Supreme Court allows State appeal, holding educational disadvantage alone does not constitute persecution under Refugee Act 1996.

THE SUPREME COURT

[Appeal No: 50/2012]

Denham C.J.

O’Donnell J.

Clarke J.

Laffoy J.

Charleton J.

Between/

E.D. (a minor suing by his father and next friend, G.D.) (Education)

Applicant/Respondent

and

The Refugee Appeals Tribunal, the Minister for Justice, Equality & Law Reform

Respondents/Appellants

Judgment of Mr. Justice Clarke delivered the 21st December, 2016.

1. Introduction

1.1 The circumstances, if any, in which it may be possible to establish the grounds for refugee status arising out of an allegation

relating to a failure to provide basic education lies at the heart of this appeal. An application for refugee status was made on behalf

of the applicant/respondent (“the applicant”) and, having been refused by the Refugee Applications Commissioner (“the R.A.C.”), was

the subject of an appeal decision by the first named appellant/respondent (“the R.A.T.”) given on the 17th August, 2009. The R.A.T.

dismissed the appeal against the failure of the R.A.C. to recommend refugee status. The dismissal of that appeal by the R.A.T. was

the subject of judicial review proceedings in which leave was granted by the High Court on the 31st May, 2011 with a judgment of

that Court quashing the decision of the R.A.T. being delivered on the 10th November, 2011 (ED v. The Refugee Appeals Tribunal &

anor [2011] 3 I.R. 736).

1.2 However, the High Court certified that the matter involved a point of law of exceptional public importance and that it was

desirable in the public interest that an appeal should be taken to this Court. Such a certificate was, of course, necessary, at the

relevant time, in order that such an appeal should be pursued although the precise position in that regard may now be somewhat

different in the light of the consequences of the adoption of the 33rd Amendment to the Constitution and the establishment

thereafter of the Court of Appeal.

1.3 Be that as it may the grounds on which an appeal to this Court under the then regime were certified were as follows:-

“(a) Whether discrimination against the group to which a child belongs giving rise to a risk that the child would not get a

basic education if returned to his country of origin must be found to amount to persecution within the meaning of

Section 2 of the Refugee Act, 1996?

(b) Whether the High Court on an application for judicial review can substitute its own assessment of whether the

contended for infringements of basic civil liberties amounted to “persecution” within the meaning of Section 2 of the

1996 Act for that of the Tribunal Member?

(c) Whether the potential denial of a basic education is capable of constituting its sufficiently severe violation of basic

human rights so as to amount in law to persecution?”

1.4 Thereafter the respondents/appellants (collectively “the State”) filed a notice of appeal on the 7th February, 2012 and a cross

appeal was filed on behalf of the applicant on the 10th February, 2012.

1.5 The cross appeal derives from a contention that there were further points raised on behalf of the applicant in the proceedings

before the High Court which the trial judge did not find it necessary to determine. Those points related to an allegation that the

relevant tribunal member relied on country of origin information from a different country and also did not deal with other aspects of

the case for refugee status made (that is allegations concerning discrimination beyond educational) together with a subsidiary

question as to precisely what the Court should do if, in all the circumstances, it was considered appropriate to remit the matter back

to the R.A.T.

1.6 In order to understand the issues which arise with more precision it is necessary to set out the procedural history in a little more

detail.

2. Procedural History

2.1 In the original application for refugee status made on his behalf it was asserted that the applicant would experience severe

problems if returned to Serbia on the basis of his Ashkali ethnicity. Thus the case sought to be made was that he had a well-founded

fear of persecution on the grounds of race.

2.2 Various allegations were made concerning the policies said to be operated by the Serbian authorities towards the Ashkali people.

Furthermore, it was said that, in the applicant's particular case, his difficulties in the event that he were to be returned to Serbia

would be significantly exacerbated by what was said to be psychiatric difficulties from which his mother was suffering. On that basis it

was argued that the ordinary support and protection which might be expected at least to alleviate his difficulties in Serbia would not

be available. It was also said that the conditions in Serbia were such that it was improbable that any treatment would be made

available to his mother. The position in which he would, in those circumstances, find himself was said to breach his rights guaranteed

under the Constitution.

2.3 Finally, emphasis was placed on the position of the applicant as a minor and the rights thereby said to arise under a variety of

international instruments. In that context it was asserted that Serbia was guilty of continuing breaches of its obligations under such

instruments including, for example, the Universal Declaration of Human Rights and the Convention on the Prevention and Punishment

of the Crime of Genocide. As noted earlier the R.A.C. did not recommend that refugee status be granted to the applicant and an

appeal was pursued to the R.A.T.

2.4 The R.A.T. affirmed the recommendation of the R.A.C. to the effect that the applicant should not be declared a refugee. Although

it was accepted that the applicant would in all likelihood face discrimination if returned to Serbia, the R.A.T. was not persuaded on

the evidence that such discrimination would rise to the level of persecution. The fact that the applicant might not receive a full or

even basic education was held to be insufficient to conclude that the statutory persecution requirement was met.

