Ireland - K.K. (a minor) v. Refugee Appeal Tribunal & Anor. [2015 No. 2013 87 JR]
| Country of Decision: | Ireland |
| Country of applicant: | Congo (DRC) |
| Court name: | High Court (Eagar J.) |
| Date of decision: | 17-09-2015 |
| Citation: | K.K. (a minor) V Refugee Appeal Tribunal & Anor. [2015] IEHC 581 |
Keywords:
| Keywords |
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Assessment of facts and circumstances
Description
The duty of the state to carry out an individual assessment of all relevant elements of the asylum application according to the provisions of Article 4 of the Qualification Directive, including considering past persecution and credibility; and the duty of the applicant to submit as soon as possible all statements and documentation necessary to substantiate the application. |
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Best interest of the child
Description
Legal principle required to be applied as a primary consideration when taking measures concerning minors in the asylum process. “Any determination or assessment of best interests must be based on the individual circumstances of each child and must consider the child’s family situation, the situation in their country of origin, their particular vulnerabilities, their safety and the risks they are exposed to and their protection needs, their level of integration in the host country, and their mental and physical health, education and socio-economic conditions. These considerations must be set within the context of the child’s gender, nationality as well as their ethnic, cultural and linguistic background. The determination of a separated child’s best interests must be a multi-disciplinary exercise involving relevant actors and undertaken by specialists and experts who work with children." |
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Country of origin information
Description
"Information used by the Member States authorities to analyse the socio-political situation in countries of origin of applicants for international protection (and, where necessary, in countries through which they have transited) in the assessment, carried out on an individual basis, of an application for international protection.” It includes all relevant facts as they relate to the country of origin at the time of taking a decision on the application, obtained from various sources, including the laws and regulations of the country of origin and the manner in which they are applied, regulations of the country of origin, plus general public sources, such as reports from (inter)national organisations, governmental and non-governmental organisations, media, bi-lateral contacts in countries of origin, embassy reports, etc. This information is also used inter alia for taking decisions on other migration issues, e.g. on return, as well as by researchers. One of the stated aims of the European Asylum Support Office (EASO) is to progressively bring all activities related to practical cooperation on asylum under its roof, to include the collection of Country of Origin Information and a common approach to its use. |
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Credibility assessment
Description
Assessment made in adjudicating an application for a visa, or other immigration status, in order to determine whether the information presented by the applicant is consistent and credible. |
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Individual assessment
Description
The carrying out of an assessment on an individual and personal basis. In relation to applications for international protection, per Article 4(3) of the Qualification Directive, this includes taking into account: (a) all relevant facts as they relate to the country of origin at the time of taking a decision; (b) the relevant statements and documentation presented by the applicant; “(c) the individual position and personal circumstances of the applicant, including factors such as background, gender and age, so as to assess whether, on the basis of the applicant's personal circumstances, the acts to which the applicant has been or could be exposed would amount to persecution or serious harm; (d) whether the applicant's activities since leaving the country of origin were engaged in for the sole or main purpose of creating the necessary conditions for applying for international protection, so as to assess whether these activities will expose the applicant to persecution or serious harm if returned to that country; (e) whether the applicant could reasonably be expected to avail himself of the protection of another country where he could assert citizenship.” |
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Refugee Status
Description
The recognition by a Member State of a third-country national or stateless person as a refugee. |
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Membership of a particular social group
Description
One of the grounds of persecution specified in the refugee definition per Article 1A ofthe1951 Refugee Convention. According to the Qualification Directive, membership of a particular social group means members who share an innate characteristic, or a common background that cannot be changed, or share a characteristic or belief that is so fundamental to identity or conscience that a person should not be forced to renounce it, and that group has a distinct identity in the relevant country, because it is perceived as being different by the surrounding society. Depending on the circumstances in the country of origin, a particular social group might include a group based on a common characteristic of sexual orientation. Sexual orientation cannot be understood to include acts considered to be criminal in accordance with national law of the Member States: Gender related aspects might be considered, without by themselves alone creating a presumption for the applicability of this concept. |
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Child Specific Considerations
Description
Application of a child-sensitive process and assessment of protection status, taking into account persecution of a child-specific nature and the specific protection needs of children. “When assessing refugee claims of unaccompanied or separated children, States shall take into account the development of, and formative relationship between, international human rights and refugee law, including positions developed by UNHCR in exercising its supervisory functions under the 1951 Refugee Convention. In particular, the refugee definition in that Convention must be interpreted in an age and gender-sensitive manner, taking into account the particular motives for, and forms and manifestations of, persecution experienced by children. Persecution of kin; under-age recruitment; trafficking of children for prostitution; and sexual exploitation or subjection to female genital mutilation, are some of the child-specific forms and manifestations of persecution which may justify the granting of refugee status if such acts are related to one of the 1951 Refugee Convention grounds. States should, therefore, give utmost attention to such child-specific forms and manifestations of persecution as well as gender-based violence in national refugee status-determination procedures.” See also the best interests principle. |
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Obligation to give reasons
Description
Obligation on a decision-maker to give reasons for an administrative decision including applications for international protection and decisions taken under the Dublin II Regulation |
Headnote:
This case examined the denial of a minor’s application for asylum which was decided primarily on the failure of his mother’s application. The Refugee Appeals Tribunal did not consider Country of Origin Information (COI) from the child’s perspective. Furthermore, clear reasons were not given for the refusal decision. The High Court granted leave and quashed the Refugee Appeals Tribunals decision to deny refugee status to the child. The Court also held that the best interests of the child should be a primary consideration of the Tribunal both with regard to the procedure and substantive consideration of appeal.
