THE SUPREME COURT
JUDICIAL REVIEW
[S.C. No: 459/2004]
Denham J.
Geoghegan J.
Fennelly J.
Kearns J.
Finnegan J.
BETWEEN
A N AND L N, C N, U N, C N AND W N, MINORS SUING
BY THEIR MOTHER AND NEXT FRIEND A N
APPLICANTS/APPELLANTS
And
THE MINISTER FOR JUSTICE EQUALITY AND LAW REFORM AND COMMISSIONER OF AN GARDA SIOCHÁNA
RESPONDENTS
Judgment delivered the 18th day of October by Fennelly J.
1. The first-named applicant is the mother of the second to sixth named applicants and appellants. She is not herself an appellant, because her application for leave to apply for judicial review was dismissed in the High Court and she did not obtain the certificate required to entitle her to appeal. Accordingly, I will refer to the second to sixth named applicants and appellants simply as the appellants.
2. The proceedings relate to Deportation Orders made in respect of the appellants by the First Named Respondent (“the Minister”) on the 2nd August, 2002. The appellants obtained leave from the High Court (Finlay Geoghegan J) to seek judicial review of those decisions by way of certiorari. Peart J in a judgment dated 26th May 2004 dismissed the application of the appellants for judicial review. The learned High Court Judge certified pursuant to Section 5 (3)(a) of the Illegal Immigrants Trafficking Act, 2000 that his decision involved points of law of exceptional public importance and by order dated 28th July 2004 granted leave to appeal against his decision to the appellants. The terms of the certificate are set out in the judgment of Finnegan J.
3. There is a single legal point at the centre of the appeal. The deportation orders were explicitly made on the basis that each appellant was “a person in respect of whom a deportation order may be made” pursuant to the provisions of section 3(2) (f) of the Immigration Act, 1999. That provision relates to:
“a person whose application for asylum has been refused by the Minister.”
4. The High Court order of 5th November 2003 (Finlay Geoghegan J) granted leave to apply for judicial review on the following single ground:
“The Deportation Orders of 2nd August 2002 relating to the second to sixth named Applicants are invalid in that the second to sixth named Applicants were not on that date persons whose applications for asylum had been refused by the first named Respondent within the meaning of Section 3(2)(f) of the Immigration Act 1999.”
5. In her judgment on the leave application, Finlay Geoghegan J. noted that the sole basis justifying the making of the deportation orders was that the persons named were persons in respect of whom an asylum application had been refused.
6. The question is whether an application for asylum made by the appellants had been refused by the Minister. In simple terms, the first-named applicant applied for asylum; no separate applications were made for the children; the Minister had a policy of treating such an application as having been made by the family; none of the communications emanating from the Minister or the Refugee Appeals Tribunal, up to and including the refusal of the first-named applicant’s application refer to any application by the appellants. They were, however, given notice of the Minister’s intention to make deportation orders in respect of them.
7. A related issue, which was decisive in the view of the learned High Court judge, was the principle of family unification. This gives rise, in turn, to a question of whether that principle can be deployed against as distinct from in favour of family members.
The Facts
8. These issues can be considered only in the light of detailed consideration of the facts.
9. The appellants are Nigerian nationals. They arrived in Ireland on the 10th May, 1998, accompanied by their mother. They were then respectively aged 12, 8, 6 and four-year old twins.
10. On 11th May 1998, the day after her arrival in Ireland, the first named applicant applied for asylum. She completed the official form provided by the Minister, “ASY-1.” The file reference number, 69/1346/98B was written on this application. In the box for “Name” only that of the first named Applicant was given i.e. A.N. The names of the appellants were listed in the part of the form headed: “children.” Their place of birth was stated to be Nigeria and “Ireland” was given in answer to the question: “where is the child now?” In answer to the question, “why are you seeking asylum?” an account is given of events in Nigeria concerning her brother in the army. This mentions “the children” in connection with her move from Nigeria.
11. Mr Charles O’Connell, Assistant Principal Officer in the Department of Justice Equality and Law Reform deposed on affidavit that file reference numbers were assigned to each of the children named in the ASY 1 form signed by the mother in accordance with the “policy of treating the application for asylum of accompanied minors as being an application on behalf of the First Named Applicant and each of the accompanied minors.” Thus the appellants were assigned file reference numbers with the suffixes (c), (d), (e), (f) and (g) respectively, following the (b) assigned to their mother. He continued:
“I say and believe that this was a proper course for the [the Minister] to take, taking into account the diminished capacity of the [appellants] herein. I further say and believe that no objection was taken by the First Named Applicant or by any of the Applicants herein to this course of action, and that none of the Applicants has suffered any prejudice or detriment as a result of this course being taken.”
