UK - JA v The Secretary of State for the Home Department

Country of Decision:
Country of Applicant:
Date of Decision:
24-11-2016
Citation:
[2016] UKUT 00560 (IAC)
Court Name:
Upper Tribunal (Immigration and Asylum Chamber)
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Headnote: 

This case dealt with the extent to which in the case of a child the prospect of discrimination could amount to a real risk of persecution sufficient to found a successful asylum claim in a situation where a comparably placed adult would not be at such a risk. 

Facts: 

The Appellant was an overstayer, due to be returned to Nigeria with her 7 year old son. Her son had been born and brought up in the UK and suffered from albinism.  Whilst the First Tier Tribunal had held that there would be sufficient interference with the Appellant’s Article 8 rights that she should not be returned, it had rejected her claim for asylum for herself and her son, which was confirmed on appeal. This decision was now remitted on further appeal to the Upper Tribunal for reconsideration.

Expert evidence, accepted at the previous hearings, was that there were significant numbers of albinos in Nigeria and that there was a high likelihood of them being subjected to discrimination and a lower likelihood of them suffering potentially life threatening danger due to the widely held belief that their body parts conferred beneficial properties. In essence the question was was this sufficient to rise to the level of a ‘real risk’ of persecution for the purposes of an asylum claim.

Decision & Reasoning: 

The Tribunal found that the Appellant’s child would be subject to a real risk of persecution if sent to Nigeria based on the following reasoning:

  • Albinos could be regarded as a particular social group.
  • The Nigerian authorities were not likely to be able to provide effective protection.
  • The test to be applied in deciding whether there was a real risk of persecution was the same as for breach of Article 3 ECHR.
  • The Tribunal considered the risk of ritual slaughter for being an albino as a remote possibility, not a real risk.
  • If the discrimination faced by the child in Nigeria could have particularly adverse effects though, this could amount to persecution. Whilst examples of such discrimination amounting to persecution included prevention of access to employment or education, this was not essential. If children’s rights under the Convention on the Rights of the Child were violated in a sustained or systematic manner this could be sufficient.
  • The Convention on the Rights of the Child is relevant to asylum issues; consistent with applicable UNHCR Guidelines it is necessary to have regard to the vulnerability of children and it is clear that a child can be at risk of persecutory harm in circumstances where a comparably placed adult would not be. This does not mean that children have additional rights under the Refugee Convention; rather the definition of persecution should be interpreted in accordance with the distinctive rights that children possess.
  • Whilst the starting point of the assessment is the particular vulnerability of children, the Tribunal stressed the need to consider the personal perspective of the particular child and the particular facts of the case. In this case the child had been born and brought up in the UK where there was no general antipathy towards or discrimination against albinos. The Tribunal stated that the effect on him of such discrimination would therefore be entirely new, and much more serious than if he had been brought up in Nigeria.
  • This also undermined the Government’s argument that a finding in favour of the Appellant and her child would open the floodgates to all the albinos in Nigeria founding asylum claims on the same basis. The Tribunal stressed that this was not in fact a test case for such a scenario, because the individual position, age and background of each child is what had to be considered, and even in this case the Tribunal admitted that this was a very close run case and that it was not usual to conclude a real risk of persecution without more. 
Outcome: 

The Appellant’s appeal was allowed on asylum grounds/humanitarian grounds.

Observations/Comments: 

This case was written by Jonathan Thomas, LLM at Queen Mary University, London. 

Other sources cited: 

UNHCR Guidelines on Child Asylum Claims

Case Law Cited: 

UK - E v Chief Constable of the Royal Ulster Constabulary [2008] UKHL 66, [2009] 1 AC 536

Kim v Canada (MCI) 120111 2 FCR 448