E.D. (A Minor) v Refugee Appeals Tribunal

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Gerard Hogan
• Judgment Date: 10 November 2011
• Neutral Citation: [2011] IEHC 431
• Date: 10 November 2011
• Docket Number: [2009 No. 955 JR]

D (E)(A Minor) v Refugee Appeal Tribunal & Min for Justice

BETWEEN/

ED (A MINOR SUING THROUGH HIS FATHER AND NEXT FRIEND GD)

APPLICANT

AND

REFUGEE APPEAL TRIBUNAL AND MINISTER FOR JUSTICE AND EQUALITY

RESPONDENTS

[2011] IEHC 431

[No. 955 J.R./2009]

THE HIGH COURT

IMMIGRATION LAW

Asylum

Persecution - Education - Real risk not receive basic education - Discrimination - Violation of basic human right - Whether denial of education constituted severe violation of basic human rights - Whether discrimination amounted to persecution - Whether respondent erred in application of what constituted persecution - Anisminic v Foreign Comp Comm [1969] 2 AC 147, Killeen v DPP [1997] 3 IR 218, Lambert v An tÁrd Chláraitheoir [1995] 2 IR 372, Shannon Regional Fisheries Board v An Bord Pleanála [1994] 3 IR 449 and AMT v Refugee Appeals Tribunal [2004] IEHC 219, [2004] 2 IR 607 followed; Brown v Board of Education (1954) 347 US 483 considered; MST (a minor) v Minister for Justice [2009] IEHC 529, (Unrep, Cooke J, 4/12/2009) and GV v Refugee Appeals Tribunal [2011] IEHC 262, (Unrep, Ryan J, 1/7/2011) distinguished - European Communities (Eligibility for Protection) Regulations 2006 (SI 518/2006), art 9 - Refugee Act 1996 (No 17), s 2 - Constitution of Ireland 1937, Article 42 - Council Directive 204/83/EC, article 9 - Charter of Fundamental Rights of the European Union, article 14 - European Convention on the Protection of Human Rights and Fundamental Freedoms 1950, article 2 of First Protocol - United Nations Convention on the Rights of the Child, article 28 - Certiorari granted (2009/955JR - Hogan J - 10/11/2011) [2011] IEHC 431

D(E) an infant v Refugee Appeals Tribunal

Facts The applicant's parents were born in the Preshevo municipality of Serbia and were of Ashkali ethnicity. An application for asylum was made on the applicant's behalf but was ultimately refused by the first named respondent. The applicant sought to quash the decision of the respondent. The applicant's claim for asylum rested on the contention that he would suffer persecution if returned to Serbia on the grounds that he was likely to face pervasive discrimination such as would impair his right to receive a basic education. The respondent accepted that the applicant would likely face discrimination but determined that the fact he might not receive a full or indeed a basic education was not sufficient to lead to a conclusion that he would suffer persecution. The country of origin information confirmed that the Ashkali and Roma communities in Serbia were subjected to widespread discrimination and of those children that attended school (fewer than 40%) they were sometimes segregated.

Held by Hogan J. in allowing the application and quashing the respondent's decision: That the decision of the U.S. Supreme Court in the case of Brown v. Board of Education of Topeka 347 US 483 (1954) illustrated the point that segregated schooling is a general hallmark of a society where the disadvantaged group will be subjected to pervasive discrimination and exclusion which, in some circumstances, at least, can amount to persecution. The denial of even basic education amounts to a severe violation of basic human rights and amounts to persecution within the meaning of section 2 of the Refugee Act, 1996. In the present case, having regard to the country of origin information, the respondent erred in law in her construction of what constituted persecution. Since the respondent found that there was a real risk the applicant would not receive a basic education if returned to Serbia, the respondent was bound to find that this amounted to persecution within the meaning of section 2 of the Act of 1996.

Reporter: L.O'S.