2.5 In its decision, the R.A.T. undertook an analysis of discrimination in the context of conduct which may or may not constitute

“persecution” for the purposes of the statutory threshold. It was noted that the UNHCR Handbook on Procedures and Criteria for

Determining Refugee Status suggests that discrimination per se is insufficient to establish a claim for refugee status. However, regard

was also had to the leading text in the area of refugee law, The Law of Refugee Status (Hathaway, Cambridge University Press, 2nd

Ed, 2014) and the suggestion therein that refugee law ought to concern itself with actions which deny human dignity in any key way.

That text suggests that the sustained or systemic denial of core human rights is the appropriate standard for determining

persecution.

2.6 The R.A.T. acknowledged that the right to education is proclaimed by the Universal Declaration of Human Rights, 1948 and the

International Covenant on Economic, Social and Cultural Rights, 1966. However it was noted that it is not incorporated in the

International Covenant on Civil and Political Rights, 1966. The “right” to education was therefore held to be a social or second

generation right and was noted to be ranked third in the four-tier hierarchy of rights discussed by Professor Hathaway in The Law of

Refugee Status. The R.A.T. did not accept from the evidence adduced that there would be an absolute denial of education in respect

of the applicant. The R.A.T. considered that such a finding would involve an element of speculation which would not be permitted in

the refugee determination process.

2.7 As the applicant had never lived in Serbia, the R.A.T. held that it was left to rely on objective accounts of the contemporary

position in Serbia and deduce therefrom what might await the applicant if he were to be returned to reside there.

2.8 At the time of the R.A.T. decision, the applicant had not yet reached school attendance age. While it was accepted that the

situation was far from ideal in Serbia, it was noted that initiatives had been put in place to deal with some of the problems. There is

mention of the fact that the UNHCR had ceased recommending that the Ashkali ethnic group not be returned to their original country.

This is an aspect of the determination to which it will be necessary to return in due course.

2.9 The R.A.T. concluded that, regardless of whether or not the elements are taken singularly or regarded cumulatively, the possible

discrimination that the applicant might face on return did not amount to the denial of human dignity in any material way. The standard

of sustained or systemic denial of core human rights was, in the view of the R.A.T., simply not met.

2.10 As already noted these proceedings involved an attempt to quash that determination of the R.A.T. The case made to the High

Court was that the R.A.T. erred in law by misinterpreting the concept of persecution under s.2 of the Refugee Act, 1996 (“the 1996

Act”) and in failing to recognise that discrimination amounts to persecution if it “leads to consequences of a substantially prejudicial

nature for the person concerned, e.g. serious restrictions on access to normally available education facilities” and in further holding

that “the possible discrimination that (the applicant) might face does not amount to the denial of human dignity in any key way”.

2.11 The R.A.T. member was also said to have failed to have any, or any proper, regard to all relevant submissions made on behalf of

the applicant. In particular, the R.A.T. member was said to have failed to assess and determine the submission that the applicant’s

parents’ mental health, and lack of access to adequate health care in Serbia because of the discrimination against Ashkali, would lead

to consequences of such severity as to constitute persecution of the applicant. Further, the R.A.T. was said to have failed to

address the likelihood of physical attack and intimidation being inflicted on the applicant because of his Ashkali ethnicity.

2.12 Finally, the grounds on which leave to seek judicial review were granted included an allegation that the tribunal member had

made a material error of fact in suggesting that the UNHCR had stated that Ashkali could be returned to Serbia. It was said that the

relevant facts were that the UNHCR had come to such a view but in respect of Kosovo rather than Serbia.

2.13 The High Court found in favour of the applicant in a judgment of Hogan J. delivered on 10th November, 2011. It is, therefore,

next necessary to turn to the reasoning of the trial judge.

3. The High Court Judgment

3.1 The essential conclusion of the trial judge was that, having regard to the country of origin information, the R.A.T. erred in its view

as to what constitutes persecution in that there was, in the view of the trail judge, a sufficient level of educational discrimination

established to amount to persecution for the purposes of the statutory threshold in accordance with the 1996 Act.

3.2 Hogan J. concurred with the R.A.T. insofar as he accepted that not all infringements of basic civil liberties will amount to

persecution within the meaning of s.2 of the 1996 Act. He noted that to constitute persecution for this purpose, “absent an

immediate and serious threat to life and limb, something in the nature of systematic and pervasive infringements of a basic human

right is generally required”.

3.3 In that regard Hogan J. considered the judgment of Ryan J. in G.V v Refugee Appeals Tribunal [2011] IEHC 262, in which it was

observed that para. 51 of UNHCR Handbook says that: “There is no universally accepted definition of ‘persecution’, and various

attempts to formulate such a definition have been met with little success”. The trial judge proceeded to set out and apply paras. 53,

54 and 55 of the UNHCR Handbook which suggest that, while an individual may be subjected to discrimination, persecution does not

follow as a matter of rote. Persecution was said only to arise where discriminatory measures result in substantially prejudicial

consequences for the person concerned, for instance, serious restrictions on access to normally available educational facilities. The

situation was said to be determined in light of all the pertaining circumstances.