12. Mr O’Connell deposed further that the above course of action followed the guiding principle set out in Paragraph 213 of the UNHCR “Handbook on Procedures and Criteria for Determining Refugee Status,” which reads as follows:
“There is no special provision in the 1951 Convention regarding the refugee status of persons under age. The same definition of a refugee applies to all individuals, regardless of their age. When it is necessary to determine the refugee status of a minor, problems arise due to the difficulty of applying the criteria of “well-founded fear” in his case. If a minor is accompanied by one (or both) of his parents, or another family member on whom he is dependent, who requests refugee status, the minor’s own refugee status will be determined according to the principle of family unity”. (emphasis added).
13. Mr O’Connell said that, on 11th May 1998, details of each of the appellants were taken “in order to record their applications for asylum.” He exhibited these photographic records upon which was written the file reference number relating to each child. Mr O’Connell deposed that these steps showed that the Minister was treating the application of the mother as having been made on behalf of all the appellants. He does not, however, refer to any communication made by or on behalf of the Minister either to the first named applicant or to any of the appellants, indicating that the Minister was deeming applications to have been made by or on behalf of the appellants.
14. Mr O’Connell exhibited the questionnaire under the heading, “Application for Refugee Status”, which was completed by the First Named Applicant on 13th May 1998. That document bore only the file reference number of first named applicant. She was described as the “Applicant.” The Minister makes the point that there is no reference whatsoever to any specific fears that any of the appellants might have. No questionnaire was completed either by or on behalf of any of the children. The children were, of course, of tender years. But there is no evidence of any administrative act, other then the purely internal one of assigning separate file reference numbers, showing that the Minister was treating the appellants as having applied for asylum.
15. The next relevant step was the sending, on 11th March 1999, of a letter to the first named applicant, calling her for interview. The letter refers throughout to a single application. The file reference, both on the letter and on a detachable slip designed to confirm attendance, was that of the first named applicant alone. The letter includes the following: “Unfortunately there are no facilities for children in the Department so arrangements should be made to have them looked after while you attend for interview.”
16. Similarly, the report on the interview of the first named applicant, held on 30th March 1999, refers throughout to her alone as the applicant for asylum and uses only her file reference number. The first named applicant was required, as part of that report, to sign an acknowledgement of a number of matters, running to some eighteen lines of text, concerning her application. No part of this text contained any reference to the application being made on behalf of her children or to the principle of family unity. It is true that, in answer to a question concerning her grounds for claiming asylum, she answered: “Political grounds because they would kill me and the five children.” This, of course, referred to her claimed fear of persecution in Nigeria. She has deposed that she was not asked any questions concerning her children or their welfare, or whether they had any grounds of persecution peculiar to themselves. There is an addendum, upon which the Minister relies: when asked if she wished to add anything, she said: “It’s up to you to keep us as we can’t go home”.
17. On 22nd September 1999, Pacelli Clancy of the Asylum Division made a written assessment of the application of the first named applicant for asylum. That document also refers only to her and uses only her file reference number. It states as a fact that she has five children and refers to the alleged threat to “kill her and her children.” It contains no mention of any application, deemed or otherwise, on behalf of the children.
18. The first named applicant appealed against the recommendation that she not be accorded refugees status. All documents connected with the processing or conduct of the appeal were in her name alone and under her file reference number. The recommendation of the Refugee Appeals Authority was dated 25th July 2000. That detailed assessment of the merits of the asylum claim contains no inkling that appeals on behalf of the appellants were under consideration. The children are twice mentioned in passing: that an agent had arranged a passport for the first named applicant and her five children; that she had presented three birth certificates. Under “Decision,” the substantive merits of the asylum application are assessed. There is no mention of the children.
19. By letter dated 23rd August 2000, the Minister gave notice to the first named applicant of the adverse recommendation of the Refugee Appeals Authority and of the fact that the writer, on behalf of the Minister, had decided to uphold the original decision and to refuse her appeal. The Minister, it was stated, proposed to make a deportation in respect of her. The letter did not mention the appellants.