REFUGEE ACT 1996 S2

ANISMINIC LTD v FOREIGN COMPENSATION CMSN & ANOR 1969 2 AC 147 1969 2 WLR 163 1969 1 AER 208

SHANNON REGIONAL FISHERIES BOARD v BORD PLEANALA 1994 3 IR 449 1995/5/1607

LAMBERT v AN TARD CHLAIRAITHEOR 1995 2 IR 372 1995 2 ILRM 241 1995/9/2660

KILLEEN v DPP & NEILAN 1997 3 IR 218 1998 1 ILRM 1 1998/23/8845

T (AM) v REFUGEE APPEALS TRIBUNAL & MIN FOR JUSTICE 2004 2 IR 607 2004/49/11175 2004 IEHC 219

DALY JUDICIAL REVIEW OF FACTUAL ERROR IN IRELAND 2008 15(1) DULJ 187

V (G) & v (I) v REFUGEE APPEALS TRIBUNAL & MIN FOR JUSTICE UNREP RYAN 1.7.2011 2011 IEHC 262

UNHCR HANDBOOK ON PROCEDURES & CRITERIA FOR DETERMINING REFUGEE STATUS 1992 PARA 51

UNHCR HANDBOOK ON PROCEDURES & CRITERIA FOR DETERMINING REFUGEE STATUS 1992 PARA 53

UNHCR HANDBOOK ON PROCEDURES & CRITERIA FOR DETERMINING REFUGEE STATUS 1992 PARA 54

UNHCR HANDBOOK ON PROCEDURES & CRITERIA FOR DETERMINING REFUGEE STATUS 1992 PARA 55

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 REG 9

T (MS) & T (J)(A MINOR) v MIN FOR JUSTICE UNREP COOKE 4.12.2009 2009/54/13750 2009 IEHC 529

BROWN v BOARD OF EDUCATION OF TOPEKA 1954 347 US 483

FOSTER INTERNATIONAL REFUGEE LAW & SOCIO-ECONOMIC RIGHTS: REFUGE FROM DEPRIVATION 2007

HATHAWAY THE LAW OF REFUGEE STATUS 1991 112

CONSTITUTION ART 42

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS FIRST PROTOCOL ART 2

CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION ART 14

UN CONVENTION ON THE RIGHTS OF THE CHILD ART 28

GLENDENNING EDUCATION & THE LAW 1999 251

O'MAHONY EDUCATIONAL RIGHTS IN IRISH LAW 2006 PARA 18.25

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 REG 9(1)

1 1. The applicant, Master D, was born in the State in 2006, although he is not an Irish citizen. His parents were born in the Preshevo municipality of Serbia and are of Ashkali ethnicity, albeit that they are regarded as Roma in the parents' country of origin. Subject to questions of registration, it would appear that the applicant is Serb. An application was made for asylum on Master D.'s behalf, but this was ultimately refused by the Refugee Appeal Tribunal in a decision delivered on 17 ^th August, 2009. It is this decision which is challenged in these proceedings pursuant to leave which was granted by Dunne J. in a judgment delivered by her on 31 ^st May, 2011.

2 2. Central to the applicant's claim that he will suffer persecution if returned to Serbia is the contention that he is likely to face pervasive discrimination such as will impair his right to receive a basic education. The Tribunal member found he will:

"in all likelihood face discrimination if sent to his country of nationality. I am not persuaded on the evidence submitted and available however that such discrimination will rise to the level of persecution. The fact that the applicant may not receive a full or indeed a basic education is not sufficient in my view to lead to a conclusion that the requirement that there be persecution is satisfied."

3 3. The essential question presented here is whether such a finding of fact ought properly to have compelled the Tribunal member to conclude that there was a well founded fear that Master M. would suffer persecution if he were returned to Serbia.

4 4. The country of origin information attests to the fact the Ashkali and Roma communities in Serbia are subject to widespread discrimination, as evidenced by a climate of indifference, hostility and intolerance among the general public. Thus, in its report on Serbia in June 2008, the UN Committee on the Rights of the Child concluded (at para. 75) that it remained:

"deeply concerned at the negative attitudes and prejudices of the general public and at the overall situation of children with minorities and, in particular, Roma children. The Committee is concerned at the effect this has with regard to discrimination and disparity, poverty and the denial of their equal access to health, education, housing, employment, non-enrolment in schools, cases of early marriage and decent standard of living. The Committee is also concerned at the very low levels of participation in early childhood development programmes and day care and the deprivation of education."

5 5. The views expressed by the European Commission in a report entitled "Serbia 2008 Progress Report" are in much the same vein. It found that:

"There have been some improvements in the number of Roma children attending secondary schools due to the affirmative measures taken by Ministry of Education and the Ministry of Human and Minority Rights. However, the generally low school attendance by Roma children remains a serious problem, in particular among Roma girls."

In practice the Roma population continues to face extremely difficult living conditions, exclusion and discrimination. One of the major persistent problems facing the Roma community is access to personal documents. This has had grave consequences for the ability of large sections of the Roma population to gain access to basic social and economic rights. A significant proportion of the Roma population still lives in extreme poverty and illegal settlements. The Roma population, especially women, are subject to widespread discrimination when it comes to access in the labour market. There are a disproportionately high number of Roma children in special schools for children with learning difficulties. A climate of intolerance towards the Roma population continues to prevail in Serbia."

6 6. A 2008 US State Department report for Serbia found that:

"Romani education remained a problem. Many Romani children, especially girls, did not attend primary school; reasons included family objections, lack of identity documents, judgments by school administrators that they were unqualified and societal prejudice. According to an Open Society Institute report presented in October, only two per cent of Romani children were in preschool, while fewer than 40% attended primary school. In some cases, children who attended school sat in separate Roma-only classrooms or in a group at the back of regular classes....