THE SUPREME COURT
[Appeal No: 50/2012]
E.D. (a minor suing by his father and next friend, G.D.) (Education)
The Refugee Appeals Tribunal, the Minister for Justice, Equality & Law Reform
Judgment of Mr. Justice Clarke delivered the 21st December, 2016.
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  3 IR 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:-
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.
“(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?”
1.5 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  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  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:-
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:-
“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.”
7.11 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.
“I know that UNHCR in 2006 advised that they were no longer advising against returning members of the Roma Ashkali community…”
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:-
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.
“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”.
7.15 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.
9.1 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.
Judgment of Mr Justice Peter Charleton, delivered Wednesday, 21st December 2016
1. In concurring with the order proposed in the principal judgment of Clarke J, some observations are offered on two points central to this appeal. It might be preferable that, instead of unmemorable random collisions of letters within the alphabet, the relevant judgments could sensibly be referred to as “ED (Ahskali)”.
2. Firstly, while the obligation of the State to offer refuge to those fleeing persecution may seem very far from any consideration of rights to education, in reality there can be a connection, though only in extreme circumstances. It might be remembered that in the mid-20th century hegemony established by Nazi tyranny over the highly cultured populations of Poland, Russia and Czechoslovakia, this criminal enterprise of enslavement involved the removal of the leadership class, eradicating people of independent mind, and the deprivation of all but the most basic education to those who were planned to silently obey their overlords. This involved the shutting of some of the most distinguished universities in Europe. Education is the means whereby people are instructed in the proper use of their national languages, are taught the legends which attach to their nation and are trained in the vast repository of human culture and technique whereby complex societies prosper. It is inevitable in all advanced economies that there will be competition for education. That, while discrimination of a kind, is measuring out who may benefit from a course and is an inevitable consequence of economic development and the various talents which people are gifted with. It is also unavoidable that over generations family professions will emerge whereby those exposed at home to talk of construction or business or medicine or politics will naturally gravitate towards particular avocations and with a background which will give them a head start. Some children will grow up in homes with books and some will not. Money is a factor. Hence, access to education will tend towards unevenness even within societies best regulated towards offering equality of opportunity.
3. Many feel that basic education is something that states should try to offer to all children. The fact that not all groups within social strata, for cultural or family reasons, will take it up in proportionate numbers is not of itself to be regarded indicative of a government-sponsored, or deliberately tolerated, policy of exclusion. Lack of take-up of primary education may arise from the rapid development of society from a pastoral to an urban one or from the traditional educational practices of nomadic groups. While governmental efforts of encouragement are worthwhile, it might be worse were those to become tyrannical as these might easily be presented as a form of persecution. What matters in the highly unusual circumstances where deprivation of education is cited as a principal or important ground for actual persecution, or as a well-founded fear thereof, is the action of country of origin authorities. It can be alleged in asylum cases that the country of origin has built into its education systems rules which structurally remove particular cultural groups. The questions for the assessor of fact must revolve around fact finding as to its occurrence, the extent of any apparent exclusion and the real reasons why some groups do not take up schooling in comparison to others. There may be many reasons and, further, these may not amount to a level of discrimination amounting to persecution. While language discrimination may often be cited as a method of exclusion, for instance with Sinti or Roma groups speaking Romani or Vlach or some other minority language, national cohesion may be a reasonable aim in requiring all citizens to have a working knowledge one or more national languages. General deprivation of education to particular groups through administrative schemes may amount to discrimination, such as making it impossible in practice for girls to enrol in school. Schemes for inclusion should be positively regarded if these are seen as part of a genuine governmental effort. Education helps social cohesion and inclusion. With education to a standard aspired to by the general population, ethnic or religious minorities can rise into leadership or administrative positions and may be enabled to meet fundamental requirements for admission to police or armed forces. Without that key for access, depending on the circumstances, and usually coupled with other forms of exclusion, discrimination may continue over generations. Alternatively, it may be that particular groups within a country have strong cultural preferences against assimilation with the majority or against education in general. It is part of the task of the Refugee Appeals Tribunal to search out the true situation through access to reliable and current country of origin information.
4. The position is well put in Hathaway and Foster - The Law of Refugee Status (2nd edition, Cambridge, 2014) where the authors note at p. 275 that deprivation of education tends to be an indicator of a deeper problem:
Claims based on the denial of educational opportunities are often part of a claim to fear cumulative harm since in addition to the inherent loss involved in the deprivation of education, a lack of educational opportunities for children “often reinforces their subjection to various other human rights violations.” For example, there is a “direct correlation between … primary school enrolment levels for girls and major reductions in child marriages.” Yet a violation of the right to primary education is in and of itself sufficient to constitute serious harm. There is, for example, no need to show that economic opportunities will be reduced as the result of the denial of education.
5. The authors caution, however, that what is involved should be shown to be “a complete denial of education” as opposed to a failure to access a particular school. Discrimination in education may become so serious as to be persecution, or to reasonably give rise to a well founded fear thereof. Whether that is so depends on an analysis of the particular facts and of the attitude of the authorities in the country of origin. Another caution is necessary here. Serbia is a member state of the Council of Europe, as is Ireland. All countries have problems. But, equally, by submitting to fundamental standards which establish a floor of rights for all citizens, with the possibility of analysis as to structural problems by an independent non-national body, it should be recognised that already a serious commitment is made to the eradication of discrimination. Historical difficulties do not disappear by simply entering into human rights identification and enforcement structures, but where a country shows good will and real effort in the eradication of deep-seated prejudice, the claim of the involvement of state actors amounting to persecution through discrimination becomes much less tenable.