3.4 Hogan J. also considered the judgment of Cooke J. in MST v Refugee Appeals Tribunal [2009] IEHC 529, which suggests that

sporadic events of discrimination and ill-treatment can fall short of persecution for the purposes of the 1996 Act. In MST, Cooke J,

rejected the argument that instances such as attacks on houses, expressions of racial hatred and physical attacks, although

“stressful, painful and ugly” necessarily amount to inhuman or degrading treatment but that such is dependent on their “essential

character, duration or level of severity”.

3.5 Against those principles Hogan J. examined the level of discrimination which the applicant would be likely to encounter if returned

to Serbia. The trial judge came to the view that the available country of origin information painted a picture of pervasive

discrimination against Roma children (including Ashkali) with regard to access to even basic education. Hogan J. expressed the view

that the right to education (and especially the right to basic education) is widely regarded as fundamental, as reflected in Article 42

of the Constitution, Article 2 of the First Protocol of the European Convention on Human Rights and Article 14 of the EU Charter of

Fundamental Rights. It is further reflected in international instruments, such as Article 28 of the UN Convention on the Rights of the

Child. Hogan J. noted the observations in Glendenning on Education and the Law (Dublin, 1999 at p. 251), that the right to education

must be regarded as the most significant human right, since the denial of that right means that “many other human rights are likely to

be beyond reach”.

3.6 On that basis the trial judge concluded that, if the applicant was to be denied the right to even a basic education, he would

effectively be excluded from any meaningful participation in Serbian society and, echoing the words of Warren C.J. in the United

States Supreme Court in Brown v Board of Education of Topeka 347 UD 483 (1954), “he will carry the brand of inferiority and stigma

with him for the rest of his life”. In that respect Hogan J. considered that this case involved much more than the isolated taunting

and bullying which was at issue in MST or the hostile atmosphere which the ethnic adult Serb encountered in Croatia in V.

3.7 Although acknowledging that the applicant’s case fell outside the classic types of persecution envisaged by the Geneva

Convention involving violence and threats of violence, it was nonetheless, in the trial judge’s view, impossible to avoid the conclusion

that the denial of even basic education amounts to a severe violation of basic human rights. Therefore it was held that the denial of

basic education in such circumstances amounted to persecution within the meaning of section 2 of the 1996 Act.

3.8 It is against that background that it is necessary to briefly consider the evidence which was before the R.A.T. and which was

considered by the High Court.

4. The Evidence

4.1 The “Concluding Observations on the Republic of Serbia” Report dated 20th June, 2008, of the United Nations Committee on the

Rights of the Child expressed grave concern at the position of Roma children in Serbia and at the Serbian authorities’ failure to comply

with the provisions of the UN Convention on the Rights of the Child. The Committee also expressed concern that certain groups of

children, including Roma children, children of returnees, those without birth certificates and those who belong to minorities, face de

facto discrimination, with regard to education and healthcare. The Committee also expressed concern at the high infant mortality rate

amongst the Roma. It was also noted that the Serbian state achieved close to universal birth registration in most areas but there was

concern at gaps and disparities amongst the rural population, in particular among the Roma and internally displaced persons. It noted

that children were often not registered due to lack of identification documents of parents, ultimately giving rise to a possibility of

denial of access to basic services.

4.2 It was noted that poverty among the Roma in particular was four to five times higher than amongst the general population, that

Roma were deprived of social services, for reasons which included discriminatory practices. The Committee was concerned that poor

living conditions limited the children’s enjoyment of their rights in the familial, education, societal and cultural arenas. There was

concern over the effect this had with regard to discrimination and disparity, poverty and denial of their equal access to health,

education, housing, employment, non-enrolment in schools, and concerns at the very low levels of participation in early childhood

programmes.

4.3 In ‘Concluding Observations on Serbia’ dated 19th January, 2009, the United Nations Committee Against Torture was mindful of

the heightened risk of violence against minorities, especially the Roma, in Serbia, because of political events, including the declaration

of independence by Kosovo. These findings were echoed by the European Commission in a “Serbia 2008 Progress Report” which stated

that the political situation had deteriorated in the period immediately following that declaration, resulting in a number of incidents

against the Albanian national minority. Although the report did note some improvements in the school attendance amongst Roma

children, due to affirmative measures taken by the Ministry of Education and the Ministry of Human and Minority Rights, however the

general trend of school attendance was said to have remained low, particularly amongst Roma girls. Further reference is made to the

problems facing the Roma community in accessing personal documents and the consequences that this has in respect of access to

basic social and economic rights.

4.4 The US State Department in a 2008 report referenced that almost 60% of Romani children live in non-hygienic settlements and

46% did not have a meal every day. A lack of a permanent address or documentation of parents’ identities resulted in Romani families

having difficulties in registering births. The report found that, although the educational system provided for nine years mandatory

schooling, ethnic prejudice, cultural norms and economic distress discouraged Roma children, in particular, from attending. In certain

cases, in which they did attend, they were mistakenly placed in schools for children with disabilities due, it would appear, to

differences in language.

4.5 Amnesty International in its report on Serbia in 2008 refers to cases of ethnically and religiously motivated attacks against,

amongst others, Romas. Reference was also made to a UN Convention against Torture report from 2006 which referred to the fact of

police violence against Roma in Serbia and discrimination in access to social service.

