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

• Jurisdiction: Ireland
• Judge: Mr Justice Peter Charleton,Mr. Justice Clarke
• Judgment Date: 21 December 2016
• Neutral Citation: [2016] IESC 77
• Court: Supreme Court
• Docket Number: [S.C. Nos. 50 & 62 of 2012],Supreme Court appeal number: 2012/50 [2016] IESC 000 High Court record number: 2009/955JR [2011] IEHC 431
• Date: 21 December 2016

[2016] IESC 77

An Chuirt Uachtarach

The Supreme Court

Clarke J.

Charleton J.

Denham C.J.

O'Donnell J.

Clarke J.

Laffoy J.

Charleton J.

Supreme Court appeal number: 2012/50

[2016] IESC 000

High Court record number: 2009/955JR

[2011] IEHC 431

Between/

E.D. (a minor suing by his father and next friend, G.D.) (Education)

Applicant/Respondent

and

The Refugee Appeals Tribunal, the Minister for Justice, Equality & Law Reform

Respondents/Appellants

Asylum, immigration & nationality – Refugee status – Claim for – Education – Whether failure to provide education sufficient to establish grounds for claim for status

Facts: The applicant had claimed refugee status and had appealed to the first appellant after the claim was refused. The High Court had granted leave for judicial review and quashed the decision of the first state body dismissing the applicant’s appeal. The High Court had certified that the case involved a matter of public law, and the matter came on appeal and cross appeal to the Supreme Court.

Held by Mr Justice Clarke, the other Justices concurring and Justice Charleton also giving a judgment, that the appeal would be allowed and the cross appeal dismissed. Mr Justice Clarke was satisfied that the High Court had fallen into error by reaching a conclusion that the threshold for persecution had been met by the applicant, in the light of the first state body’s findings of facts. In relation to the cross appeal, this was dismissed as the range of conclusions made by the first state body were open to it given the evidence before it. Notwithstanding the conclusion of the matter, Mr Justice Clarke strongly urged that humanitarian considerations be taken account by any relevant bodies making decisions on the applicant’s future.

Judgment of Mr. Justice Clarke delivered the 21st December, 2016.

1. Introduction

1.1 The circumstances, if any, in which it may be possible to establish the grounds for refugee status arising out of an allegation relating to a failure to provide basic education lies at the heart of this appeal. An application for refugee status was made on behalf of the applicant/respondent (‘the applicant’) and, having been refused by the Refugee Applications Commissioner (‘the R.A.C.’), was the subject of an appeal decision by the first named appellant/respondent (‘the R.A.T.’) given on the 17th August, 2009. The R.A.T. dismissed the appeal against the failure of the R.A.C. to recommend refugee status. The dismissal of that appeal by the R.A.T. was the subject of judicial review proceedings in which leave was granted by the High Court on the 31st May, 2011 with a judgment of that Court quashing the decision of the R.A.T. being delivered on the 10th November, 2011 ( ED v. The Refugee Appeals Tribunal & anor [2011] 3 I.R. 736).

1.2 However, the High Court certified that the matter involved a point of law of exceptional public importance and that it was desirable in the public interest that an appeal should be taken to this Court. Such a certificate was, of course, necessary, at the relevant time, in order that such an appeal should be pursued although the precise position in that regard may now be somewhat different in the light of the consequences of the adoption of the 33rd Amendment to the Constitution and the establishment thereafter of the Court of Appeal.

1.3 Be that as it may the grounds on which an appeal to this Court under the then regime were certified were as follows:-

‘(a) Whether discrimination against the group to which a child belongs giving rise to a risk that the child would not get a basic education if returned to his country of origin must be found to amount to persecution within the meaning of Section 2 of the Refugee Act, 1996?

(b) Whether the High Court on an application for judicial review can substitute its own assessment of whether the contended for infringements of basic civil liberties amounted to ‘persecution’ within the meaning of Section 2 of the 1996 Act for that of the Tribunal Member?

(c) Whether the potential denial of a basic education is capable of constituting its sufficiently severe violation of basic human rights so as to amount in law to persecution?’

1.4 Thereafter the respondents/appellants (collectively ‘the State’) filed a notice of appeal on the 7th February, 2012 and a cross appeal was filed on behalf of the applicant on the 10th February, 2012.