20. Following this, the first named applicant made submissions requesting leave to remain. Nothing further happened and nothing was heard from the Minister until the letter of 1st July 2002, when the Minister, for the first time, mentioned the appellants. On that date, a letter from the Immigration Division and addressed to all six applicants (the mother and five children) gave notice that the Minister proposed to make deportation orders in respect of all six members of the family. It claimed that the reason was that: “you, all six named persons, failed in your asylum application.” By a letter of 9th August, similarly addressed, the Minister gave further notice of deportation proposals and procedures.
21. On 8th August 2002, the Minister made the separate Deportation Orders in respect of the appellants which are the subject of these proceedings.
22. The Minister points to the fact that no complaint was made by or on behalf of the appellants that they were not persons in respect of whom refusal orders had been made.
23. On the basis of all that evidence, the appellants submit that there was no investigation into the capacity of the children to apply separately or to be heard and that no efforts were made to interview the children. On the contrary, the invitation to A.N. to attend at interview was accompanied by a statement that the children were not to accompany her.
Issues in the Case
24. The single ground upon which Finlay Geoghegan J granted leave sets the boundaries to the issues on the appeal. We are concerned only to discern whether the appellants were persons whose applications for asylum had been refused by the Minister (“a refusal order”) on the date when he made the deportation orders.
25. The order granting leave limits the scope of this appeal. It does not extend to any question whether, assuming a refusal order to have been made, it was invalid by reason of failure to respect the rules of natural justice (audi alteram partem in particular). The question whether the Minister afforded to the appellants any opportunity for a hearing arises only as evidence of whether there was, in reality, in the view of the Minister, any application for asylum on behalf of the appellants. It is common case that the Minister took no steps to permit a hearing to any of the appellants. They were children of tender years, of “diminished capacity,” in the view of Mr O’Connell. Nonetheless, it is clear that the Minister gave no consideration at all to their status as applicants for asylum. He considered only the application of the first named applicant.
26. The appellants have made submissions on a wide range of issues which it is not necessary to determine. In particular, they submit that, by virtue of the language of the relevant sections of the Refugee Act, 1996, only a single individual may make an asylum application. I am unconvinced. For reasons mentioned later, I believe a single application could, in principle, be made on behalf of a number of persons, particularly where they are members of one family. It is not necessary to decide that issue finally, in view of the conclusion I have reached on the main issue in the case.
27. Nor do I believe that the extensive submissions made in respect of the constitutional rights of the family have any real bearing on the issue to be decided. It is not in question that, as individuals, they have rights to be heard with regard to any steps the State proposes to take in respect of them. The Minister simply claims that they were applicants for asylum.
28. Peart J accepted the case made on behalf of the Minister essentially on the basis that the first named applicant represented the appellants throughout the asylum process. The Minister relies particularly on the findings of Peart J that the First Named Applicant was lacking in credibility, but goes on to introduce the notion of family unity, as being, as indeed the Minister has at all times claimed , his guiding principle.
29. The decisive issue on this appeal remains, in my view, that which was defined by Finlay Geoghegan J in her order granting leave. It is whether the appellants were, in law, persons “whose application for asylum has been refused by the Minister,” for the purposes of section 3(2)(f) of the Immigration Act, 1999.
Conclusion
30. The statutory question relates to the refusal of an asylum application. It does not ask whether an asylum application has been made by or on behalf of the appellants. Obviously, a refusal of an application for asylum implies that an application has been made. To that extent, the questions are related. Nonetheless, the existence of a refusal of an asylum application was a fundamental prerequisite to the exercise by the Minister of his power. I do not understand this proposition to have been contested by the Minister.
31. There is no record of any decision refusing an asylum application on behalf of any of the appellants. The decision to refuse is made by the Minister. The only conceivably relevant decision made by the Minister is that dated 23rd August 2000. It is addressed only to the First Named Applicant. It is not addressed to the appellants. That decision could not be treated as being a decision to refuse an application by the appellants without doing violence to its clear terms. In my view, it is incapable of being read as a decision relating to the appellants.
32. On that basis alone, the claim of the appellants is unanswerable. To the extent that it may be thought necessary to consider whether there was ever an application for asylum, and I consider that it is not, by or on behalf of the appellants, I think it is clear that there was no such application. The Minister could have implemented the policy described by Mr O’Connell. He could, for example, have written to the first named applicant and/or to her children stating that several applications were deemed to exist. Whatever might have been done in this respect, nothing at all was in fact done.
33. The essence of the Minister’s defence is that he applied a policy of family unity in accordance with paragraph 213 of the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status. The key sentence states:
“If a minor is accompanied by one (or both) of his parents, or another family member on whom he is dependent, who requests refugee status, the minor’s own refugee status will be determined according to the principle of family unity”.
