A Child-Rights Framework for Understanding ‘Being Persecuted’: The Case of JA (child – risk of persecution) Nigeria

By Jason Pobjoy

Dr Jason Pobjoy is a barrister at Blackstone Chambers, where he has a broad practice including public and human rights law, refugee and immigration law and public international law. He is a Research Associate at the Refugee Studies Centre at the University of Oxford. His monograph, The Child in International Refugee Law, will be published by Cambridge University Press in April 2017. This is the first in a series edited by Professor James Hathaway, University of Michigan.  Twitter: @jasonpobjoy

In recent years, we have seen the development of a sophisticated body of jurisprudence tackling the specific challenges faced by child refugees in seeking international protection. Although still nascent, this development is long overdue. Despite the fact that children have for some time constituted a significant proportion of the refugee population – sadly, according to United Nations High Commissioner for Refugees (“UNHCR”) data, currently 51%[1] – the vast majority of the jurisprudence concerning the 1951 Convention is focused exclusively on the (often male) adult refugee experience. Child refugees – whether accompanied or unaccompanied – are often rendered invisible in the refugee determination process and, even where a child’s claim is independently assessed, their claims are often incorrectly assessed, with a failure to interpret the 1951 Convention Relating to the Status of Refugees (“1951 Convention”) in a manner that takes into account the fact that the applicant is in fact a child.

A recent decision of the United Kingdom Upper Tribunal (Immigration and Asylum Chamber) illustrates the importance of moving away from an adult-centred optic, and asking how the 1951 Convention refugee definition – and in particular the “being persecuted” standard – can and should be interpreted and applied to accommodate the special protection needs of refugee children.

The need for an age-sensitive understanding of ‘being persecuted’

At the core of the refugee definition in Article 1A(2) of the 1951 Convention is the requirement that an applicant demonstrate a well-founded fear of “being persecuted”. The phrase is not defined in the 1951 Convention. Senior courts around the world have recognised a link between the “being persecuted” requirement and human rights standards, adopting the definition first articulated by James Hathaway that “persecution is most appropriately defined as the sustained or systemic failure of state protection in relation to one of the core entitlements which has been recognised by the international community”.

It is well established that an applicant’s age is a key factor to be considered in determining whether the “being persecuted” threshold has been satisfied.[2] This is unsurprising. It reflects the reality that a child may be at risk of persecutory harm on return, contrary to the 1951 Convention, in circumstances where a comparably placed adult would not be at risk. A child may, for instance, be at risk of a form of harm that can only be inflicted on a child (such as forced child labour, child prostitution, pre-puberty female genital cutting, witchcraft practices in some African cultures, or parental abuse or neglect). A child may also face a degree of physical or psychological harm that will not reach the requisite threshold in the case of an adult, but will when considered from the perspective of the child.[3]

An age-sensitive construction of the “being persecuted” standard requires a decision-maker to assess the relative impact that the apprehended harm will have on a child, taking into account the child’s evolving capacities and developmental needs.

At the heart of any assessment must be the Convention on the Rights of the Child (“CRC”).[4] Indeed, in circumstances where there is general agreement that international human rights law is relevant to the identification of persecutory harm, and where an overwhelming majority of state have acknowledged, via the ratification of the CRC, that children have a distinct set of human rights, it becomes difficult to justify a failure to engage with the corpus of rights enshrined in the CRC when applying the “being persecuted” standard to children. As the Federal Court of Canada has eloquently apprised, “[i]f the CRC recognises that children have human rights and that ‘persecution’  amounts to the denial of basic human rights, then if a child’ s rights under the CRC are violated in a sustained or systematic manner demonstrative of a failure of state protection, that child may qualify for refugee status”.[5]

The argument for greater interaction between the “being persecuted” standard and the CRC is by no means novel. Both the UNHCR and the United Nations Committee on the Rights of the Child (“UNCRC”) have issued guidance that promotes such interaction. In its 1997 Guidelines on Policies and Procedures in dealing with Unaccompanied Children Seeking Asylum (“1997 Guidelines”), UNHCR underlined that in identifying persecutory harm in claims involving children “[i]t should be…borne in mind that, under the [CRC}, children are recognized [to have] certain specific human rights, and that the manner in which those rights may be violated as well as the nature of such violations may be different from those that may occur in the case of adults”.[6]  The point is re-articulated in UNHCR’s 2009 Guidelines on International Protection No. 8: Child Asylum Claims Under Article 1A(2) and 1F of the 1951 Convention and/or 1967 Protocol Relating to the Status of Refugees (“2009 Guidelines”), which provide that “[a] contemporary and child-sensitive understanding of persecution encompasses many types of human rights violations, including violations of child-specific rights. In determining the persecutory character of an act inflicted against a child, it is essential to analyse the standards of the CRC and other relevant international human rights instruments applicable to children”.[7] The UNCRC has similarly emphasised the need to “take into account the development of, and formative relationship between, international human rights and refugee law” when assessing the “being persecuted” standard.[8]

