The High Court has quashed a Refugee Appeal Tribunal decision refusing an asylum application made for a child born in Ireland, ruling that a real risk of being denied basic education in Serbia could amount to persecution under the Refugee Act 1996.
The judgment, delivered by Mr Justice Gerard Hogan on 10 November 2011, concerned a minor identified in the proceedings as E.D., suing through his father and next friend, G.D. The child was born in the State in 2006 and was not an Irish citizen. His parents were born in Serbia’s Preshevo municipality and were of Ashkali ethnicity; the judgment said they were regarded as Roma in their country of origin.
The Tribunal had accepted that the child would likely face discrimination if returned to Serbia, but concluded that the evidence did not establish persecution. It said the possibility that he might not receive a full or basic education was insufficient to meet that threshold. The Tribunal refused the asylum application in August 2009, and the child later obtained leave to bring judicial review proceedings.
Justice Hogan reviewed country information describing widespread discrimination against Roma children, including low school attendance, segregated classrooms and disproportionate placement in schools for children with learning difficulties. He said the evidence showed a real risk that the child would not obtain even a basic education if returned to Serbia.
The court distinguished that risk from isolated incidents of discrimination or hostility. It held that denial of basic education in circumstances involving official indifference, intolerance or hostility could constitute a severe violation of basic human rights and therefore persecution under section 2 of the Refugee Act 1996.
The judge also addressed country information the Tribunal member had sourced about Roma, Ashkali and Egyptian communities in Kosovo. He said that material concerned Kosovo, not Serbia, and could not be seen as directly relevant to the child’s case.
Justice Hogan concluded that the Tribunal had erred in law in its interpretation of persecution. He quashed the Tribunal’s decision. The judgment did not itself grant asylum; it set aside the refusal under review.