34. Mr O’Connell’s affidavit cited this sentence to justify treating the application of the first named applicant as being an asylum application on behalf of the family.
35. There is no question but that asylum seekers arrive in the State as family groups. There is equally no question but that the principle of family unity is central to asylum and immigration practices and policies. The most obvious consequence is that, where an asylum seeker is accompanied by his or her children of tender years and such a person is accorded refugee status, it quite obviously enures to the benefit of the children. Paragraph 184 of the same Handbook states: “If the head of the family meets the criteria his dependants are normally granted refugee status according to the principle of family unity.” It would be simply inhuman to permit a person to remain in the State and to expel or deport his children. Clearly, that is the principle underlying the Minister’s policy. As described, it is a proper and reasonable policy.
36. The Minister’s difficulty is that he has assumed that the converse is true. He extrapolates from the principle that a favourable asylum decision benefits other family members the further untenable proposition that a decision which is unfavourable to one is unfavourable to all.
37. Paragraph 185 of the Handbook states that
“the principle of family unity operates in favour of dependents and not against them.”
38. The Minister’s policy, as explained by Mr O’Connell, was to treat the application of the First Named Applicant as having been made also on behalf of the appellants. That would be to treat them all as a family unit. I have already stated that such a policy would be reasonable. The Minister did not, in fact, act in accordance with that policy. At no stage in the asylum process did any document emanating from or required by the Minister advert to the existence of applications on behalf of the appellants. Since preparing this judgment, I have had an opportunity of reading the judgment which is about to be delivered by Finnegan J, who has dealt more completely with the position of minor children and the context of the UNHCR Handbook. I agree with that judgment in respect of these matters. It provides helpful guidance as to the procedures which should be followed in respecting the principle of family unity as well as the individual rights of children.
39. The ultimate question is whether the decision refusing asylum, which confers jurisdiction, which was exercised by the Minister, was made in the case of any of the appellants. Clearly it was not.
40. It follows that the claimed basis for the exercise of the power to make the deportations orders did not exist and that those orders are invalid.
41. I would emphasise that this decision involves no other or wider proposition regarding the immigration status of the appellants.
42. I would allow the appeals in these cases, set aside the judgment of the High Court and make an order of certiorari quashing each of the deportation orders.
Judgment of Mr Justice Finnegan delivered on the 18th day of October 2007
A N (hereinafter the “next friend”) is not a party to this appeal her application for leave to apply for judicial review having been refused in the High Court. She is the mother and next friend of the second to sixth appellants named in the title hereof (hereinafter “the minors”) whose application for judicial review was refused in the High Court. In the case of the minors the learned High Court judge granted leave to appeal pursuant to section 5(3)(a) of the Illegal Immigrants Trafficking Act 2000 on the following points of law:-
1. Whether the procedures for dealing with an application for asylum pursuant to the Refugee Act 1996 or the pre-existing non-statutory scheme permit the Minister to receive and determine an application for refugee status made by the parent of a minor child (which child accompanies that parent) on the parent’s own behalf and on behalf of or including such minor child as the application for asylum of that child either at all or where the parent does not advance or bring to the attention of the Minister any facts or circumstances relevant to that minor separate and distinct from the facts of circumstances relevant to the parent’s application.2. Whether in considering an application for asylum made by or on behalf of an accompanied minor the Minister is obliged to consider the application of an accompanied minor in his or her own right separately and distinctly from that of the accompanying parent and whether for that purpose the Minister is obliged to(a) Ascertain the views of the minor and more particularly the fears of the minor related to the application for a declaration of refugee status.(b) Ascertain the capacity of the minor to express his or her views directly and(c) Interview the minor unless such interview would cause unnecessary hardship and trauma on the minor.
