THE HIGH COURT JUDICIAL REVIEW Record No. 2025/451 JR [2026] IEHC 360 Between: I.U. Applicant -andTHE INTERNATIONAL PROTECTION APPEALS TRIBUNAL and THE MINISTER FOR JUSTICE Respondents Judgment of Mr Justice Cian Ferriter delivered on 11th June 2026 Introduction
- In these judicial review proceedings, the applicant seeks an order quashing the decision of the first respondent (“the Tribunal”) dated 6 March 2025 upholding the decision of the International Protection Office (“IPO”) recommending refusal of the applicant’s application for international protection (refugee status and subsidiary protection). Background
- The applicant is a 38 year old national of Nigeria. He is single and does not have any children. His claim is that on 1 February 2011, whilst driving a truck for work in his home country of Nigeria, he was involved in a road traffic accident in which two boys on a power bike came into the lane in which he was driving and crashed into his truck. Although the applicant brought the boys straight to hospital, they subsequently died of their injuries. One boy was the son of a prominent Nigerian politician and the other boy was the son of a powerful businessman. The Tribunal accepted that the accident occurred as described and also that as a result of the accident, the applicant was targeted by the boys’ families. This included the applicant’s truck being burned out, the applicant being attacked and stabbed and his family home being burned down. The applicant’s mother was also injured. The police attending the scene of the accident said that the boys were intoxicated and that the applicant was not at fault. They also took a statement from the applicant when he was in hospital following being attacked. The applicant claims that he was still pursued by the boys’ families after he was discharged from hospital and that he continued to fear for his life.
- The applicant moved to his aunt’s house in Kaduna but could not stay there after she returned to her hometown which was close to the accident locus. The applicant’s cousin was emigrating at this time and so the applicant decided to leave Nigeria to escape his persecution. In October 2011, the applicant travelled to Libya with his cousin who then disappeared. In December 2012, the applicant travelled to Italy where he applied for asylum but left during the asylum process, travelling thereafter to Germany, France and the UK. The applicant arrived in Ireland in 2021 and applied for international protection here.
- The applicant’s international protection claim was rejected by the IPO on 17 November
- The applicant appealed to the Tribunal and an oral hearing was held on 3 December
- The Decision
- In its decision of 6 March 2025 ("the decision"), the Tribunal rejected the applicant's appeal. The Tribunal found the applicant’s claim to be credible but did not find that the Applicant had established a Convention nexus. The Tribunal further found that state protection and/or internal relocation were available to the applicant. I will come to the relevant parts of the decision in more detail in the context of discussing the applicant’s case in these proceedings. The applicant's case
- The applicant seeks to challenge the Tribunal’s decision under three headings, being an alleged unlawful reversal of the statutory presumption in s. 28
(6)of the International Protection Act 2015 ("the 2015 Act"); an alleged failure in the Tribunal’s decision on the question of state protection to properly engage with and evaluate the applicant’s case as to why there was no effective state protection available in his particular circumstances; and an alleged failure to apply the correct legal test on the question of internal location. 8. I will address each of these issues in turn. Alleged Reversal of Statutory Presumption Arising from s.28
(6)of the 2015 Act
- Section 28 of the 2015 Act is found in Part 4 of that act. Part 4 is headed "Assessment of applications for international protection". Section 28 is headed "Assessment of facts and circumstances".
- Section 28 sets out a variety of matters to which regard must be had when an application for international protection is being assessed by an international protection officer or a Tribunal on appeal. Section 28
(6)provides: "The fact that an Appellant has already been subject to persecution or serious harm, or to direct threats of such persecution or such serious harm, is a serious indication of the Appellant's well-founded fear of persecution or real risk of suffering serious harm, unless there are good reasons to consider that such persecution or serious harm will not be repeated." 11. In MY v IPAT [2022] IEHC 345, I held (at para. 20) that the presumption in s. 28
(6)is a significant one in an applicant's favour. I explained that view (at para 20) as follows: “In the absence of such presumption being available to an applicant, the applicant is required to discharge the ordinary burden of proof of establishing facts on the balance of probabilities, with the benefit of the doubt being afforded to the applicant, that there is a reasonable degree of likelihood that the applicant will be subject to future acts of persecution if returned to his country of origin […] In contrast, if the applicant is entitled to the benefit of s.28
(6), he/she starts with a presumption, based on the fact that the applicant has already been subject to persecution or serious harm, or to direct threats of same, that the applicant has a well-founded fear of persecution or real risk of suffering serious harm; as s.28
(6)provides, such past persecution or serious harm “is a serious indication of the applicants well-founded fear of persecution.” In those circumstances, the onus shifts to the assessing authority to rebut the presumption by demonstrating “good reasons to consider that such persecution or serious harm would not be repeated.” 12. The Tribunal specifically identified at para.34 of its decision that s.28
(6)applied in this case given the evidence of past persecution and correctly set out the terms of s.28
(6): “34. The Tribunal is satisfied that this incident were sufficiently serious by their nature to constitute serious harm. The application of Section 28
(6)of IP Act 2015 therefore arises. It provides: "The fact that on Appellant has already been subject to persecution or serious harm, or to direct threats of such persecution or such serious harm, is a serious indication of the Appellant's well-founded fear of persecution or real risk of suffering serious harm, unless there are good reasons to consider that such persecution or serious harm will not be repeated."
