister’s law-making powers; that issue would have to await a suitable case.