Ireland - High Court, 10 November 2011, E.D. v Refugee Appeals Tribunal, [2011] IEHC 431

Facts:

The applicant was a minor born in Serbia to parents of Ashkali ethnicity, regarded as Roma in Serbia. Central to the applicant’s claim for asylum was the contention that he was likely to face pervasive discrimination such as would impair his right to an education. His application was refused on the basis that such discrimination would not rise to the level required to establish persecution.

Decision & reasoning:

The Court (Hogan J) held that the Tribunal had erred in law in its construction of what constitutes persecution. Given the factual findings made on the basis of country of origin information, the Tribunal ought to have found that there was a real risk of persecution. The High Court stated:

“The available country of origin information uniformly painted a picture of pervasive discrimination against Roma children with regard to access to 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 on sufferance and in a climate of barely concealed contempt and hostility.

In ... The Law of Refugee Status (1991) Prof. Hathaway defines persecution as the “sustained 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.” The right to education may be regarded as coming within the third category in Hathaway’s characterisation.

... The right to education must be regarded as a most significant human right, since the denial of the right means that “many other human rights are likely to be beyond reach”. If [the applicant] is denied the right to even a basic education he will effectively be excluded from any meaningful participation in Serbian society ... While the present case certainly falls outside the classic type 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 ...”

Outcome:

The Tribunal decision was quashed.

Observations/comments:

The judgment is the first occasion on which the Irish courts have considered whether discrimination in access to education may amount to persecution. The High Court found that, given the fundamental importance of the right to education and given that a denial of access to education may impinge upon the enjoyment of other rights, such discrimination can amount to persecution within the meaning of Art 9 of the Qualification Directive.

Other sources:

Hathaway, The Law of Refugee Status (1991), p.112