The facts
The minors are Nigerian nationals who arrived in Ireland on the 10th May 1998 in the company of their mother. They were then aged 12 years 5 months, 8 years 11 months, 6 years 3 months and twins 4 years 3 months respectively. On the 11th May 1998 the next friend applied for asylum and was requested to and did complete a questionnaire. She was interviewed on the 30th May 1999. By letter dated 18th February 2000 she was informed that her application for refugee status had been refused. She appealed against the refusal and on the 25th July 2000 a recommendation was made by the Refugee Appeals Authority, following an oral hearing, that the appeal be dismissed on the basis that the next friend had not satisfied the Authority that she had a well founded fear of persecution on a convention ground. By letter dated 23rd August 2000 the next friend was notified of this recommendation and of the fact that it was being upheld and that the Minister proposed to make a deportation order in respect of her pursuant to the Immigration Act 1999 section 3. She was invited to make any representations as to why she should be allowed to remain in the State within a period of fifteen days. Representations were made on her behalf by her solicitor. By letter dated 1st July 2002 it was confirmed to the next friend and to the minors that the Minister proposed to make a deportation order against each of them in accordance with the Immigration Act 1999, section 3(2)(f) they being persons whose application for asylum had been refused. Up to this date there had been no indication in correspondence or otherwise that the next friend’s application was being treated by the Minister as encompassing applications for each of the minors. The letter gave information as to the options open to the next friend and the minors, namely to make written representations as to why they should be allowed to remain temporarily in the State or to leave the State before the deportation orders should be made. Enclosed with that letter were a number of address notification forms, one for the first next friend and one for each of the minors. These were duly completed, signed in each case by the next friend and returned by the next friend’s solicitor as requested. By letter dated 8th July 2002 representations were made by the next friend’s solicitor: these representations however were merely to repeat representations made on behalf of the next friend in response to the letter of 23rd August 2000 and at a time when the second named applicant had not yet attained the age of sixteen years. By letter dated 9th August 2002 addressed to the next friend and the minors all six were furnished with copies of deportation orders dated 8th August 2002 and requested to present themselves at Trim Garda Station on Friday, 16th August 2002 at 2.30 p.m. to make arrangements for their deportation. By motion returnable on the 10th December 2003 the next friend and the minors sought leave to apply by way of judicial of review for an order of certiorari quashing all six deportation orders. In a reserved judgment of 31st October 2003 Finlay Geoghegan J. refused the next friend leave to apply for judicial review but granted leave to the minors. The ground upon which leave was granted to the minors was as follows:-
“The deportation orders of the 2nd August 2002 relating to the second to sixth named applicants are invalid in that the second to sixth named applicants were not on the date persons whose applications for asylum had been refused by the first named respondent within the meaning of section 3(2)(f) of the Immigration Act 1999.”
The application failed in the High Court but the learned trial judge certified the points of law cited above.
The Affidavits on the application
1. The grounding affidavit.The grounding affidavit was sworn by the minor’s solicitor and largely consists of the chronology set out above. However in paragraph 14 thereof he identified a separate well-founded fear of persecution particular to the minors and separate and distinct from that expressed by the next friend on the application and at interview. He did this in the following terms:-
“I am instructed that all the applicants herein fear that because of their race, ethnicity or membership of a social group, they will be subjected to female genital mutilation if returned to Nigeria and that their health and life will be severely impaired and threatened if so returned. I believe that such a procedure would be extremely harrowing and dangerous.”
He further deposes that the minors did not apply for asylum nor were they afforded the opportunity of an independent application or separate advocacy of their concerns. They were not interviewed. They did not get an opportunity to outline their concerns.
2. Affidavit of Charles O’ConnellCharles O’Connell swore an affidavit on behalf of the first-named respondent in response to the grounding affidavit. He deposes that the next friend listed the names and dates of birth of each of her children in her application for refugee status. Five reference numbers were assigned of which reference number 69/1346/98(b) related to the next friend and 69/1346/98 (c), (d) (e) and (f) and (g) to the minors. The policy of treating the application for asylum of the next friend as being an application on her own behalf and on behalf of each of the minors who accompanied her was applied taking into account the diminished capacity of the minors. The policy has its origin in paragraph 213 of the E.C.H.R. Handbook on Procedures and Criteria for Determining Refugee Status. The reason given by the next friend for seeking asylum was a threat to herself and her children. The first named respondent believes that the next friend acquiesced in the procedures adopted and at no time did she object to the same.
3. The next friend’s affidavit.The next friend swore an affidavit in reply to that of Mr O’Connell.
In her affidavit the next friend deposes that on the 11th May 1998 on applying for asylum she was given a Form ASY/1 for completion which she duly completed: she exhibits a copy of the same. The form states that it must be completed “by all persons seeking refugee status”: in fact only one form was completed and that relates to the next friend. It gives the name of the person making application as A N and contains her personal information – date of birth, place of birth, sex, marital status, religion, nationality and so forth. It required her to list her children and give their sex, date of birth, place of birth and where they then were. A great deal of further information was required of the next friend including details of her parents, her brothers and sisters, her education, her employment record and countries in which she had lived. Other than to set out in relation to the minors their name, sex, date and place of birth and where they now are no further information was sought in relation to the minors. She was required to set out why she was seeking asylum and this she did in the following terms:-
“I seek asylum because my brother in the Army and he get problem with Army and they looking for him and he run away and they say they will arrest his family, all the people, and kill them if brother don’t come out. Then they phone me to tell me that Army is coming to my house from the village because they go our village to look for brother but was not there. Then I ran to the agent that bring me. Then took me and children to Cotonu, France and Ireland. Then I tell him to take money from uncle in village. Uncle knows him.”