4.6 In summary the R.A.T. had been presented with evidence emanating from many intentional organisations, such as the European

Commission, the US State Department, Amnesty International and various committees of the UN. While these reports did acknowledge

the difficulties and discrimination faced by minorities in Serbia, particularly Roma, in access to education, this was by no means the

sole discriminatory ground advanced, A multitude of discriminatory grounds had been submitted, ranging from violent treatment at the

hands of police, the poverty and a low standard of living which pertained, difficulties in registering births and gaining access to

personal documents which had serious consequences in terms of access to basic social and economic rights.

4.7 Against that overall background it is next necessary to turn to the case made on behalf of the R.A.T. on this appeal.

5. The Appeal

5.1 It is important at the outset to record that the R.A.T., in their written submissions to this Court, accepted that “in certain

circumstances systematic discrimination carried out or conducted by State authorities and leading to a sustained denial of a

fundamental human right (even where the right in issue is a secondary social right, or a “third tier” right) may amount to

persecution.” It was also accepted that “Paragraph 54 of the UNHCR Handbook on Procedures and Criteria for Determining Refugee

Status acknowledges that, in certain circumstances, discrimination which results in a serious restriction on a person’s right to

access normally available education facilities may amount to persecution”.

5.2 Thus there was no real dispute, and I agree, that at the level of general principle it is possible that a sufficiently severe and

persistent denial, by virtue of discrimination, of important social rights may amount to persecution for the purposes of refugee status

especially where that discrimination is carried out by the State but also where it can be said to have been condoned by the State by

reason of lack of appropriate action.

5.3 While it is true that the trial judge came to his conclusions based on a denial of basic education, the general principle is

potentially more wide ranging and can relate to a suitably serious and persistent denial of a whole range of rights. Indeed it seems to

me to be clear that what is required is an overall assessment of the elements of discrimination asserted to determine whether they

cumulatively can be said to be sufficiently serious so as to amount to persecution. That assessment obviously involves a

consideration, amongst other things, of the range of rights in respect of which discrimination can be shown to apply, the importance

of those rights, the extent of the discrimination, its persistence, the extent to which the State concerned may be said to have itself

carried out the relevant discrimination, or the extent to which it might properly be determined that the State in question had

condoned or materially contributed to the discrimination concerned by inaction. The assessment clearly involves a consideration of

the cumulative effect of all such matters on persons of the relevant group.

5.4 The overall assessment must be one as to whether there is a well-founded fear on the part of the individual concerned that, by

reason of their ethnicity (or for other Convention reasons), the cumulative effect of state relevant discrimination in the manner just

identified leads to the conclusion that there will be a fundamental denial of human dignity. It should, of course, also be noted that it

is, as in all cases, necessary to have some regard to the likely position of the individual applicant. The sort of factors which I have

sought to identify do not necessarily apply evenly across the board to all individuals within a qualifying group such as those of Ashkali

ethnicity with which the Court is concerned in this case. There may be regional variations. There may be particular circumstances

which may impact severely on persons of a particular group generally but may not, for one reason or another, be likely to impact on

the individual concerned. For example, questions concerning documentation with potential knock on effects for access to basic

services may well impact much more severely against a particular group. However, a person within that group who happens to have,

or is likely to be able to secure, the relevant documentation may not be impacted at all. It is important to emphasise, therefore, that,

insofar as it may be possible or practicable, an attempt should be made, as part of the overall assessment, to determine the extent to

which any general level of deprivation of human dignity which might apply to the group in question may be likely in practice to apply

to the individual concerned should they be returned.

5.5 It is also important to note that any relevant assessment will necessarily be broad-based and need not involve a single area of

discrimination although it must also be recognised that discrimination in respect of a single area of rights may be sufficient if the rights

concerned are sufficiently important and the denial by discrimination sufficiently serious and persistent.

5.6 Given the acceptance on behalf of the R.A.T. of the general principle, this appeal in reality focused on much narrower questions.

In essence, the case made on behalf of the R.A.T. was that the member who had conducted the appeal hearing in this case had

applied the appropriate principle and had considered all of the material evidence before coming to what was said to be a sustainable

conclusion on that evidence. The essence of the case made by the R.A.T. on this appeal was, on that basis, twofold. First it was said

that the trial judge impermissibly substituted his own view on the country of origin information for that of the R.A.T. On that basis it

was argued that this Court should regard the factual conclusions of the R.A.T. as being sustainable and should assess whether, on

the basis of those factual conclusions, the R.A.T. member would have been required, as a matter of law, to make a finding as to a

sufficient risk of persecution.

5.7 The second issue derived from the first. It was said that, on the basis of the findings of the R.A.T., it was not appropriate to

conclude that persecution had been made out as a matter of law.

5.8 Hardly surprisingly counsel on behalf of the applicant suggested that the High Court was correct in reaching the conclusion which

it did. That leads to the cross-appeal. In substance it was argued on behalf of the applicant that, even if the trial judge was

incorrect in his approach to determining a well founded fear of persecution on the basis of educational discrimination, nonetheless the

judicial review application should have been allowed on the basis of some or all of the other grounds which had been urged on the

High Court but which that court did not find it necessary to determine in the light of the view which it took on the educational issue.

