The Supreme Court has restored a Refugee Appeals Tribunal decision refusing refugee status to an Ashkali child born in Ireland, allowing the State’s appeal against a High Court order that had quashed the tribunal’s decision.
The Court also dismissed the child’s cross-appeal. It held that the tribunal’s conclusion was within the range of decisions legally open to it on the evidence and materials before it. The Court was reviewing the lawfulness of the tribunal’s decision, not deciding the refugee application afresh.
The child’s application was based on claims that he would face discrimination in Serbia because of his Ashkali ethnicity. The case included concerns about access to basic education, healthcare, personal documents and social services, as well as allegations of violence and intimidation. The tribunal accepted that he would likely face discrimination, and that he might not receive a full or basic education, but concluded that the evidence did not establish persecution under the Refugee Act 1996.
The High Court had quashed that decision, finding that the likely denial of even basic education could amount to persecution. The Supreme Court found that the High Court had gone too far in its assessment. It said the tribunal’s findings did not establish that the State would deny the child basic education, or that the educational disadvantage described was predominantly caused or condoned by state action or inaction. The tribunal’s view of the evidence was sustainable under judicial review principles.
The Court said refugee decision-makers must assess the cumulative effect of discrimination across rights and consider its severity, persistence, the State’s role and the likely impact on the individual applicant. A sufficiently serious and persistent denial of important rights may amount to persecution, including in some circumstances a denial of education. But the tribunal had applied the correct general approach and considered the alleged discrimination both individually and cumulatively.
The Court also considered whether the tribunal had confused Serbia with Kosovo when referring to information about returns of Ashkali people. It found that any confusion had not been shown to affect the outcome: the materials before the tribunal did not establish that the UNHCR had recommended against returning Ashkali children to Serbia.
The judgment said the process had been under way for more than eight years and that the child, then aged ten, had been born in Ireland and knew no other country. While stressing that the Court’s task was limited to whether the tribunal’s decision was legally sustainable, it expressed a strong view that authorities considering the child’s future should give high regard to humanitarian concerns.