By letter dated 11th March 1999 the next friend was requested to attend for interview on the 30th March 1999. The letter contained the following
sentence:-“Unfortunately there are no facilities for children in the Department so arrangements should be made to have them looked after while you attend for interview.”
Because of this the children did not attend at the interview. The next friend duly attended for an interview which was recorded as “questions and answers” in manuscript: she signed each page of the same. She was asked why she left Nigeria and replied:
“Because of the problem that my brother had. He is in the Army and they planned a coup 1997 in December and it failed and the Government is looking for him. Army officers who did not give me their names called at my house looking for him. I told them that he was not there. They left a message to tell him report at the camp within 24 hours and that if he did not do this his family would be in a problem. This was around the 27.04.98 and they left. They went to the village to threaten my parents so my uncle phoned me and they (military) left another message that if they don’t find him (brother) they would kill the family. So now my uncle told me that they said that they were coming back to the house and that if don’t find him they were going to arrest me and it is going to be very bad. Could even take my life. So I now ask my uncle what to do. He said that I would have to run away like my brother’s wife ran to America. I moved with the children to live with relatives at 13 Shogunle Street, Lagos. I called my uncle again and he told me to leave the country, that it is not safe. He told me to wait and give him time to contact an agent that he knows. On 3 or 4-05-98 I rang my uncle and he told me that he contacted an agent and that he would take me and children out of Nigeria. Then he gave me the agent’s address to meet the agent the following day. I went and met the agent and he talked and he told me that he was taking us to Ireland in a ship. He said that my uncle was paying the cost. I don’t know how much. The agent called to the place that I was staying on 8-5-98 and he took us in a bus from Lagos to Cotonu. I think it is in the Benin Republic. We spent some time there as we travelled on bus for 8-12 hours. Then we got a ship to France and I don’s know where we arrived in France. Then we went to Ireland arriving on the 10-5-98. Change please to 11-5-98. The agent was with us on the bus and in the ship. I don’t know what port in Dublin we came into. The agent’s name was Martin Bolojoko.”
Later in the interview she was asked the reason the authorities wanted her and she replied as follows:-
“Because I lived with my brother and he was missing and his family said that I was the next person and that they (Army) would arrest me and put me in jail until my brother came out of hiding.”
She was asked again as to the grounds for claiming asylum and answered:
“Political grounds because they would kill me and the five children.”
She went on to say that the Army arrested her father and mother but let them out after some time and that if she returned to Nigeria she would be killed. At the end of the interview she was asked a number of questions, the answers to which were again recorded and she signed the same. The first question and the answer to the same are as follows:-
“Q. Do you wish to add anything to what you have said?
A That it is up to you to keep us as we can’t go back.”
The minors were not, save as above, considered at the interview.
A report of the interview was prepared. It deals with the basis of the claim as follows:-“She is applying for asylum because her brother who was a member of the military was allegedly involved in the December 1997 reported coup plot. Around 27-04-98 Army officers called to her house looking for her brother. She claims they threatened to kill her and her children if she did not find her brother.”
The report contains no mention of the minors other than the threat to kill them and on its face relates only to the next friend.
On the 3rd March 2000 the first named applicant was informed of the decision to refuse her recognition as a refugee. Again there was no mention of the minors.
It was not until the letter of 1st July 2002 notifying the Minister’s proposal to make deportation orders that mention of the minors was first made in correspondence from the Minister.
Was there an application on behalf of the Minors?