- At para 35 the Tribunal stated as follows: “
- In circumstances where these events occurred over twelve years ago and given that the Appellant has the viable option of internally relocating within Nigeria, to such places as Enugu, Ekiti or Abia which were suggested to him by the IPO, the Tribunal cannot identify any good reason to consider that the harm that the Appellant suffered in the past would be repeated if he were returned to Nigeria today.”
- The applicant says that the Tribunal in this paragraph wrongly reversed the onus of proof for rebutting the statutory presumption and had regard to matters (the passage of time and internal relocation options) which themselves failed to engage with the applicant’s case and which in any event were not appropriately considered given the erroneous reversal of the onus for rebutting the statutory presumption.
- Counsel for the respondents did not seriously press the case that the terms of para 35 were not in error but submitted that any such error was clearly overtaken by the terms of the next paragraph of the decision, paragraph 36, which provided: “
- Even were it to be accepted that the families of the deceased boys were still interested in harming the Appellant, the question then for the Tribunal is whether reasonable steps are taken by the authorities in Nigeria to prevent the kind of harm at the centre of the Appellant's claim, this includes an assessment of whether Nigeria operates an effective legal system for the detection, prosecution and punishment of acts constituting serious harm.”
- The respondents submitted that this paragraph made clear that the Tribunal did not proceed to consider state protection on the basis that the applicant had not established a future risk of harm. The applicant contended that the opening line of para 36 was not sufficient to make clear that the presumption as to future harm was properly applied; the applicant argued that the Tribunal had put matters in terms of a hypothetical and did not proceed on the basis that the risk of future persecution was a fact.
- Counsel for the respondents relied on the following passage from para 51 of the judgment of Phelan J in NG v International Protection Appeals Tribunal [2023] IEHC 395 (“NG”), as quoted with approval by Butler J at para 88 of her judgment in the Court of Appeal in that case upholding Phelan J (see [2025] IECA 208) to argue that the crucial question before the Tribunal was whether state protection was available and that the real gravamen of the Tribunal’s decision here was that there was such state protection. "
- Where the Tribunal accepts that there is a future risk of harm based on previous occurrences, there can be no basis for contending that the Applicant has been deprived of the benefit of s. 28
(6)of the 2015 Act. Ultimately this established risk (whether presumptively established and not rebutted or established on the basis of the material) is found to not give rise to a right to protection because State protection is available. The application does not fail because it is concluded, despite the rebuttable presumption under s. 28
(6), that the Applicant has not demonstrated a risk of harm. Instead, it fails because it is concluded that State protection is available." 18. In my view, the Tribunal was in error in its approach to the statutory presumption in s.28
(6)as set out at para. 35 of its decision (set out above). It was not correct to express the approach as being one of whether there was any good reason to consider that the past persecution would be repeated if the applicant were returned to Nigeria. This is an inappropriate reversal of the statutory presumption in s. 28
(6)which requires a presumption of a well-founded fear of persecution unless there are good reasons to consider that such persecution will not be repeated. I might also observe that the reasons set out at para. 35 of the decision as justifying this incorrect approach were themselves questionable on their own terms. The question of a viable option of internal relocation within Nigeria is not relevant to the question of whether the form of persecution which the Tribunal accepted the applicant had suffered in the past could re-occur in the future; it wrongly mixes up the question of risk of persecution with the separate (but related) question of whether state protection will be available to protect against the feared persecution. Furthermore, on its own terms, the reliance by the Tribunal in this paragraph of its decision on the length of time elapsed since the events complained of by the applicant failed to engage with the applicant’s case that he had reason to believe that he was still at risk of persecution at the hands of the actors who were responsible for the past persecution notwithstanding the lapse of time. 19. However, in my view, despite the errors contained in para. 35 of the decision, as identified above, it seems to me that the Tribunal in fact thereafter proceeded on the alternative – and correct – basis that the question of state protection did have to be addressed because the applicant had established a future risk of serious harm. In that regard, akin to the approach taken by Phelan J in NG, the applicant was not in substance deprived of the benefit of s. 28
(6). The real basis of the Tribunal's decision was that the Tribunal concluded that state protection was available to the applicant notwithstanding the risk of future persecution if returned to Nigeria. Accordingly, I do not see that the errors made by the Tribunal in para. 35 of the decision are such that it would be appropriate, on that basis, to quash the Tribunal's decision. Rather, I will proceed to assess the question of whether the Tribunal erred in its assessment of the availability of state protection, as alleged by the applicant.
