The immigration authorities should have "high regard" for humanitarian concerns when deciding the future of a 10-year-old boy born here to Serbian parents – after he lost a legal challenge to a refusal of refugee status, the Supreme Court has said.
The boy "knows no other country", something that can hardly be said to be his fault, following eight years of going through the asylum process and legal challenges, Mr Justice Frank Clarke said on behalf of the five-judge court.
He was giving its unanimous judgment allowing an appeal by the Minister for Justice and the Refugee Appeals Tribunal (RAT) against a High Court decision quashing the refusal of refugee status to the boy.
Mr Justice Clarke said the appeal was on an important point of law centring on whether an alleged failure to give the boy refugee status meant he would be denied his right to a basic education.
The boy’s parents are members of the Ashkali, a Roma ethnic group.
It was argued that, because he is Ashkali, the risk of him not getting a basic education if returned to Serbia would amount to persecution under the 1996 Refugee Act.
It was also claimed his problems would be significantly exacerbated by psychiatric difficulties from which his mother was said to be suffering and the probable lack of treatment for her under the conditions in Serbia.
In refusing refugee status, the tribunal did not accept there would be an absolute denial of education and considered this involved an “element of speculation”, Mr Justice Clarke said.
In November 2011, Mr Justice Gerard Hogan, then a High Court judge and now a member of the Court of Appeal, found the available information about Serbia "painted a picture of pervasive discrimination against Roma children (including Ashkali) with regard to access to even basic education".
Mr Justice Clarke found the High Court erred in quashing as not sustainable the tribunal’s rejection of the claims of educational discrimination.
The Supreme Court was required only to consider whether the tribunal decision was made within the range open to it on the materials before it, the judge said.
The decision was within that range, he held.
Because this boy has spent his whole life in Ireland, this leads to "very real humanitarian considerations which, speaking for myself, I would very much hope that the relevant authorities take into account", the judge stressed.
In a separate concurring judgment, Mr Justice Peter Charleton said it would be hard to conceive the child has not integrated into the fabric of our society. "Could he not say: 'Rugadh agus tógadh in Éireann mé?'", the judge said.
While the implications of that fact were for the Minister to consider, the comments of Mr Justice Clarke are “amply justified”, Mr Justice Charleton said.
It may be possible to hope, with new streamlined asylum procedures coming from new legislation, the entire court process relating to it will be speeded up and simplified, he added.