High Court quashes Refugee Appeal Tribunal decision denying asylum based on risk of denied basic education in Serbia.

Neutral Citation Number: [2011] IEHC 431

THE HIGH COURT

2009 955 JR

BETWEEN /

E. D. (A MINOR SUING

THROUGH HIS FATHER AND NEXT FRIEND G. D.)

APPLICANT

AND

REFUGEE APPEAL TRIBUNAL AND

MINISTER FOR JUSTICE AND EQUALITY

RESPONDENTS

JUDGMENT of Mr. Justice Gerard Hogan delivered on the 10th day of November, 2011

1. The applicant, Master D, was born in the State in 2006, although he is not an Irish citizen. His parents were born in the Preshevo

municipality of Serbia and are of Ashkali ethnicity, albeit that they are regarded as Roma in the parents’ country of origin. Subject to

questions of registration, it would appear that the applicant is Serb. An application was made for asylum on Master D.’s behalf, but

this was ultimately refused by the Refugee Appeal Tribunal in a decision delivered on 17th August, 2009. It is this decision which is

challenged in these proceedings pursuant to leave which was granted by Dunne J. in a judgment delivered by her on 31st May, 2011.

2. Central to the applicant’s claim that he will suffer persecution if returned to Serbia is the contention that he is likely to face

pervasive discrimination such as will impair his right to receive a basic education. The Tribunal member found he will:

“in all likelihood face discrimination if sent to his country of nationality. I am not persuaded on the evidence

submitted and available however that such discrimination will rise to the level of persecution. The fact that the

applicant may not receive a full or indeed a basic education is not sufficient in my view to lead to a conclusion that

the requirement that there be persecution is satisfied.”

3. The essential question presented here is whether such a finding of fact ought properly to have compelled the Tribunal member to

conclude that there was a well founded fear that Master M. would suffer persecution if he were returned to Serbia.

4. The country of origin information attests to the fact the Ashkali and Roma communities in Serbia are subject to widespread

discrimination, as evidenced by a climate of indifference, hostility and intolerance among the general public. Thus, in its report on

Serbia in June 2008, the UN Committee on the Rights of the Child concluded (at para. 75) that it remained:

“deeply concerned at the negative attitudes and prejudices of the general public and at the overall situation of

children with minorities and, in particular, Roma children. The Committee is concerned at the effect this has with

regard to discrimination and disparity, poverty and the denial of their equal access to health, education, housing,

employment, non-enrolment in schools, cases of early marriage and decent standard of living. The Committee is also

concerned at the very low levels of participation in early childhood development programmes and day care and the

deprivation of education.”

5. The views expressed by the European Commission in a report entitled “Serbia 2008 Progress Report” are in much the same vein. It

found that:-

“There have been some improvements in the number of Roma children attending secondary schools due to the

affirmative measures taken by Ministry of Education and the Ministry of Human and Minority Rights. However, the

generally low school attendance by Roma children remains a serious problem, in particular among Roma girls.

In practice the Roma population continues to face extremely difficult living conditions, exclusion and discrimination.

One of the major persistent problems facing the Roma community is access to personal documents. This has had

grave consequences for the ability of large sections of the Roma population to gain access to basic social and

economic rights. A significant proportion of the Roma population still lives in extreme poverty and illegal settlements.

The Roma population, especially women, are subject to widespread discrimination when it comes to access in the

labour market. There are a disproportionately high number of Roma children in special schools for children with

learning difficulties. A climate of intolerance towards the Roma population continues to prevail in Serbia.”

6. A 2008 US State Department report for Serbia found that:-

“Romani education remained a problem. Many Romani children, especially girls, did not attend primary school;

reasons included family objections, lack of identity documents, judgments by school administrators that they were

unqualified and societal prejudice. According to an Open Society Institute report presented in October, only two per

cent of Romani children were in preschool, while fewer than 40% attended primary school. In some cases, children

who attended school sat in separate Roma-only classrooms or in a group at the back of regular classes. Few

teachers were trained in the Romani language and many Romani children did not learn to speak Serbian. Some

Romani children were mistakenly placed in schools for children with emotional disabilities because the Romani

language and cultural norms made it difficult for them to succeed on standardized tests in Serbian. In October the

Ministry of Education announced the introduction of assistant teaching positions for Roma in pre- and primary

schools.”