1.5 The cross appeal derives from a contention that there were further points raised on behalf of the applicant in the proceedings before the High Court which the trial judge did not find it necessary to determine. Those points related to an allegation that the relevant tribunal member relied on country of origin information from a different country and also did not deal with other aspects of the case for refugee status made (that is allegations concerning discrimination beyond educational) together with a subsidiary question as to precisely what the Court should do if, in all the circumstances, it was considered appropriate to remit the matter back to the R.A.T.

1.6 In order to understand the issues which arise with more precision it is necessary to set out the procedural history in a little more detail.

2. Procedural History

2.1 In the original application for refugee status made on his behalf it was asserted that the applicant would experience severe problems if returned to Serbia on the basis of his Ashkali ethnicity. Thus the case sought to be made was that he had a well-founded fear of persecution on the grounds of race.

2.2 Various allegations were made concerning the policies said to be operated by the Serbian authorities towards the Ashkali people. Furthermore, it was said that, in the applicant's particular case, his difficulties in the event that he were to be returned to Serbia would be significantly exacerbated by what was said to be psychiatric difficulties from which his mother was suffering. On that basis it was argued that the ordinary support and protection which might be expected at least to alleviate his difficulties in Serbia would not be available. It was also said that the conditions in Serbia were such that it was improbable that any treatment would be made available to his mother. The position in which he would, in those circumstances, find himself was said to breach his rights guaranteed under the Constitution.

2.3 Finally, emphasis was placed on the position of the applicant as a minor and the rights thereby said to arise under a variety of international instruments. In that context it was asserted that Serbia was guilty of continuing breaches of its obligations under such instruments including, for example, the Universal Declaration of Human Rights and the Convention on the Prevention and Punishment of the Crime of Genocide. As noted earlier the R.A.C. did not recommend that refugee status be granted to the applicant and an appeal was pursued to the R.A.T.

2.4 The R.A.T. affirmed the recommendation of the R.A.C. to the effect that the applicant should not be declared a refugee. Although it was accepted that the applicant would in all likelihood face discrimination if returned to Serbia, the R.A.T. was not persuaded on the evidence that such discrimination would rise to the level of persecution. The fact that the applicant might not receive a full or even basic education was held to be insufficient to conclude that the statutory persecution requirement was met.

2.5 In its decision, the R.A.T. undertook an analysis of discrimination in the context of conduct which may or may not constitute ‘persecution’ for the purposes of the statutory threshold. It was noted that the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status suggests that discrimination per se is insufficient to establish a claim for refugee status. However, regard was also had to the leading text in the area of refugee law, The Law of Refugee Status (Hathaway, Cambridge University Press, 2nd Ed, 2014) and the suggestion therein that refugee law ought to concern itself with actions which deny human dignity in any key way. That text suggests that the sustained or systemic denial of core human rights is the appropriate standard for determining persecution.

2.6 The R.A.T. acknowledged that the right to education is proclaimed by the Universal Declaration of Human Rights, 1948 and the International Covenant on Economic, Social and Cultural Rights, 1966. However it was noted that it is not incorporated in the International Covenant on Civil and Political Rights, 1966. The ‘right’ to education was therefore held to be a social or second generation right and was noted to be ranked third in the four-tier hierarchy of rights discussed by Professor Hathaway in The Law of Refugee Status. The R.A.T. did not accept from the evidence adduced that there would be an absolute denial of education in respect of the applicant. The R.A.T. considered that such a finding would involve an element of speculation which would not be permitted in the refugee determination process.

2.7 As the applicant had never lived in Serbia, the R.A.T. held that it was left to rely on objective accounts of the contemporary position in Serbia and deduce therefrom what might await the applicant if he were to be returned to reside there.

2.8 At the time of the R.A.T. decision, the applicant had not yet reached school attendance age. While it was accepted that the situation was far from ideal in Serbia, it was noted that initiatives had been put in place to deal with some of the problems. There is mention of the fact that the UNHCR had ceased recommending that the Ashkali ethnic group not be returned to their original country. This is an aspect of the determination to which it will be necessary to return in due course.

2.9 The R.A.T. concluded that, regardless of whether or not the elements are taken...