The Supreme Court appeal in the case of ED, a minor, concerned the judicial review of a Refugee Appeals Tribunal decision. In a concurring judgment delivered on 21 December 2016, Mr Justice Peter Charleton agreed with the order proposed in the principal judgment by Mr Justice Clarke and set out observations on education claims and the limits of judicial review.
Justice Charleton said denial of education may, in some circumstances, form part of a claim of persecution or a well-founded fear of persecution. The assessment, he said, must examine the facts in the country of origin, including whether exclusion occurred, its extent and the authorities’ reasons. A lack of school attendance by a particular group does not, by itself, establish state-sponsored or tolerated exclusion. He also distinguished a complete denial of education from a failure to access a particular school, and said the outcome depends on the specific facts and the authorities’ conduct.
He noted that discrimination in education can become sufficiently serious to amount to persecution, while genuine efforts by a state to address deep-seated prejudice may affect that assessment. The Refugee Appeals Tribunal’s task, he said, includes examining reliable and current country-of-origin information.
On the court’s role, Justice Charleton said judicial review did not give the High Court authority to decide the refugee claim in place of the Tribunal. A tribunal finding may be quashed if it flies in the face of fundamental reason and common sense, exceeds jurisdiction, ignores relevant factors or relies on irrelevant ones. In that event, the matter is remitted for the tribunal to reconsider under its own jurisdiction; the High Court’s analysis does not dictate the factual outcome.
Justice Charleton also referred to the boy’s 10 years of upbringing in Ireland, saying the implications were for the Minister. His opinion does not state the final disposition in the appeal; it records his agreement with the order proposed in Justice Clarke’s principal judgment. The source excerpt provides no details of that order.