The High Court has certified three questions of law for appeal in judicial review cases brought by two anonymised applicants who said they feared persecution in China for having more than one child without official permission.
Mr Justice Barr ruled on 22 January 2015 that the questions raised points of exceptional public importance and that conflicting international authorities left genuine uncertainty. The certificate allows the respondents to seek an appeal; the ruling does not decide whether the applicants qualify as refugees.
The application followed earlier judgments in which the court quashed Refugee Appeals Tribunal decisions concerning each applicant and sent the claims back to the Tribunal for reconsideration. In those judgments, the court held it was arguable that parents of more than one child born in China without official permission could constitute a particular social group, and that they could face persecution including forced sterilisation, fines, loss of employment or discrimination. Those were the basis of the earlier decisions, not findings in this certificate ruling that the applicants had established refugee status.
The respondents asked the High Court to certify questions about whether people who breached China’s one-child policy could form a “particular social group” under Irish refugee law and European protection rules; whether being a parent of more than one child born without official permission was a shared characteristic; and whether breaching a generally applicable law could amount to an unchangeable background or a characteristic fundamental to identity or conscience.
The applicants opposed certification. They argued that Irish law could provide more protection than the European Union minimum standards, that the relevant principles were established, and that the case concerned their application to particular facts rather than an unsettled legal question.
Barr J accepted the respondents’ case that international common-law authorities conflicted and that resolving the uncertainty would benefit future cases. He also found that the legal point was central to the earlier judgments. He therefore certified all three questions as points of law of exceptional public importance.
The ruling records the respondents’ alternative request for a preliminary reference to the Court of Justice of the European Union if certification were refused. As the court granted the certificate, it did not make that reference in this ruling.