The relationship between the “being persecuted” standard and the CRC has also been acknowledged at a domestic level, both in guidelines produced by government and in the jurisprudence of national courts and tribunals. To date, the clearest endorsement is found in the Canadian jurisprudence, although decision-makers in New Zealand and the United States have also demonstrated a willingness to draw on the framework of the CRC to identify persecutory harms. [9]

The case of JA  (child – risk of persecution) Nigeria

Against that background, we turn to the facts of JA (child – risk of persecution) Nigeria [2016] UKUT 00560. [10] The facts are striking. The main applicant (JA) was a Nigerian national, who had given birth to a son (NA) while residing in the United Kingdom. At the time of the original application NA was four years old. He was an albino. The refugee claim was based on the risk of persecutory harm to NA on account of NA’s albinism.

The primary decision-maker rejected the refugee claim. On appeal, the First-tier Tribunal made the following findings of fact: that NA was “albino”; that “[t]he evidence  … shows that, according to some cultural and belief systems in Nigeria, albino people are believed to be endowed with certain powers … [and] [t]here are reports that some albinos have been kidnapped and killed for ritualistic purposes”; that   “[g]iven the widespread nature of societal discrimination against albino people it seems likely that such attitudes might also be reflected in the police service and other potential ‘actors of protection’”; that “the Nigerian authorities are not likely to be able to provide effective production to [JA] and [NA] against ongoing discrimination or the risk of more serious harm arising from potential ritualistic abuse”; that “[JA] and her son are likely to be stigmatised and discriminated against as a result of [NA’s] albinism”; and that “[NA] would suffer from ongoing discrimination and would have far worse life chances in Nigeria over and above the conditions that other children face there”.

Notwithstanding these factual findings, the First-tier Tribunal concluded that JA and NA were not refugees. The Judge considered that the “crux of the assessment” was “whether the level of ongoing discrimination and the risk of serious harm from ritualistic abuse is sufficiently serious to cross the threshold to amount to persecution”. The Judge held that, although “serious”, the risks that JA and NA would face “just fell short of that threshold”.

In reaching this (rather remarkable) conclusion, the First-tier Tribunal Judge failed to take into account the fact that NA was (then) a four year old child. After an unsuccessful appeal to the Upper Tribunal, permission was granted to appeal to the Court of Appeal. The key question on appeal was whether the First-tier Tribunal Judge had adopted the correct approach to “being persecuted” in Article 1A(2) in a case involving a child.

Prior to the Court of Appeal hearing, the Government conceded the appeal, and the case was remitted to the Upper Tribunal for reconsideration.

The Upper Tribunal’s decision

In a decision promulgated on 24 November 2016, the Upper Tribunal upheld the applicants’ appeal and determined that both JA and NA were refugees pursuant to the 1951 Convention. The Upper Tribunal held that, if returned, he would be considered by many as having been “tainted by some form of witchcraft” and would be regarded as a “second class citizen” (§23). The Upper Tribunal stressed that “it is the effect of that upon [NA] that matters”, and that it had “no doubt that there [was] a real risk of certainly bullying, possibly worse, when he goes to school and that he will feel like a pariah in society as a whole” (§23). This was considered sufficient to satisfy the “being persecuted” threshold (§24).

The reasoning of the judgment is relatively brief, however three features of the decision are significant.

First, the Upper Tribunal held that the particular vulnerability of children “must be the starting point” (§25). That is obviously right, and accords with the recognition, discussed above, that an applicant’s age is a key factor to be considered in determining whether the “being persecuted” threshold has been satisfied. The Upper Tribunal relied on UNHCR’s 2009 Guidelines (§17), and the jurisprudence of both the English courts and the European Court of Human Rights on Article 3 ECHR, which have emphasised the need to pay particular regard to the vulnerability of children in assessing the Article 3 ECHR ill-treatment standard (§§17-18). The Upper Tribunal stated that it had “no doubt that this is the approach that should be adopted” (§18). In applying an age-sensitive construction to the facts of the present case, the Judge underlined that “[o]ne has to look at this from the point of view  of … the child. He it must be born in mind has so far, and he is now 7 years old, been living in this country where there is not the general antipathy to and discrimination against albinos. Thus if he goes to Nigeria he will find himself in a society … where there is a general discriminatory approach to those suffering from albinism. That is something which is bound to have a particular effect on him” (§13).

