The High Court has dismissed applications by two anonymised applicants from Nigeria for leave to appeal a judgment that had rejected their challenges to decisions refusing them international protection.
In a judgment delivered by Mr Justice Richard Humphreys on 25 February 2018, the court said the applicants’ proposed appeal question concerned the standard of proof for assessing past and present events and whether a person belonged to a particular social group. The judge noted that the question’s two parts overlapped because membership of such a group was itself a factual issue.
The applicants had argued that the tribunal applied the wrong standard when considering past events and the risk of future persecution or serious harm. The judge said much of that ground had fallen away. He said English case law did not establish grounds for judicial review in Ireland, and that the future-harm argument had collapsed following the earlier judgment, which identified that a more flexible test was already being applied.
The judge also said the legal basis for challenging the standard of proof for past events had not been adequately set out in the applicants’ original grounds. Although several possible legal sources had been discussed earlier, the submissions seeking leave appeared to focus on EU law without identifying which EU provisions were relied on.
The judgment gave three reasons why the cases were unsuitable for appeal on the proposed issue: applying a reasonable-degree-of-likelihood test would not have changed the outcome on these facts; the point had not been properly pleaded; and no plausible legal basis had been advanced to show uncertainty in Irish law. The judge said the earlier judgment had found the cases were not borderline cases.
The applicants also objected to comments in the earlier judgment about the potential for challenges to cause procedural disruption. The judge said he was not accusing the applicants or their lawyers of improper conduct, but maintained that the proposed point was not new and that its legal basis had not been sufficiently developed.
The court dismissed both applications. It did not grant leave to appeal or refer the proposed question to the Court of Justice of the European Union.