5.9 In that context it seems to me to be appropriate to start by considering whether the High Court was correct, for if the R.A.T.’s

appeal against the High Court decision cannot be allowed, then the cross-appeal issues do not arise.

6. Discussion – The R.A.T. Appeal

6.1 At the outset it must be recalled that the High Court was concerned with a judicial review of the decision of the R.A.T. rather

then an appeal from a decision of that body. It follows that the scope of review which is permissible is limited to identifying errors

which, in accordance with the relevant jurisprudence, are sufficient to render the administrative decision under review unlawful. There

are, in accordance with that jurisprudence, a range of bases on which the High Court, exercising its judicial review role, might come

to such a conclusion. In the particular context of this case two such bases are potentially relevant. First, it might be said that,

having regard to the findings of fact of the R.A.T., the conclusion that, as a matter of law, a claim based on fear of persecution had

not been made out, was not sustainable. In such a circumstance the High Court does not require to go behind the findings of fact of

the relevant administrative body but rather considers whether, accepting those findings of fact, the conclusion reached was legally

correct.

6.2 The second basis on which the High Court might come to a conclusion of unlawfulness could involve the Court considering that

some of the conclusions of fact of the relevant administrative body were not sustainable on the evidence before that body in

accordance with general judicial review principles. It is important to recall that the function of a court in judicial review proceedings of

this type is to determine whether the decision sought to be challenged was lawful. If the decision is found to have been lawful then

the challenge must, of course, be dismissed. If the decision is found to be unlawful, it will normally follow that the decision must be

quashed unless there are very particular circumstances which, in accordance with the established jurisprudence, would entitle the

Court not to take that course of action.

6.3 So far as the facts are concerned a court’s function is to determine whether the facts, as found by the administrative body, can

be sustained on judicial review principles. It is not normally the function of a court to make its own findings of fact except, for

example, where there are disputes on the facts as to what actually occurred in the process before the administrative body

concerned. On the other hand part of the reasoning of a court can, in an appropriate case, be to the effect that, on the materials

before the decision-maker, only one decision in respect of a particular fact would have been lawfully open to the decision-maker

concerned. In such a case any other view of the facts will necessarily be “irrational” in the sense in which that term has come to be

used in judicial review. Where such a conclusion might lead in the context of a particular judicial review challenge will, of course,

depend on all the circumstances of the case in question.

6.4 Before turning to the facts of this case it is also appropriate to record that, in the real world of litigation, it may frequently be the

case that the question before the High Court may involve a mixed question of first whether the facts found were sustainable and

second what conclusions were lawfully open to the decision maker on the basis of such facts as may ultimately be found to be

sustained.

6.5 Moving then to the circumstances of this case it is possible to view the judgment of the trial judge as involving in part a finding

that only one conclusion of fact was open to the decision maker in this case and in part a finding that, on the basis of the sole

conclusion which the High Court felt was open, a determination that the statutory threshold for persecution had been met was the

only lawful conclusion which could have been reached. The issue for this Court is as to whether the High Court was correct in

reaching those conclusions.

6.6 Given that the trial judge made his finding based solely on educational discrimination it is necessary to look first at what the

decision maker said in that regard.

6.7 I think it is fair to say that the R.A.T. member concerned makes a number of separate comments in relation to discrimination.

First, it is suggested that the applicant “will in all likelihood face discrimination” if returned to Serbia. Such a finding could hardly be

doubted in the light of the evidence to which reference has already been made.

6.8 The tribunal member went on to find that the applicant “may not receive a full or indeed a basic education”.

6.9 In addition the tribunal member concluded that the evidence was insufficient to establish that there would be “an absolute denial

of education” in respect of the applicant. It should also be noted that the tribunal member did make express reference in her

determination to the fact that amongst the factors which affected access to education amongst Roma children in Serbia were “ethnic

prejudice, cultural norms and economic distress”.

6.10 It might be said that there could have been some greater degree of clarity as to the precise findings of fact in relation to

educational access which the relevant tribunal member intended to make. However, in my view, taking the determination as a whole,

it is appropriate to read the determination as suggesting that there would undoubtedly be discrimination against the applicant, that in

the educational field that might lead to a reduction in the likelihood of his being able to access education even to the point where he

might not receive a basic education but that, importantly, the factors which might lead to such a situation were multi faceted and by

no means confined to state action or inaction.

6.11 On the basis of that analysis of the tribunal member’s decision it is necessary to come back to the two questions which I

indicated needed to be asked. The first is as to whether, on the basis that the facts are as the tribunal member determined them to

be, the threshold for fear of persecution contained in s.2 of the 1996 Act would have been established. The second is as to whether

that view of the facts was sustainable on the materials before the tribunal member.

6.12 In the course of their submissions the State argued that there did not appear to have ever been a case internationally where a

finding of refugee status was based solely on an allegation of educational disadvantage. However, it is also important to note the

concession made on behalf of the State to the effect that it was, at the level of principle, possible that there could be a sufficient

denial of the right to even a basic education such that same might amount to persecution. It is, however, in my view important to

attempt to distinguish between a denial of the entitlement to basic education, on the one hand, and circumstances which may

contribute to a person not actually obtaining a basic education, on the other. At one extreme the laws of a particular country might

directly prevent persons of a particular ethnicity from obtaining education. Like considerations might apply where similar prohibitions

were placed on any other group which would give rise to the group concerned being distinguished on the basis of convention reasons.

