The High Court has quashed decisions rejecting two Irish-born children’s refugee appeals, finding that the Refugee Appeals Tribunal failed to assess their claims that they would face persecution in Jamaica as the children of a lesbian mother.
In a judgment delivered on 27 January 2017, Ms Justice Faherty said the Tribunal had wrongly declined to determine the children’s claims because their mother had not pursued a new asylum claim on her own behalf. The judge said the children were entitled to have their own claims adjudicated, whatever their merits.
The proceedings challenged Tribunal decisions issued on 6 February 2013, which upheld recommendations not to declare the children refugees. Their mother, identified as K.G., had lodged the children’s claims in 2012. The claims included fears linked to their mother’s sexuality, general violence in Jamaica, and their mother’s former partner. A separate claim for the younger child concerned possible persecution by her mother’s family because her father was Muslim.
The Tribunal had considered the mother’s assertion that she was a lesbian but said it could not determine the children’s claim without evidence establishing her own fear of persecution. The High Court said the Tribunal’s approach was not an adverse credibility finding; rather, it had declined to consider the children’s claims because their mother had not sought to re-enter the asylum process. That amounted to a failure to give the children’s claims individual consideration and an abdication of jurisdiction, the judge found.
The court also said the Tribunal had not assessed the possible relevance of country information about the treatment of gay and lesbian people in Jamaica to the children’s claims. If the mother’s asserted sexuality were established, the decision-maker would need to consider whether the children would have effective state protection. The High Court did not itself decide those issues or determine whether the children qualified for refugee status.
The judge rejected the challenge to the Commissioner’s earlier decision to limit the children to a papers-only appeal, finding that the judicial review proceedings were not the proper vehicle to challenge that decision. She also found no basis to overturn the Tribunal’s treatment of the claims concerning general violence or the mother’s former partner.
Because the proceedings were “telescoped”, the court granted leave and made an order quashing the Tribunal decisions, remitting both matters for de novo consideration by a different Tribunal member. The judgment did not itself grant refugee status.