Ireland: Denial of education to #Roma child violates #human rights
Denial of education to Roma child violates human rights
Mon, Jan 30, 2012
D [a minor]-v- Refugee Appeals Tribunal Anor
Neutral Citation: IEHC 431. Judgment was given on November 10th, 2011 by Mr Justice Gerard Hogan
The likely denial of access to basic primary education of a Roma child by Serbia violates basic human rights and amounts to persecution under the Refugee Act 1996, so the decision to deport a Roma child to Serbia should be quashed.
The applicant was born in Ireland in 2006, though he is not an Irish citizen. His parents were born in Serbia and are regarded as Roma there. An application for refugee status was made on behalf of the child and was refused in August 2009.
It was claimed on his behalf he would suffer persecution if returned to Serbia in that he would not receive a basic education. The Refugee Appeals Tribunal member found that, while discrimination in access to education was likely to arise, this was not sufficient to satisfy the requirement of persecution under the Refugee Act.
Country of origin information from the UN Committee on the Rights of the Child, the European Commission and the US state department all did endorse the claim that Roma in general and children, especially girls, in particular, were subject to widespread discrimination. Few Roma children attend school in Serbia and when they do they are often sent to special schools for children with learning difficulties.
Mr Justice Hogan acknowledged that not all infringements of basic civil liberties or discrimination amounted to persecution. The concept of what constituted persecution did not lend itself to precise analysis, he said.
He pointed out that two previous judgments of the court had found that discrimination in other parts of former Yugoslavia, in one case against two ethnic Serbs and in another involving a Croat-Serb couple, did not amount to persecution.
Before analysing the tribunal member’s conclusions, the court needed to examine the level of discrimination he was likely to encounter if returned to Serbia, he said. The available country of origin information painted a picture of “pervasive discrimination against Roma children”.
Mr Justice Hogan pointed out that almost 60 years ago the US Supreme Court famously declared, in Brown -v- Board of Education of Topeka that segregated schooling violated the equality principle in the US constitution. While this did not mean it was persecution, it illustrated the point that segregated schooling was a hallmark of a society where the disadvantaged group would be subjected to pervasive discrimination and exclusion which, in some circumstances, could amount to persecution.
In this case the statistics showed that the applicant was likely not to receive even a basic education. The question arose as to whether official indifference to this amounted to persecution.
Mr Justice Hogan quoted from Prof James Hathaway’s book, The Law of Refugee Status , where persecution is defined as “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 was widely regarded as fundamental 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, as well as the UN Convention on the Rights of the Child. “If master D is denied the right to even a basic education he will effectively be excluded from any meaningful participation in Serbian society,” Mr Justice Hogan said. It was therefore more serious than the discrimination suffered in the two other cases referred to.
“While the present case certainly falls outside the classic types of persecution envisaged by the Geneva convention … it nonetheless seems impossible to avoid the conclusion that the denial of even basic education amounts to a severe violation of basic human rights [and] amounts to persecution within the meaning of S 2 of the Refugee Act 1996,” he said.
The full judgment is on www.courts.ie.
Michael Lynn BL, instructed by John Gerard Cullen, Carrick-on-Shannon, for the applicant; Cindy Carroll BL, instructed by the Chief State Solicitor, for the State.