The Court of Appeal has allowed an anonymised woman’s appeal against the refusal of her international protection application and remitted the case for reconsideration of whether she is lesbian and, if so, whether she would face persecution or a risk to her personal safety if returned to Zimbabwe.
The judgment, delivered by Ms Justice Ní Raifeartaigh on 14 October 2022, said the decision-maker had not made an explicit finding on the appellant’s sexual orientation. The court held that the issue was central to her claim and required a clear answer, separate from whether her account of specific events was credible.
The woman, a Zimbabwean national, applied for protection after arriving in Ireland in September 2017. She said she had faced threats and violence because of her relationship with a woman and feared harm if returned. The International Protection Office recommended refusing refugee and subsidiary protection declarations. A separate decision refused permission to remain in Ireland.
The Court of Appeal said the protection report identified several factual issues but did not list the appellant’s sexual orientation itself as one of the questions to be decided. It found that the report’s statement about which parts of her account were accepted as credible was ambiguous: it could mean her narrative was rejected without deciding whether she was lesbian. The court said the decision-maker needed to determine that question and, if the answer was yes, assess the risk on return using the evidence and country information.
The appeal succeeded on this ground alone. The court ordered the matter remitted for reconsideration and said the permission-to-remain decision also required reconsideration in light of the outcome. It stressed that the renewed assessment could consider the appellant’s account and interview answers, and might or might not produce a different result.
The court rejected the appellant’s other grounds. It upheld the finding that the law did not require the same international protection officer to arrange the interview and make the later recommendation. It also held that an addendum to the interview report could be prepared after the interview, provided it was completed before the relevant decisions, and upheld the reasoning on refoulement. The court rejected the challenge concerning cross-examination of an official.
The judgment expressed a provisional view that the appellant should receive the costs of the appeal. The respondents had 14 days from delivery of the judgment to seek a hearing on costs; otherwise, an order in the proposed terms would be made.