- In that regard, I think there is force in the submission by counsel for the respondents that the real issue in these judicial review proceedings is whether the state protection analysis conducted by the Tribunal was legally valid. If it was, the question of the availability of internal relocation does not arise on the facts as the applicant's case on internal relocation was essentially that there was no state protection available anywhere within Nigeria for him and therefore to find that he could safely internally relocate was not a valid finding. On the other hand, if the applicant is right on his case in relation to the Tribunal's assessment of the question of state protection, it must follow that the decision falls in any event. Accordingly, I will turn to the issue of how the Tribunal dealt with the question of availability of state protection in this case. Availability of State Protection
- Section 28
(4)(a) of the 2015 Act requires the Tribunal to take account of all relevant facts as they relate to the country of origin at the time of taking a decision, with reference to country of origin information (“COI”). S.28
(4)(
- b)and (
- c)of the 2015 Act further require the Tribunal, in its assessment of a claim to take account of “the relevant statements and documentation presented by the applicant” and “the individual position and personal circumstances of the applicant”. 22. Applying these requirements to the assessment of state protection, Barrett J in BC v International Protection Appeals Tribunal [2019] IEHC 763 (“BC”) at para 10 held that a Tribunal must establish whether the state in question takes “reasonable steps to prevent the persecution or suffering of the serious harm feared by a particular applicant”. 23. In NU v IPAT [2022] IEHC 87, citing BC, Phelan J held at para 55 that, state protection under s.31 of the 2015 Act: “requires an individual, personal consideration of the factors relevant to access to state protection of the applicant and not nationals of the state generally. […] The prescribed statutory pathway requires the Tribunal to proceed to instead consider whether actual state protection within the meaning of s. 31 is available in the individual circumstances of the applicant.” (emphasis supplied) 24. In order to set in context the arguments of the parties on the state protection issue, it is necessary to set out the relevant parts of the decision which are contained at paras 37 to 39 of the decision, as follows: “37. The Tribunal refers to the following passage from OAA v. Refugee Appeals Tribunal [2007) IEHC 169, where Feeney J stated: "The Tribunal member correctly identified that .the obligation was on the Appellant to provide clear and convincing evidence of the State's inability to protect. This was not a situation of a complete breakdown of law and order and therefore the correct approach was that it must be presumed that the -State was capable of protecting its citizens. It was recognised that such presumption could be rebutted but that such rebuttal required clear and convincing evidence." 38. Absent reliable and convincing proof to the contrary, it is to be presumed that the Nigerian State is capable of protecting its citizens. The Tribunal has considered available COI and accepts that corruption exists in Nigeria and that there is a lack of accountability at the top levels of government, creating extensive opportunities for abuse of power and political corruption. Nonetheless, taken as a whole, the COI before the Tribunal and cited by the IPO in the decision under appeal, does not suggest that there are fundamental shortcomings or ineffectiveness in the way that the Nigeria police investigate ordinary crimes or perform their normal police functions. The Tribunal views the COI before it as describing a broadly functioning police force in Nigeria, albeit one where checks and balances could be improved. 39. While acknowledging that COI does disclose some issues, the Tribunal finds, on the evidence before it, having regard to the particular circumstances of this case, that state protection in Nigeria, while less than perfect, is available to the Appellant in respect of his potential aggressors. The Tribunal does not consider that the Appellant's subjective views of the unavailability of state protection is objectively well founded and the Tribunal is satisfied that the COI, taken as a whole, demonstrates that the Nigerian authorities maintain effective security and control over the country and that there is a functioning police force and a reasonable system in place for the detection, investigation, prosecution and punishment of crime which provides effective and non-temporary protection against persecution and serious harm, to which the Appellant has access.” 25. As the Tribunal noted at para. 10 of its decision, the applicant's case was that "The father of one of the deceased boys was a top politician and the father of the other deceased boy was a wealthy businessman, and that these men were saying that anybody who kills their sons will…not be allowed to live and they sent thugs after the appellant to kill him". The applicant’s essential case was that the powerful men who had persecuted him would likely do so again as their status put them above the law such as to render state protection ineffective in his particular circumstances. This was a key part of the particular circumstances of his claim. 