In such a case it might well be that a decision maker could conclude that the denial of rights was so fundamental as to meet the

threshold.

6.13 But at the other end of the spectrum it is necessary to acknowledge that access to education is rarely available on an entirely

equal basis even in relatively developed societies. The economically disadvantaged frequently obtain lower levels of education than

those who are better off. In some societies the practical experience of education differs for gender reasons. Other examples could be

given.

6.14 In order to assess whether the threshold for well-founded fear of persecution has been made out it is necessary not only to

consider the likelihood and degree of educational disadvantage but also to assess the extent to which that situation can either be

said to have been determined by the State itself or, at a minimum, has been actively condoned by state encouragement or inaction in

circumstances where the State could reasonably be expected to have intervened.

6.15 The findings of fact of the tribunal member in this case do not go so far as to suggest that the applicant would be denied, by

state action or inaction, the right to a basic education. There were certainly no materials before the decision maker which suggested

that there was any formal barrier to persons of the applicant’s ethnicity obtaining basic education. Rather the country of origin

information addressed various factors which undoubtedly contributed to a situation where children of the applicant’s ethnicity suffered

significant educational disadvantage. But at least some of the factors identified were not matters for which the State was directly

responsible. The tribunal member noted that cultural factors often played a role. Likewise general economic disadvantage was said to

play a part. Furthermore, it would appear from the country of origin information that language difficulties could loom significantly.

There would appear to be a situation where children of Roma ethnicity were often placed in schools where the medium through they

were taught was not one which they understood and where there was no significant facilitation of their access to education in such

circumstances. However, it was by no means clear on the materials before the R.A.T. that the applicant would necessarily have

suffered from that particular problem. The country of origin information also identified problems concerning the documentation of

persons of Roma ethnicity which sometimes precluded them from accessing social services to which they might otherwise be entitled

(including education). But it equally was not particularly clear as to the extent to which a person in the applicant’s precise

circumstances might suffer from that difficulty.

6.16 Having reviewed the determination of the R.A.T. as a whole it does not seem to me that, on a fair reading of the complete

document, the findings of fact are such that they disclose a level of direct or indirect state complicity in denial of basic education to

require that there be a consequential finding of a sufficient well-founded fear of persecution to meet the statutory threshold. In that

regard it is appropriate to note that the tribunal member did not assess the level of risk. In addition, the country of origin information

suggested that at least some remedial steps had in recent times been taken by the Serbian authorities to attempt to deal with the

situation.

6.17 That leads to the second question being as to whether the findings of fact of the tribunal member were themselves sustainable

on the materials before the R.A.T. Put another way, assuming that I have correctly interpreted the decision of the tribunal member as

involving a determination that, while there was some risk that the applicant would not receive even a basic education, that risk was

multi-factorial and could not be either exclusively or predominantly regarded as being due to state action or state condoning, can

that view of the facts be sustained.

6.18 It is also possible to look at this question in another way. The trial judge appeared to take the view that the country of origin

information before the R.A.T. required a determination on the facts to the effect that the applicant might be denied even a basic

education and, by inference, that state authorities were either directly or indirectly responsible in large measure for that situation. If I

have correctly interpreted the decision of the R.A.T. then it seems clear that the trial judge came to a somewhat different view on

the facts. It was, of course, open to the trial judge to consider whether the findings of fact of the tribunal member were sustainable

on the materials before her on the basis of the application of judicial review principles. But that was the limit of the extent to which

the trial judge could address the findings of fact.

6.19 It follows that it is necessary to decide whether the view of the R.A.T., which I have sought to analyse earlier, was within the

range of conclusions which would be open to a decision maker on the basis of the materials available. If that view was within the

appropriate range then it would not have been open to the trial judge to approach the matter on any basis other than that those

facts are correct.

6.20 In the light of the factors to which I have already drawn attention it does not seem to me that it can be said that findings of

fact of the R.A.T. which I have sought to characterise were unreasonable (in the judicial review sense of that term) in the light of the

materials before the R.A.T.

6.21 On that basis I am satisfied that the trial judge was incorrect to conclude either that the findings of fact of the tribunal member

were not sustainable or that the only conclusion open to the tribunal member on the materials before her were such that findings of

fact sufficient to determine that the statutory threshold had been met were the only findings open to the tribunal member. On that

basis it seems to me that the argument put forward on behalf of the R.A.T. on this appeal, to the effect that the trial judge was

incorrect in his conclusions, is well made.

6.22 However, it follows that it is then necessary to consider whether the issues raised on behalf of the applicant on his cross appeal,

which suggest that there were additional grounds which could have sustained the ultimate decision of the High Court, are made out.

I, therefore, turn to the cross appeal.

