Supreme Court allows asylum appeal where High Court failed to properly review Tribunal's decision on integration.

An Chúirt Uachtarach

The Supreme Court

Denham CJ

O’Donnell J

Clarke J

Laffoy J

Charleton J

Supreme Court appeal number: 2012/50

[2016] IESC 000

High Court record number: 2009/955JR

[2011] IEHC 431

Between

ED (a minor suing through his father and next friend GD)

Applicant/Respondent

- and -

The Minister for Justice, Equality and Law Reform

Respondent/Appellant

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 [1988] 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 [1990] 1 IR 499 and see in particular the remarks of Murphy J at [1986] 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 [2015] 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:

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.

9. Laffoy J was part of that unanimous decision, stating at paragraph 8:

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:

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.

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.

` 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.