Secondly, and related the Upper Tribunal affirmed the central importance of the CRC in assessing the “being persecuted” standard. It held that “the Convention on the Rights of the Child is clearly a relevant consideration that this Tribunal and indeed all who deal with asylum issues should take into account, and it is clear that a child could be at risk of persecutory harm contrary to the Convention in circumstances where a comparably placed adult would not be at such risk” (§15). This accords with an earlier decision of the Upper Tribunal in ST (Child Asylum Seekers: Sri Lanka) [2014] INLR 332, which accepted that “the UN Convention on the Rights of the Child and other child-based instruments, have relevance for the assessment of whether any well-founded fear of persecution is for a Refugee Convention reason” (§21), and with recent case-law from Canada[11] and New Zealand.[12]

Finally, and related, the Upper Tribunal demonstrated a willingness to engage with comparative case law, and in particular the decision of the Federal Court of Canada in Kim v Canada (MCI) [2011] 2 FCR 448, which expressly considered the impact of the Convention on the Rights of the Child on the “being persecuted” threshold. In circumstances where the case law on the interpretation the 1951 Convention in claims involving children is still in its relatively early stages, it is particularly important for decision-makers to refer to the reasoning adopted by their colleagues in other jurisdictions. It is only through this transnational judicial conversation that we will see the development of a truly international refugee law jurisprudence aimed at prompting a child-centered understanding of the 1951 Convention.

 

[1] According to UNHCR data, in 2015, children below 18 years constituted 51% of the refugee population, up from 41% in 2009. In 2015, some 98,400 asylum applications were lodged by unaccompanied or separated children in 78 countries, the highest number on record since UNHCR started collecting data in 2006, and almost three times the number of applications in 2014 (34,300): UNHCR, Global Trends 2015 (2016) 3, 8.

https://perma.cc/KS45-DEUU.

[2] See, e.g., J. Pobjoy, The Child in International Refugee Law (2017), Chapter 3.

[3] This has been expressly recognised by UNHCR: see UNHCR, Guidelines on International Protection: Child Asylum Claims under Article 1A(2) and 1F of the 1951 Convention and/or 1967 Protocol Relating to the Status of Refugees, HCR/GIP/09/09 (2009) (“2009 Guidelines”) at §15, https://perma.cc/Z6WV-A9YF. See, also, e.g., Article 2(b), Article 4(3) and recital (2) of the EU Qualification Directive, https://perma.cc/8VU3-V6TX.

[4] See generally J. M. Pobjoy, The Child in International Refugee Law (2017), Chapter 3.

[5] Kim v Canada (MCI) [2011] 2 FCR 448, 467, https://perma.cc/5LV7-S5L2.

[6] UNHCR, Guidelines on Policies and Procedures in dealing with Unaccompanied Children Seeking Asylum, Feb. 1997, 1, https://perma.cc/88B2-PNNJ.

[7] UNHCR, 2009 Guidelines, [13], https://perma.cc/Z6WV-A9YF.

[8] UNCRC, Committee on the Rights of the Child, General Comment No. 6: Treatment of Unaccompanied and Separated Children Outside Their Country of Origin (2005), [74], https://perma.cc/WW6A-N72W.

[9] See generally J. M. Pobjoy, The Child in International Refugee Law (2017), 126-127.

[10] JA (child-risk of persecution) Nigeria [2016] UKUT 00560 (IAC), https://perma.cc/B5F8-ZARS.

[11] See, especially, Kim v Canada (MCI) [2011] 2 FCR 448, https://perma.cc/5LV7-S5L2.

[12] The Refugee Status Appeals Authority and the recently established New Zealand Immigration Protection Tribunal regularly refer to the Convention on the Rights of the Child in interpreting the “being persecuted” standard: see, e.g., DQ (Iran) [2015] NZIPT 800868, §§38–40, 47, https://perma.cc/U2LC-2PX8; Refugee Appeal Nos 76494 and 76495 (RSAA, 23 November 2010); Refugee Appeal Nos 76226 and 76227 (RSAA, 12 January 2009), §§111–115, https://perma.cc/GH93-JULK; Refugee Appeal Nos 75301, 75302 and 75303 (RSAA, 24 January 2006), §§43–47, https://perma.cc/2CZX-8SUF; Refugee Appeal Nos 76380, 76381, 76382 and 76383 (RSAA, 30 June 2010), https://perma.cc/TP7S-F8Y6.

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