7. The Cross Appeal

7.1 One principal focus of the cross appeal centres on the fact that the trial judge did not assess whether the decision of the tribunal

member was sustainable on the basis of the full range of discrimination asserted. The reason why the trial judge took that view was,

of course, clear. Having concluded as he did on the question of educational discrimination it was unnecessary to go further. However,

in my view, the decision of the trial judge based solely on educational discrimination cannot be upheld. It follows that it is necessary

for this Court to assess whether the overall conclusion of the R.A.T. in relation to the wider range of discrimination contended for is

sustainable.

7.2 First it should be noted that the tribunal member makes clear in her determination that she did consider the elements of

discrimination on which reliance was placed both individually and cumulatively. For the reasons already analysed I am satisfied that it

was both appropriate and, indeed, necessary for the tribunal member to consider the cumulative effect of discrimination. It is

certainly possible to envisage a range of areas in which important rights are diminished by discrimination but where the level of

deprivation of rights and the State’s complicity in the deprivation concerned might not be sufficient, in the case of any individual

right, to warrant a finding of persecution but where, nonetheless, the cumulative denial or impairment of rights across a range of

important areas might meet the threshold.

7.3 It follows that the R.A.T. adopted the correct approach in not only assessing each area of alleged discrimination individually but

also in taking an overview at a cumulative level.

7.4 The question which then arises is as to whether it can be said that the view taken by the R.A.T. that, even cumulatively, the

likely discrimination which might be suffered by the applicant if returned to Serbia would not be sufficient to amount to persecution,

was sustainable. It should again be emphasised that it is not for this Court (as it was not for the High Court) to substitute its own

view of that assessment for that of the tribunal member. Rather it is for this Court to assess whether the conclusions of the tribunal

member were sustainable.

7.5 In that context I consider that it is appropriate for a court in analysing the approach of a decision maker whose decision may

involve important human rights to expect that the decision maker has scrutinised the materials in a particularly careful way which is

proportionate and appropriate to the importance of the issue under consideration. While, doubtless, it is reasonable to expect any

decision maker, charged with making a decision which can affect rights and obligations, to carry out their task in a careful manner

nonetheless there is an added obligation of care on decision makers who are charged with decisions which, if wrongly made, could

have very serious consequences indeed for the rights of any individuals affected.

7.6 In that context it seems to me to be appropriate to analyse whether the decision maker in this case exercised a sufficient level of

care in analysing the materials before her having regard to the fact that the return of the applicant to Serbia had the potential to

expose him to persecution if the analysis of the materials turned out to be incorrect.

7.7 Subject to one specific matter to which it will be necessary to return (being the suggestion that the tribunal member made an

error in confusing Kosovo with Serbia) I am not satisfied that there is any legitimate basis for determining that the overall conclusion

of the tribunal member cannot be sustained. I am satisfied that the tribunal member, in substance, did apply the correct test. I am

also satisfied that the tribunal member considered a wide range of information which undoubtedly established discrimination against

persons of Ashkali ethnicity in Serbia. But just as was the case in respect of potential educational discrimination a range of factors

appear to impact on that situation with not all of them being matters for which the State can be said to be either directly or indirectly

responsible. In addition, at least some remedial measures appeared to have been put in place by the time of the decision of the R.A.T.

It is not for the courts to make their own assessment of whether the cumulative effect of that discrimination meets the legal

threshold for persecution. Rather it is for the courts to determine whether the facts found by the R.A.T. were sustainable and

whether that view of the facts, if found sustainable, leads to a finding of the absence of a well founded fear of persecution is correct

in law. The possibility that a court might have come to a different conclusion on the same materials does not legitimately lead to the

quashing of the decision of the R.A.T. unless that decision either involved unsustainable findings of fact or an incorrect application of

the law to sustainable findings of fact.

7.8 Leaving aside for the moment the allegation of confusion between Serbia and Kosovo, I am not satisfied that the overall

conclusion of the R.A.T., to the effect that the country of origin information did not disclose a sufficient level of likely discrimination

against the applicant (for which Serbia was directly or indirectly responsible) so as to justify a finding of a well founded fear of

persecution, can be regarded as unsustainable. On that basis it is necessary to turn to the Kosovo issue.

7.9 In the course of his judgment the trial judge noted the following at para. 26:-

“Information sourced by the Tribunal member 26. Even though I am quashing her decision, it is appropriate to record

my sincere gratitude to the Tribunal member for the exceptional care which she took with this difficult case. The

Tribunal member went to the trouble of sourcing her own country of origin information regarding the treatment of

Roma, Ashkali and Egyptians in Kosovo. It is clear from this information that the EU has endeavoured to assist these

communities by assisting them with registration and the provision of additional teacher training. Nevertheless, as the

applicant’s solicitors noted in their reply, this material relates to Kosovo and not Serbia. While I appreciate that the

Preshevo municipality is right on the borders of Kosovo and the Republic of Macedonia, it is nonetheless in Serbia. In

these circumstances, I cannot see how this additional material is of direct relevance to the applicant’s case.”

