An Chúirt Uachtarach

The Supreme Court

Between

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.

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.

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.

` 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.