26. The applicant tendered COI to the IPO and to the Tribunal in support of his appeal which sought to substantiate the contention that there was significant corruption affecting the government in Nigeria including the judiciary, the security forces and the Nigerian police force. Thus, at para. 27 of the applicant’s submissions to the Tribunal, the applicant quoted the European Asylum Support Office as reporting that the Nigerian police force, as the principal law enforcement agency in the country, was considered by the Nigerian population as "the most corrupt and violent institution in Nigeria". A later report from the same body was also cited by the applicant in his appeal submissions which stated that the Nigerian police force was considered oppressive and ineffective and susceptible to endemic corruption. 27. The applicant's core argument in these proceedings on the question of state protection is a simple one: that the Tribunal failed to consider the question of state protection as it pertained to the applicant's personal circumstances being a Nigerian who was at risk of persecution from non-state actors who were politically well-connected and therefore above the law. He submits that the Tribunal simply failed to have regard to the politically well-connected status of the actors of persecution when assessing the question of availability of state protection and that this approach invalidates the decision. 28. Counsel for the respondents contended that the Tribunal was aware of the nature of the applicant's case, as reflected in the terms of para. 10 of the decision, and that the Tribunal legitimately assessed and applied the relevant COI by acknowledging that, while the COI did disclose some issues and that state protection was less than perfect, it was nonetheless available to the applicant in respect of his potential aggressors having regard to the particular circumstances of his case. She submitted that, at para 39 of its decision, the Tribunal specifically refers to the “particular circumstances” of the applicant's case, his potential aggressors and the applicant’s subjective view of his feared persecution, and engaged with the COI. She also submitted that the findings made by the Tribunal were reasonably open to it, particularly where the evidence was that the applicant had reported his assault to the police after the accident but had not followed up on that report such that he could not demonstrate that there was in fact a failure of state protection in his case. 29. In my view, the Tribunal materially failed to engage with the applicant's case that state protection would not be available in his case because the powerful status of the fathers of the boys killed by him in the accident was such as to render them above the law and that this fact, coupled with the COI evidence to the effect that the police forces in Nigeria were susceptible to corruption, meant that he had satisfied the burden of demonstrating that state protection would not be available in his particular circumstances. 30. In this regard, in my view, it is telling that when the Tribunal summarised the material issues of the applicant's claim at para. 18 of the decision, it made no reference to the fact that the deceased boys’ fathers were powerful and politically connected; this omission appears thereafter to have infected the Tribunal’s approach to the assessment of the question of availability of state protection in the applicant’s particular circusmtances. 31. In the context of assessing whether there was a nexus between the persecution the applicant feared if returned to Nigeria and one of the Refugee Convention grounds (a matter not in issue in these proceedings), the Tribunal determined that it was not satisfied that the applicant had established a Convention nexus and reasoned in that regard that it reported the assault on him to the police and that report was recorded. It noted that the applicant moved hundreds of miles away from the location of the assault, to Kaduna, and that the applicant gave no account of following up with the police regarding their investigation in the subsequent year and that therefore there was no evidence before the Tribunal to suggest that he was refused state protection. The Tribunal found in that context that the available country reports did not support the proposition that Nigeria does not operate an effective legal system for the protection, prosecution and punishment of criminal acts. 32. The Tribunal then went on to assess the question of subsidiary protection and considered state protection in that context at para. 38 of decision (set out above). It is this analysis that is in issue in the proceedings. In that paragraph, the Tribunal accepted, from the COI, that corruption existed in Nigeria and that there was a lack of accountability at top levels of government, creating extensive opportunities for abuse of power and political corruption. It went on to find that, nonetheless, taken as a whole, the COI before the Tribunal and cited by the IPO in the decision under appeal did not suggest that there were fundamental shortcomings or ineffectiveness in the way that the Nigeria police investigate "ordinary crimes or perform their normal police functions". The Tribunal took the view that the COI before it described a broadly functioning police force in Nigeria, albeit where checks and balances could be improved. 