7.10 It is of some importance to set out the facts relevant to this issue in detail. Following the oral hearing the tribunal member

embarked on her own pursuit of country of origin information in an email dated 2nd April, 2009 which was sent to certain international

organisations. In that email she raised questions about the situation in Kosovo for members of the Ashkali community and queried the

situation for an Ashkali family returning to Kosovo as to whether they could obtain documentation. She further queried how Ashkali

children faired in such circumstances and went on to state that:-

“I know that UNHCR in 2006 advised that they were no longer advising against returning members of the Roma Ashkali

community…”

7.11 In addition she questioned the impact of the declaration of independence of Kosovo which occurred in early 2008 and queried

whether it had a negative impact. A response to that email was obtained form a Laura Bislimi which attached a report of the European

Commission liaison office on “Empowerment of Roma Ashkali and Egyptian Communities in Kosovo” over the period form 1st April, 2008

to 30th September, 2009.

7.12 Subsequent correspondence ensued between the R.A.T. and the solicitor acting on behalf of the applicant. In the course of that

correspondence the applicant’s solicitor pointed out that the focus of the tribunal member’s information gathering was Kosovo while it

was emphasised that the applicant’s parents were from Serbia and not Kosovo.

7.13 When it came to the determination of the R.A.T. the following was said:-

“While the situation is far from ideal the fact remains that there are initiatives referred to above designed to address the

problem of registration and the UNHCR has ceased, some years ago, recommending that this ethnic grouping not be

returned”.

7.14 It is certainly open to the view that there may have been some confusion in the mind of the tribunal member between Kosovo

and Serbia. By the time the case came to be decided by the R.A.T. Kosovo had become independent. It is also clear that the

applicant’s parents came from an area which, while close to the border with Kosovo, was within Serbia. The issue which the tribunal

was required to consider was, therefore, whether there was a well founded fear of persecution should the applicant be returned to

Serbia and not Kosovo. It is difficult, on that basis, to see what particular relevance there might have been to information concerning

the position of Ashkali in Kosovo.

7.15 However, it is necessary to assess the materiality of any such confusion. It might be possible to envisage circumstances where

confusion of that type would be highly material. For example, if there was evidence or materials before the R.A.T. which suggested

that the UNHCR had, in the past, recommended against returning Ashkali children to Serbia and if, because of confusion between

Serbia and Kosovo, a wrong conclusion of fact had been reached to the effect that the UNHCR had altered their position in respect of

Serbia, then the situation might well be very different. However, there did not appear to be any evidence or materials before the

R.A.T. which clarified the position of the UNHCR on the return of Ashkali children to Serbia one way or the other. While there

undoubtedly were materials which established a significant level of discrimination none of those materials appeared to have gone so

far as to suggest that the UNHCR recommended against the return of Ashkali children.

7.16 Against that background it is not clear to me that the confusion in the mind of the member of R.A.T. concerning Serbia and

Kosovo could be said to be of a sufficient level of materiality to render her ultimate conclusions unsustainable. There were no

materials which suggested that the ultimate inference drawn, being that UNHCR did not or had not recommended against return in the

circumstances of this case, were incorrect. Rather the basis for coming to that conclusion may have resulted from confusion but, in

the absence of evidence or materials suggesting that the UNHCR actually recommended against the return of Ashkali children to

Serbia, the ultimate conclusion has not been shown to be incorrect. In those circumstances it does not seem to me that there is any

sufficient basis for quashing the determination of the R.A.T. At the end of the day the correct broad principle was applied and the

facts together with the application of that principle to the facts were determined within the range of what was permissible for the

R.A.T. member concerned on the evidence and materials before her.

8. A Final Observation

8.1 It is, unfortunately, necessary for this Court to face yet again a situation where, irrespective of the outcome of this refugee

process, a very difficult human situation arises. The process has been in train for over eight years. The applicant is now ten years of

age, was born in Ireland and knows no other country. It can hardly be said to be his fault that, at least in material part due to the

complexities of the system, he has spent his whole life up to the age of 10 in Ireland. That leads to very real humanitarian

considerations which, speaking for myself, I would very much hope that the relevant authorities take into account.

8.2 This Court must consider solely the legal issue as to whether the decision of the R.A.T. to the effect that the applicant did not

qualify for refugee status was legally sustainable. This Court is not even a court of appeal from the R.A.T. but rather is required only

to consider whether the decision of the R.A.T. was within the range of decisions which were legally open to that body on the

materials before it. For the reasons set out in this judgment I would conclude that the decision of the RAT should not be quashed.

However, at the level of common humanity, there is a very strong case indeed for suggesting that the authorities who have

jurisdiction to consider all matters concerning the applicant should have high regard to those humanitarian concerns before deciding

on any matter relating to his future.

9. Conclusions

9.1 For the reasons analysed in this judgment I am satisfied that the High Court was in error in concluding that, in the light of the

findings of fact of the RAT and the sustainability of those findings of fact, it was permissible to reach a conclusion that the

educational disadvantage established in this case was sufficient to require a determination that the threshold for persecution had

been met. In those circumstances I would allow the State’s appeal against the decision of the High Court.

9.2 I would also conclude that the applicant’s cross appeal must be dismissed on the basis that the overall conclusion of the R.A.T.

was within the range of conclusions which were open to the R.A.T. on the evidence and materials before it and that the R.A.T. took

an appropriate approach to assessing whether the threshold for persecution had been met on the basis of those findings.

9.3 I have, however, indicated a strong view that humanitarian considerations should play a significant role in any future

determination as to what is to happen in the case of the applicant.