6. The second comment is that the principal judgment of Clarke J is not to be understood as arrogating to the High Court a power to decide that all of the evidence heard before the Refugee Appeals Tribunal amounts either to a situation where no case has been made out as a matter of fact that an applicant is a refugee or that he or she is not. Different structures in England and Wales, through the establishment of refugee or employment tribunals at the equivalent to the High Court are so enabled. That has not happened here. Sometimes, as Clarke J averts in his judgment, it may seem that there is only one answer to a question considered by an administrative tribunal. In The State (Creedon) v Criminal Injuries Compensation Tribunal  IR 51, what was at issue was a horrible accident. The Tribunal was authorised to grant compensation to those who died attempting to save human life. In that case, the deceased’s family sought compensation under the scheme when he had attempted to bodily hold back his van in which his baby son was seated after its brakes did not engage. This case represents the farthest that a court may go, in that instance by describing a finding of fact by the Tribunal that the deceased did not die while attempting to save a person’s life as flying in the face of fundamental reason and common sense.
7. The courts have their function under the Constitution and the “full and original jurisdiction in and power to determine all matters and questions of law or fact” set out in Article 34.3.1º does not extend to granting planning permissions or inspecting taxes. These functions have been granted, subject to judicial review, to administrative bodies within the executive branch of government; Deighan v Hearn  1 IR 499 and see in particular the remarks of Murphy J at  IR 603 at 615. Similarly, here, there is an administrative body, the Refugee Appeals Tribunal, empowered with the necessary jurisdiction and actually hearing and considering live witnesses. The Tribunal’s decisions may be quashed by the High Court if these fly in the face of fundamental reason and common sense or jurisdiction is exceeded. That can be ignoring relevant factors or taking irrelevant factors into account as well as assuming a power outside a statutory limit. The remedy is then remission to that body for reconsideration. There must be an actual reconsideration and not the shedding of jurisdiction in favour of whatever remarks may have been made as part of the analysis by the High Court.
8. In Barry and Others v Minister for Agriculture and Food  IESC 63, a group of veterinary surgeons had asserted before the Employment Appeals Tribunal that their contract with the State for inspecting animals in slaughter houses amounted not to one for services but an actual employment. The matter was decided against them by the Tribunal but that was subject of a judicial review before Edwards J in the High Court. There, the decision was overturned but with the addition of much analysis of the indicia of employment as differentiated from the hiring of services for reward. On remission to the Tribunal, this judgment was mistakenly understood as a direction from the High Court to make a finding that the vets were employed. The Tribunal so decided, making it clear that this finding resulted from the supposed requirement of the High Court to so decide. As MacMenamin J encapsulated the principle at paragraphs 2 to 4 of his judgment:
9. Laffoy J was part of that unanimous decision, stating at paragraph 8:
The Employment Appeals Tribunal erred in concluding that an earlier judgment, delivered in this case by Edwards J. in the High Court, directed the Tribunal to find, as a matter of fact and law, that the appellants were self-employed, and had never been employed by the Minister. In proceeding on this misconception, the Tribunal acted outside the scope of its statutory power … It was for the Employment Appeals Tribunal itself to determine, on the facts, whether or not an employment relationship existed between the parties. It follows, therefore, that the Tribunal erred in concluding that Edward J’s High Court ruling required it to make a finding in a particular way. In so concluding, it fell into error. … Thus, the matter should be remitted to the Employment Appeals Tribunal to be determined in accordance with its jurisdiction.
It is absolutely clear from the foregoing outline that the Tribunal misunderstood the effect of the declarations embodied in the first High Court order. Although very specific, in my view, those declarations did not amount to a direction by the High Court to the Tribunal as to the decision it should make when the matter was remitted to it. I agree with the view … that it would not have been open to the High Court on the first appeal to give such a direction. Indeed, on this appeal, there was consensus between counsel on both sides on that point.
10. Lastly, a word might be said in supporting the views of Clarke J that it would be hard to conceive that a child’s 10 year upbringing in Ireland has not integrated this boy into the fabric of our society. Could he not say: “Rugadh agus tógadh in Éireann me”? The implications of that fact are for the Minister, of course, but the comments in the principal judgment are amply justified.
12. Certainly, this country was, in the past, taken aback by the scale of applications for refugee status which experience shows was in part based on the former wording of Article 9 of the Constitution that it was “the entitlement and birthright of every person in the island of Ireland … to be part of the Irish nation.” Article 9.2.1° now provides that:
13. With the change in our laws by referendum through the 27th amendment to the Constitution in 2004 and the economic turmoil of banking irresponsibility which became manifest in 2008, numbers of applicants have been affected. Possibly, part of the delays which characterise the asylum application system is due to the piecemeal adjustment to procedures which had meant that those applying for refugee status could not, and were not required to, apply for subsidiary protection at the same time. Hence, there were several hearings and multiple possibilities for judicial review applications, the volume of which overwhelmed court resources. Judges were no doubt anxious to search for genuine applicants and a complex web of case law built up. Both phenomena fed into each other and contributed to the kind of delay that this case exemplifies. This process of the review of asylum decisions by the High Court is still one of judicial review. The form of orders has not been shown by the relevant precedents to be important in this area, while jurisdiction in terms of the analysis of fact amounting to unreasonableness and reasons for decisions as to conclusions have come to the fore.
Notwithstanding any other provision of this Constitution, a person born in the island of Ireland, which includes its islands and seas, who does not have, at the time of the birth of that person, at least one parent who is an Irish citizen or entitled to be an Irish citizen is not entitled to Irish citizenship or nationality, unless provided for by law.
` 14. It may be possible to hope that, with streamlined administrative procedures arising from new legislation in the future the application of judicial review principles to a one application process may also simplify and speed up the court process.