Facts:
The Applicant is 15 months old and is a national of the Democratic Republic of Congo (DRC). He was born in Ireland on 3 November 2011. The Applicant’s mother previously claimed for asylum based on a fear of persecution for her political opinion. This claim failed, due to, predominantly, a negative credibility assessment.
The applicant’s mother was diagnosed with HIV/AIDS on arriving in Ireland in 2007. Both the Applicant and his mother are receiving treatment to minimise the risk of transmission of the condition to the Applicant. It will not be clear whether this has been successful until the Applicant is about five years old.
It is argued that the Respondent failed to comply with Regulation 5 of the EC (Eligibility for Protection) Regulations, 2006 as “all relevant facts as they relate to the country of origin” were not considered. There is vast evidence that treatment of HIV/AIDS in DRC is exceptionally difficult to access. Thus it is extremely likely that, if returned to DRC, the Applicant’s mother would die. This would leave the applicant without guardianship and living on the street. There is also significant COI to the effect that street children are at risk of exploitation and identification as child witches.
The Applicant’s mother’s claim for asylum failed based on a negative credibility assessment. Two additional grounds for asylum were brought to the appeal which she failed to mention in her interview. She claimed that her son (the applicant) and she would face persecution based on their ethnicity as members of the Luba tribe and; based on their status as failed asylum seekers. The Respondent dismissed these additional elements as not being well-founded based on her failure to mention them in her initial application.
Furthermore, it is argued that the Applicant’s claim for asylum was not given independent consideration but instead was conflated with that of his mother.
Decision & reasoning:
The main questions put to the High Court were:
- Did the Respondent fail to assess the Applicant’s risk individually relying solely on the rejection of the Applicant’s mother’s claim?
- Was the Respondent’s finding that the Applicant is not at risk of persecution as a failed asylum seeker unreasonable and lacking a clearly deductible underlying rationale?
The High Court initially reiterated that the hearing in front of the Refugee Appeal Tribunal is a de novo hearing. Therefore it was held that the Respondent failed in its duty to deal with the two additional elements introduced by the Applicant’s mother at the time with respect to her son’s claim.
The High Court also condemned the lack of information provided by the Respondent as to the grounding of the decision. It was stated that the Respondent failed to deal substantively with the Applicant’s claims apart from claiming that “the Applicant’s mother reconstructed her evidence after the interview” (Para. 26).
Further, it appears from the Tribunal’s decision that information which the Respondent should not have had access to, was known and actively utilised by the Respondent in the final decision on the Applicant’s application. This information was in relation to a decision by the Minister for Justice to deny the Applicant’s mother leave to remain on humanitarian grounds. The High Court held that the use of this information jeopardised the independence of the Tribunal and was “absolutely inappropriate”(Para. 30).
The COI was deemed not to have been appropriately considered in relation to claims made by the Applicant. It was held that a minor applicant is entitled to have his or her claims considered with the best interest of the child being the primary consideration. The High Court held that the Respondent failed to do this.
Outcome:
Application Granted and therefore the decision of the Refugee Appeal’s Tribunal is quashed. To be remitted back to the Refugee Appeals Tribunal to a different member.
Observations/comments:
An important outcome of this decision is that a risk of persecution in relation to a child, which is objectively identifiable and based on COI, must be considered with the child’s best interests as the primary consideration. Credibility of the parent of such a child is irrelevant. Thus, COI should be considered from the child’s perspective.
A further significant conclusion of this decision is the importance of information provided by the Tribunal in relation to its findings. Insufficient information can affect an applicant’s Constitutional right to access the Court. Insufficient information on reasons for a decision denies the applicant the opportunity to assess the lawfulness of such a decision and therefore to assess whether a judicial review of the decision would be a viable option. Furthermore as an independent Tribunal it was inappropriate for it to rely on information sourced from a decision from the Minister of Justice concerning the applicant’s own mother’s application for leave to remain.
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| Ireland - Refugee Act 1996 |
Cited Cases:
| Cited Cases |
| CJEU - C-175/11, H.I.D., B.A. v Refugee Applications Commissioner, Refugee Appeals Tribunal, Minister for Justice, Equality and Law Reform, Ireland, Attorney General |
Other sources:
Regulation 5 of the EC (Eligibility for Protection) Regulations, 2006