7. Of course, as the Tribunal member correctly observed, not all infringements of even basic civil liberties or even acts of

discrimination will amount to persecution within the meaning of s. 2 of the Refugee Act 1996 (“the 1996 Act”). As we shall presently

see, 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. The question of what constitutes “persecution”

for this purpose is in the first instance of a matter of law which the Tribunal must correctly define if it is to remain within jurisdiction,

see, e.g., by analogy Anisminic Ltd. v. Foreign Compensation Commission [1969] 2 A.C. 147, Shannon Regional Fisheries Board v. An

Bord Pleanála [1994] 3 I.R. 449, Lambert v. An tArd Chláraitheoir [1995] 2 I.R. 372, Killeen v. Director of Public Prosecutions [1998] 1

I.L.R.M. 1.

8. Assuming, therefore, that the Tribunal has correctly defined the term as a matter of law, then its application of that legal principle

to the facts of the case can only be disturbed where the conclusions are either unreasonable or vitiated by a manifest error of fact:

see generally the judgment of Finlay Geoghegan J. in AMT v. Refugee Appeals Tribunal [2004] IEHC 219, [2004] 2 I.R. 607 and the

subsequent case-law and Daly, “Judicial Review of Factual Error in Ireland” (2008) 30 Dublin University Law Journal 187.

9. The concept of what constitutes persecution does not lend itself to precise analysis and as Ryan J. noted in V. v. Refugee Appeal

Tribunal [2011] IEHC 262, at paragraph 51 of the UNHCR Handbook it is observed that:-

“There is no universally accepted definition of ‘persecution’, and various attempts to formulate such a definition

have met with little success.”

10. In V., Ryan J. set out and applied paragraphs 53, 54 and 55 of that handbook:

“53. In addition, an applicant may have been subjected to various measures not in themselves amounting to

persecution (e.g. discrimination in different forms), in some cases combined with other adverse factors (e.g. general

atmosphere of insecurity in the country of origin). In such situations, the various elements involved may, if taken

together, produce an effect on the mind of the applicant that can reasonably justify a claim to well-founded fear of

persecution on ‘cumulative grounds’. Needless to say, it is not possible to lay down a general rule as to what

cumulative reasons can give rise to a valid claim to refugee status. This will necessarily depend on all the

circumstances, including the particular geographical, historical and ethnological context.

54. Differences in the treatment of various groups do indeed exist to a greater or lesser extent in many societies.

Persons who receive less favourable treatment as a result of such differences are not necessarily victims of

persecution. It is only in certain circumstances that discrimination will amount to persecution. This would be so if

measures of discrimination lead to consequences of a substantially prejudicial nature for the person concerned, e.g.

serious restrictions on his right to earn his livelihood, his right to practise his religion, or his access to normally

available educational facilities.

55. Where measures of discrimination are, in themselves, not of a serious character, they may nevertheless give

rise to a reasonable fear of persecution if they produce, in the mind of the person concerned, a feeling of

apprehension and insecurity as regards his future existence. Whether or not such measures of discrimination in

themselves amount to persecution must be determined in the light of all the circumstances. A claim to fear of

persecution will of course be stronger where a person has been the victim of a number of discriminatory measures of

this type and where there is thus a cumulative element involved.”

11. Ryan J. next referred to Article 9 of the Qualification Directive which provides:-

“9. (1) Acts of persecution for the purposes of section 2 of the 1996 Act must:

(a) be sufficiently serious by their nature or repetition as to constitute a severe violation of basic

human rights, in particular the rights from which derogation cannot be made under Article 15(2) of the

European Convention for the Protection of Human Rights and Fundamental Freedoms; or

(b) be an accumulation of various measures, including violations of human rights which is sufficiently

severe as to affect an individual in a similar manner as mentioned in subparagraph (a).

(2) Acts of persecution as qualified in paragraph (1) can, inter alia, take the form of—

(a) acts of physical or mental violence, including acts of sexual violence;

(b) legal, administrative, police, and/or judicial measures which are in themselves discriminatory or which

are implemented in a discriminatory manner;

(c) prosecution or punishment, which is disproportionate or discriminatory;

(d) denial of judicial redress resulting in a disproportionate or discriminatory punishment;

(e) prosecution or punishment for refusal to perform military service in a conflict, where performing

military service would include crimes or acts falling under the exclusion clauses as set out in section

2(c) of the 1996 Act;

(f) acts of a gender-specific or child-specific nature.”

