Court/Judicial body: High Court of Ireland
Date: November 10, 2011 CRC
Provisions: Article 28: Education Other International ProvisionsEuropean Convention on Human Rights ( Article 2 of the First Protocol) European Union Charter of Fundamental Rights ( Article 14) Geneva Convention
Domestic provisions: Constitution ( Article 42) Qualification Directive ( Article 9) Refugee Act 1996 (Section 2)
Background: A child of Ashkali/Roma origin was born in Ireland to Serbian parents. An application for asylum was made on his behalf several years later, but ultimately refused. The child appealed the denial of refugee status, claiming that he would be persecuted were he returned to Serbia on the grounds of his status as an ethnic minority. In particular, the child argued that he would face discrimination so severe that it would impair his right to receive even a basic education.
Issue and resolution: Education; discrimination; asylum. The Court agreed that the child would likely be denied his fundamental right to an education if returned to Serbia, and that this end him to remain in Ireland as a refugee.
Court reasoning: The Court looked to evidence from reliable international sources, including the Committee on the Rights of the Child, to determine the extent of the discrimination faced by chidren of Ashkali/Roma origin in Serbia. Noting the pervasive nature of this discrimination, particularly with regard to education, and its severe negative effects on children, the Court found that the boy’s right to education as guaranteed under the Irish Constitution, the Convention on the Rights of the Child and other international instruments would be violated if he were returned to Serbia. Denying a child the opportunity to pursue a basic education is a severe violation of human rights because it results in that child being excluded from any meaningful participation in society.
Excerpt citing CRC and other relevant human rights 4. The country of origin information attests to the fact the Ashkali and Roma communities in Serbia are subject to widespread discrimination, as evidenced by a climate of indifference, hostility and intolerance among the general public. Thus, in its report on Serbia in June 2008, the UN Committee on the Rights of the Child concluded (at para. 75) that it remained: “deeply concerned at the negative attitudes and prejudices of the general public and at the overall situation of children with minorities and, in particular, Roma children. The Committee is concerned at the effect this has with regard to discrimination and disparity, poverty and the denial of their equal access to health, education, housing, employment, non-enrolment in schools, cases of early marriage and decent standard of living. The Committee is also concerned at the very low levels of participation in early childhood development programmes and day care and the deprivation of education.” … 23. The right to education (and especially the right to basic education) is widely regarded as fundamental. This is reflected in Article 42 of the Constitution, Article 2 of the First Protocol of the ECHR and Article 14 of the EU Charter of Fundamental Rights. It is also reflected in international agreements, such as Article 28 of the UN Convention on the Rights of the Child.
CRIN comments: CRIN believes this decision is consistent with the CRC. Children have a fundamental right to receive an education under Article 28 of the Convention, and, as here, this right must be considered when determining whether to grant a child refugee status.
Citation:  IEHC 431
Link to full judgement: http://www.bailii.org/ie/cases/IEHC/2011/H431.html