The next friend’s application was dealt with on a non-statutory basis in accordance with the State’s undertaking to the United Nations in the Hope Hanlan letters. The Supreme Court in V.Z v. The Minister for Justice [2002] 2 IR 135 at 148 accepted the relevance of the U.N.H.C.R. Handbook on Procedures and Criteria for Determining Refugee Status in considering procedures adopted by the State to fulfil Convention obligations. The following matters are drawn from the Handbook. The Convention leaves it to each contracting state to establish the procedure that it considers most appropriate for the determination of refugee status having regard to its particular constitutional and administrative structure. There is no objection to refugee status being considered under informal arrangements. However certain basic requirements are considered essential. The relevant facts in the first place must be furnished by the applicant. While the general legal principle is that the burden of proof lies on the applicant, cases in which an applicant can provide evidence of his statements will be the exception rather than the rule. Thus while the burden of proof in principle rests on the applicant, the duty to ascertain and evaluate all the relevant facts is shared between the applicant and the examiner and in some cases it may be necessary for the examiner to use all the means at his disposal to produce the necessary evidence in support of the application. An initial interview should normally suffice to bring the applicant’s story to light. The basic information is frequently given in the first instance by completing a standard questionnaire which will normally not be sufficient to enable the examiner to reach a decision and one or more personal interviews will be required. Since the examiner’s conclusion on the facts of the case and his personal impression of the applicant will lead to a decision that affects human lives he must apply the criteria in a spirit of justice and understanding.
The Handbook has a section headed “Unaccompanied Minors”. In dealing with unaccompanied minors that section casts light on the approach to be taken to accompanied minors. The relevant paragraphs are as follows:
“213 There is no special provision in the 1951 Convention regarding the refugee status of persons under age. The same definition of a refugee applies to all individuals regardless of their age. When it is necessary to determine the refugee status of a minor, problems may arise due to the difficulty of applying the criteria of “well-founded fear” in his case. If a minor is accompanied by one (or both) of his parents, or another family member on whom he is dependent, who requests refugee status, the minor’s own refugee status will be determined according to the principle of family unity.
214 The question of whether an unaccompanied minor may qualify for refugee status must be determined in the first instance according to the degree of his mental development and maturity. In the case of children, it will generally be necessary to enroll the services of experts conversant with child mentality. A child – and for that matter an adolescent – not being legally independent should, if appropriate, have a guardian appointed whose task it would be to promote a decision that will be in the minor’s best interests. In the absence of parents or of a legally appointed guardian it is for the authorities to ensure that the interests of the applicant for refugee status who is a minor are fully safeguarded.
215 Where a minor is no longer a child but an adolescent, it will be easier to determine refugee status as in the case of an adult, although this again will depend upon the actual degree of the adolescent’s maturity. It can be assumed that – in the absence of indications to the contrary – a person of 16 or over may be regarded as sufficiently mature to have a well founded fear of persecution. Minors under 16 years of age may normally be assumed not to be sufficiently mature. They may have fear and a will of their own, but this may not have the same significance as in the case of an adult.
216 It should, however, be stressed that these are only general guidelines and that a minor’s mental maturity must normally by determined in the light of his personal, family and cultural background.
217 Where the minor has not reached a sufficient degree of maturity to make it possible to establish well founded fear in the same way as for an adult, it may be necessary to have greater regard to certain objective factors. Thus, if an unaccompanied minor finds himself in the company of a group of refugees, this may - depending on the circumstances – indicate that the minor is also a refugee.
218The circumstances of the parents and other family members, including their situation in the minors’ country of origin, would have to be taken into account. If there is reason to believe that the parents wish their child to be outside the country of origin on grounds of well founded fear of persecution, the child himself may be presumed to have such fear.
The principle of family unity is dealt with in paragraphs 181 to 188 of the Handbook and is also relevant. These provide as follows:-181 Beginning with the Universal Declaration of Human Rights which states that “the family is the natural and fundamental group unit of society and is entitled to protection by society and the State”, most international instruments dealing with human rights contain similar provisions for the protection of a family.
182 The Final Act of the conference that adopted that 1951 Convention:“Recommends Governments to take the necessary measures for the protection of the refugee’s family, especially with a view to:
(i) ensuring that the unity of the refugee’s family is maintained particularly in cases where the head of the family has fulfilled the necessary conditions for admission to a particular country;
(ii) the protection of refugees who are minors, in particular unaccompanied children and girls, with special reference to guardianship and adoption.”
183 The 1951 Convention does not incorporate the principle of family unity in the definition of the term “refugee”. The above mentioned Recommendation in the Final Act of the Conference is, however, observed by the majority of States, whether or not parties to the 1951 Convention or to the 1967 Protocol.
184 If the head of a family meets the criteria of the definition, his dependants are normally granted refugee status according to the principle of family unity. It is obvious, however, that formal refugee status should not be granted to a dependant if this is incompatible with his personal legal status. Thus, a dependant member of a refugee family may be a national of the country of asylum or of another country, and may enjoy that country’s protection. To grant him refugee status in such circumstances would not be called for.