12. The decision of Ryan J. in V. and that of Cooke J. in MST v. Refugee Appeal Tribunal [2009] IEHC 529 are illuminating, not least

because both cases have as their background contemporary events in the former Yugoslavia, but also because they illustrate how

sporadic events of discrimination and ill-treatment can fall short of discrimination for this purpose. In MST the issue was whether the

treatment of a mother and her daughter, two ethnic Serbs, in Croatia amounted to a form of persecution. The evidence was that

their house had been attacked in an ethnically motivated incident and the child had suffered bullying and taunting while at school.

13. Cooke J. nevertheless rejected the argument that this amounted to persecution:-

“Having regard to the case law as to the essential nature of “inhuman or degrading treatment” for this purpose, the

Court is satisfied that this conclusion, as made on that limited basis by the Minister could not be upset as being

unsound or unlawful. While the attacks on the house and window breaking, the expressions of racial hatred, the

bullying of J. in school and the attack upon her which broke her nose, are all undoubtedly frightening, stressful,

painful and ugly, it could not, in the Court’s judgment, be said that they are such as amount to inhuman or

degrading treatment on the basis of their essential character, duration or level of severity.”

14. The decision of Ryan J. in V. is in much the same vein. Here the applicants were a husband and wife whose applications for

refugee status had been rejected by the Refugee Appeal Tribunal. He was an ethnic Serb and she was a Croat. He contended that he

had suffered discrimination in Croatia in, for example, he had been forced to sell his property at less than prevailing market prices. He

was also less likely to secure public sector employment, although it was not apparent that his qualifications were such that he would

have been in a position to apply for such employment. The couple had been subjected to isolated verbal taunting, but the country of

origin information did not suggest that couples in mixed marriages were liable to the threat of violence in Croatia. While the Tribunal

member accepted that the applicant had suffered “considerable hardship” in the past and while it was further accepted that there

was “open discrimination” against ethnic Serbs in Croatia, she could not conclude that:-

“such discrimination that might be visited upon the applicants if returned to Croatia would be such as to rise to the

level of persecution.”

15. It is perhaps not surprising that Ryan J. upheld this finding of the Tribunal member. She had carefully analysed the concept of

discrimination and had defined it correctly. The Tribunal member had then undertaken a reasoned assessment based on the evidence

and Ryan J. found that it was open to her to make such findings.

16. What, then, is the situation in the present case? Having set out the country of origin information and discussed the question of

persecution, the Tribunal member concluded:-

“Insofar as there is discrimination against the grouping to which the applicant belongs, I cannot conclude that it is

in every case of a serious nature or degree. In this case, there is no history to rely upon, thus I am left simply to

rely on the objective accounts of what the current position is in the country and from that to deduce what might

await the applicant if he is to live in this country. The applicant is still a child and not yet of school going age. 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. I conclude that, whether the elements are taken singly or regarded cumulatively, the possible

discrimination that this applicant might face does not amount to the denial of human dignity in any key way. The

standard of a sustained or systemic denial of core human rights is simply not met.”

17. Before analysing the Tribunal member’s conclusions, one must first examine the level of discrimination which Master D. is likely to

encounter if he is returned to Serbia. The available country of origin information uniformly painted a picture of pervasive discrimination

against Roma children (I am including the Ashkali for this purpose) with regard to access to even basic education. As the US State

Department report for 2008 found, fewer than 40% of Romani children attended primary school. Even in the case of those who

attended school, it is plain that they were allowed to do so only on sufferance and in a climate of barely concealed contempt and

hostility. A range of such reports attest to the fact that Roma children were often sent to the back of the class or educated what in

amounts to segregated classrooms. A disproportionate number of Roma children were transferred to special schools, designed for

children with special needs and which are quite unsuited for children who are not so intellectually or physically disadvantaged.

18. Almost 60 years ago the US Supreme Court famously declared in Brown v. Board of Education of Topeka 347 US 483 (1954) that

segregated schooling violated the equality principle contained in the 14th Amendment to the US Constitution. As Warren C.J. said:-

“Does segregation of children in public schools solely on the basis of race, even though the physical facilities and

other "tangible" factors may be equal, deprive the children of the minority group of equal educational opportunities?

We believe that it does... Segregation of white and colored children in public schools has a detrimental effect upon

the colored children. The impact is greater when it has the sanction of the law, for the policy of separating the

races is usually interpreted as denoting the inferiority of the negro group. A sense of inferiority affects the

motivation of a child to learn. Segregation with the sanction of law, therefore, has a tendency to [retard] the

educational and mental development of negro children and to deprive them of some of the benefits they would

receive in a racial[ly] integrated school system... We conclude that, in the field of public education, the doctrine of

"separate but equal" has no place. Separate educational facilities are inherently unequal. Therefore, we hold that

the plaintiffs and others similarly situated for whom the actions have been brought are, by reason of the

segregation complained of, deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment.”

