Supreme Court: Denial of education can establish fear of persecution and ground for refugee status

About this case:

• Judgment:
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In the circumstances of the particular case involving a Serbian child of Ashkali ethnicity, Mr Justice Clarke found that the child had been correctly refused refugee status based on the individual facts of the case, but that it was possible for sustained discrimination and denial of the right to education to amount to a fundamental denial of human dignity.

Background

An application for refugee status was made on behalf of a child, ED, which was refused by the Refugee Applications Commissioner, and in 2009; the Refugee Appeals Tribunal dismissed the appeal against the failure of the Commissioner to recommend refugee status.

The Tribunal concluded that the possible discrimination that ED might face on return did not amount to the denial of human dignity in any material way, and that the standard of sustained or systemic denial of core human rights was not met.

In judicial review proceedings in 2011, the High Court quashed the decision of the Tribunal (ED v. The Refugee Appeals Tribunal & anor 3 I.R. 736) – 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 the Supreme Court.

Thus, the Supreme Court had to consider the circumstances in which it was possible to establish grounds for refugee status arising out of an allegation relating to a failure to provide basic education.

Grounds of Appeal

(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?

The Refugee Appeals Tribunal accepted that “in certain circumstances systematic discrimination carried out or conducted by State authorities and leading to a sustained denial of a fundamental human right (even where the right in issue is a secondary social right, or a “third tier” right) may amount to persecution.” It was also accepted that “Paragraph 54 of the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status acknowledges that, in certain circumstances, discrimination which results in a serious restriction on a person’s right to access normally available education facilities may amount to persecution”.

Discussion

Justice Clarke accepted that the trial judge came to his conclusions based on a denial of basic education, but said that the general principle was potentially more wide ranging and could relate to a suitably serious and persistent denial of a whole range of rights.

There was a requirement for an overall assessment of the elements of discrimination asserted to determine whether they cumulatively could be said to be sufficiently serious so as to amount to persecution, which would involve:

Justice Clarke held that the overall assessment must be whether there was a well-founded fear on the part of the individual concerned that, by reason of their ethnicity (or for other Convention reasons), the cumulative effect of state relevant discrimination led to the conclusion that there would be a fundamental denial of human dignity.

Justice Clarke stated that the Court’s task was to consider “solely the legal issue” as to whether the decision of the Tribunal, to the effect that ED did not qualify for refugee status, was legally sustainable.

The Court was unanimous in concluding that the decision of the Tribunal should not be quashed – however Justice Clarke stated that at the level of common humanity, there was a very strong case for suggesting that the authorities who have jurisdiction to consider all matters concerning ED should have high regard to humanitarian concerns before deciding on any matter relating to his future.

The Court was satisfied that the High Court was in error in concluding that, “in light of findings of fact of the RAT and the sustainability of those findings of fact, it was permissible to reach a conclusion that the educational disadvantage established in this case was sufficient to require a determination that the threshold for persecution had been met”.

Allowing the State’s appeal against the decision of the High Court, the Supreme Court held that the Tribunal was within the range of conclusions which were open to it on the evidence and materials before it and that the Tribunal took an appropriate approach to assessing whether the threshold for persecution had been met on the basis of those findings.

Mr Justice Peter Charleton concurring in a separate judgment, Justice Clarke emphasised “a strong view that humanitarian considerations should play a significant role in any future determination” on ED’s future.