185. As to which family members may benefit from the principle of family unity, the minimum requirement is the inclusion of the spouse and minor children. In practice, other dependants, such as aged parents of refugees, are normally considered if they are living in the same household. On the other hand, if the head of the family is not a refugee, there is nothing to prevent any one of his dependants, if they can invoke reasons on their own account, from applying for recognition as refugees under the 1951 Convention or the 1967 Protocol. In other words, the principle of family unity operates in favour of dependants, not against them.
186 The principle of the unity of the family does not only operate when all family members become refugees at the same time. It applies equally to cases where a family unit has been temporarily disrupted by the plight of one or more of its members.
187 Where the unity of a refugee’s family is destroyed by divorce, separation or death, dependants who have been granted refugee status on the basis of family unity will retain such refugee status unless they fall within the terms of a cessation clause; or if they do not have reasons other than those of personal convenience for wishing to retain refugee status; or if they themselves no longer wish to be considered as refugees.
188 If the dependant of a refugee falls within the terms of one of the exclusion clauses, refugee status should be denied to him.”
Accordingly to comply with the Convention the procedural requirements are modest and may be met by the following:
1. the applicant for refugee status must furnish the relevant facts.
2. although the burden of proof, in principle, rests on the applicant the duty to ascertain and evaluate all relevant facts is shared between the applicant and the State.
3. an appropriate procedure is to require the applicant to complete a questionnaire giving basic information to be followed by one or more personal interviews as may be required.
Also of some relevance is paragraph 190 of the E.C.H. R. Handbook which has this to say:-
“It should be recalled that an applicant for refugee status is normally in a particularly vulnerable situation. He finds himself in an alien environment environment and may experience serious difficulties, technical and psychological, in submitting his case to the authorities of a foreign country, often in a language not his own. His application should therefore be examined within the framework of specially established procedures by qualified personnel having the necessary knowledge and experience, and an understanding of the applicant’s particular difficulties and needs.”
In relation to minors, taking into account the principle of family unity, I take from the Handbook the following guidelines. The same definition of a refugee applies to all individuals regardless of age: thus a minor will have to establish a well founded fear within the Convention and where the minor is of tender years this clearly creates a difficulty. Accordingly a minor accompanied by a parent and whose parent requests refugee status will have his refugee status determined according to the principle of family unity. Where the head of the family fulfils the necessary conditions for admission as a refugee the contracting state should ensure that the refugee’s family unity is maintained. Paragraph 184 of the Handbook provides that if the head of a family meets the criteria of the definition of refugee his dependants are normally granted refugee status according to the principle of family unity. However under paragraph 185 if the head of the family is not a refugee there is nothing to prevent any one of his dependants, if they can invoke reasons on their own account, from applying for recognition of their status as refugees: the principle of family unity operates for the benefit of the minor and not against him. Minors under 16 years of age may normally be assumed not to be sufficiently mature to have a well founded fear of persecution. The handbook envisages, it seems to me, an application by the parent of a minor child and if that is successful the minor will be granted status and if unsuccessful the minor can apply based on his own circumstances and reasons: see E.C.H.R. handbook paras. 184 and 185.
Conclusion on the first point of law
Taking guidance from the E.C.H.R. Handbook I am satisfied that on an application by a parent of a minor child the Minister under the non-statutory regime could deal with that application without having regard to the minor. If the application succeeds the minor should be given refugee status. If the application is unsuccessful then the minor is entitled to apply for refugee status based on his own circumstances and reasons. The E.C.H.R. Handbook does not envisage the parent’s application as being also an application on behalf of the minor nor that on failure of the parent’s application the status of the minor should be determined without regard to his individual circumstances or reasons. Thus the Minister was in error in treating the next friend application as being one on behalf of the minors also. The next friend’s application was not an application by the minors but if successful, applying the principle of family unity, would benefit them. In the present case there was no application by or on behalf of the minors. Accordingly on the central issue on the application for judicial review there had been no application by or on behalf of the minors and the Immigration Act 1999 section 3(2)(f) did not apply to them: the basis upon which the Minister purported to make deportation orders in relation to the minors did not exist. I would answer the first point certified in the negative.
There having been no application on behalf of the minors the second question certified does not arise for consideration.
I would allow the appeal and make an order of certiorari quashing the deportation orders made in respect of the minors. Further, I have had the benefit of reading the judgment handed down by Mr Justice Fennelly, the order which he proposes and the reasons which he gives in paragraph 38 thereof and I agree with the same.
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