19. Of course, it does not follow in the least that simply because a practice is held to be unconstitutional - even by a leading court

such as the US Supreme Court - that this could in itself necessarily be equated with persecution for the purposes of the Geneva

Convention. But Brown nonetheless illustrates a point which all can intuitively understand, namely, that segregated schooling is a

general hallmark of a society where the disadvantaged group will be subjected to pervasive discrimination and exclusion which, in

some circumstances, at least, can amount to persecution.

20. The present case goes further again, since, as we have already seen, the statistics suggest that he is likely not to obtain even a

basic education. The question then becomes whether official indifference to the entitlement of a member of a disadvantaged group to

secure even a basic education can amount to persecution in this sense. It seems curious that this issue does not hitherto appear to

have received judicial examination, whether in this jurisdiction or elsewhere. In her monograph, International Refugee Law and Socio-

Economic Rights (Cambridge, 2007), Foster refers to a decision of the Australian Refugee Review Tribunal in 1995 which found that

the potential exclusion from primary education of a young child from an unnamed country by reason of the fact that his mother had

full blown AIDS could amount to persecution:-

“The applicant's son is also a member of a social group, family members of HIV sufferers. There is a real chance that

he would be denied access to education, even at a primary level. There is also a real chance that he would face

social isolation, and worse, after the death of his mother from an AIDS related illness.

Discriminatory denial of access to primary education is such a denial of a fundamental human right that it amounts

to persecution.”

21. Useful as this decision undoubtedly is, the matter nevertheless requires to be examined as a matter of first principle. In his classic

textbook, The Law of Refugee Status (1991) Professor Hathaway defines persecution (at page 112) as the:

“sustained or systemic failure of state protection in relation to one of the core entitlements which has been

recognised by the international community. The types of harm to be protected against include the breach of any

right within the first category, a discrimination or non-emergency abrogation of a right within the second category,

or the failure to implement a right within the category which is either discriminatory or not grounded in the absolute

lack of resources.”

22. The right to education may be regarded as coming within the third category in Hathaway’s characterisation.

23. The right to education (and especially the right to basic education) is widely regarded as fundamental. This is reflected in Article

42 of the Constitution, Article 2 of the First Protocol of the ECHR and Article 14 of the EU Charter of Fundamental Rights. It is also

reflected in international agreements, such as Article 28 of the UN Convention on the Rights of the Child.

24. As Glendenning, Education and the Law (Dublin, 1999) observed (at 251), the right to education must be regarded as a most

significant human right, since the denial of that right means that “many other human rights are likely to be beyond reach”. Similar

views may be found in O’Mahony, Education Rights in Irish Law (Dublin, 2006) at 18-25). If Master D. is denied the right to even a

basic education he will effectively be excluded from any meaningful participation in Serbian society and, echoing the words of Warren

C.J. in Brown, he will carry the brand of inferiority and stigma with him for the rest of his life. In that respect, it is far more serious

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. If, moreover, Master D. is denied that right it will not be by reason of a lack of resources - such as might be the case

in extremely poor countries in sub-Saharan Africa - but rather by reason of the official indifference, intolerance and hostility of which

we have already spoken.

25. While the present case certainly falls outside the classic types of persecution envisaged by the Geneva Convention involving

violence and threats of violence, it nonetheless seems impossible to avoid the conclusion that the denial of even basic education

amounts to a severe violation of basic human rights (to adapt the language of Article 9(1) of the Qualifications Directive). In that

respect, therefore, the finding that the denial of basic education in such circumstances amounts to persecution within the meaning of

the s. 2 of the Refugee Act 1996 (“the 1996 Act”).

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.

Conclusions

27. In conclusion, therefore, I have concluded that, having regard to the country of origin information, the Tribunal member erred in

law in her construction of what constitutes persecution. In other words, since she found - and, in view of the relevant country of

origin information, could only have found - that there was a real risk that the applicant would not get a basic education if he were

returned to Serbia, she was bound to find that this amounted to persecution within the meaning of s. 2 of the 1996 Act.

28. In these circumstances, I will accordingly quash the decision of the Tribunal of 19th August, 2009.