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

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.