33. The difficulty with this approach is that the Tribunal was not being asked to assess the potential effectiveness of the police in providing state protection in relation to the investigation of ordinary crimes. It was being asked (and, as a matter of law, was required) to assess the question of state protection through the prism of the particular circumstances of the applicant's case (a case which appears to have been accepted by the Tribunal), namely that his potential aggressors were politically powerful and wellconnected and therefore in a position, in a country with serious shortcomings in its police force, to persecute the applicant without fear of consequence. In my view, the Tribunal failed in its duty to carry out this assessment. Nowhere in its assessment of state protection in paragraphs 37 to 39 of its decision does the Tribunal reference that the applicant was alleging that his aggressors, as powerful and politically well-connected people, could be above the law in a country with a flawed police force. That case was simply not engaged with by the Tribunal when assessing the availability of state protection in the applicant’s particular circumstances. As such, the Tribunal fell into legal error. 34. I should make clear that this is not a case of the Tribunal not validly assessing the COI; rather, it is a case of the Tribunal not assessing the COI in relation to state protection through the correct prism of the case actually made by the applicant as to his particular circumstances and the particular factors relevant to why he believed he would not get state protection. While it may have been the case that the Tribunal could have found on a fair assessment of the COI that state protection would be available even in the particular circumstances of the applicant’s case, it did not conduct such an assessment by reference to the case actually made by the applicant and apparently accepted by the Tribunal. Accordingly, the Tribunal’s approach was in error. 35. In the circumstances, in my view, it is necessary to make an order quashing the Tribunal's decision and directing that the applicant's claim be assessed afresh by a new Tribunal. In arriving at this conclusion, I am not to be taken as expressing any view as to whether the applicant will or should be successful in respect of his case as to state protection on a fresh Tribunal hearing. That will be a matter for the new Tribunal to assess on the basis of the evidence and submissions before it. However, it is important that the new Tribunal addresses the case actually made by the applicant in relation to state protection. Internal Relocation 36. As I have found that the Tribunal did not lawfully address the question of State protection, and the decision must be quashed as a result, I do not need to consider the question of internal relocation, strictly speaking. However, given that the matter will now fall to be determined afresh by a new Tribunal, I should note for completeness my view that the Tribunal in its decision did not properly address the question of internal relocation. 37. The only reference to internal relocation contained in the decision was the passing reference in paragraph 35 of the decision (set out earlier), in the context of assessing the statutory presumption under s. 28
(6), to the Tribunal's view that the applicant "has the viable option of internally relocating within Nigeria" to the various places suggested to him by the IPO. If internal relocation were to be in issue on a fresh assessment of the applicant’s claims, it is difficult to see how such a passing reference would satisfy the legal obligation on a Tribunal to conduct a clear and careful assessment of whether there is a risk of persecution or serious harm in the proposed area of relocation and, if not, whether it would be reasonable to expect the applicant to stay in that location. 38. The principles to be applied to an assessment of an internal relocation alternative were set out by Harding Clark J in K.D. (Nigeria) v Refugee Appeals Tribunal [2013] 1 IR 448 at paragraph 28
(5): “Where there is a well-founded fear of persecution and a general area has been identified as an alternative to refugee status then the protection decision maker must pose two questions: (
- i)is there a risk of persecution/serious harm in the proposed area of relocation? If not, (
- ii)would it be reasonable to expect the applicant to stay in that place?” 39. As stated by (Tara) Burns J in NNM v IPAT [2020] IEHC 590, at para. 9, there is an onus on a Tribunal to engage in "a careful analysis" as to whether internal relocation is an option available to an applicant; such analysis requires the Tribunal to determine whether it was reasonable to expect the applicant to stay at the proposed location having regard to her personal circumstances and the general conditions prevailing on the ground. As Burns J noted, a high threshold must be passed before a Tribunal can be satisfied that internal relocation is a reasonable option in light of the particular circumstances of the applicant. Phelan J in ES v International Protection Appeals Tribunal [2023] IEHC 613 at para. 60, also reiterated the "high threshold" and "careful consideration" mandated in cases where an applicant would be recognised as a refugee but for the fact that he can safely relocate. 40. Given the evidence of the applicant to the IPO and the Tribunal that he believed he was at risk anywhere in Nigeria if returned there, it is difficult to see that the approach taken by the Tribunal in the decision here could have satisfied the legal test for the proper conduct of an internal relocation analysis. 41. Again, I should emphasise in expressing that view that the question of internal relocation if it arises on the fresh hearing of the applicant’s claims will be a matter for the new Tribunal to assess in light of the evidence and submissions before it. Conclusion 42. For the reasons outlined above, I will make an order of certiorari quashing the Tribunal's decision and remitting the matter to a new Tribunal for a fresh assessment of the applicant's international protection claims.