A Court of Appeal decision means the Refugee Appeals Tribunal must reconsider a Chinese couple's application for refugee status in Ireland on grounds of a fear of persecution if returned to China due to having breached China's one child policy.
The fact the Chinese government announced the end of the one child policy last October, after the appeal court hearing, will be relevant to that reconsideration, the appeal court noted.
In seeking refugee status, the couple claimed they fled China out of fear the husband would be forcibly sterilised, as his wife had been, following the birth of their second child.
The couple claimed they had their first child in secret in the 1990s when the man was under 22, the legal age for marriage.
They married soon afterwards but, when registering the marriage, it was discovered the woman was again pregnant.
After being told by a Family Planning Commissioner the child must be aborted, the couple claimed they went into hiding and only returned home after their second child was born. The wife was then permanently sterilised and they were charged and fined.
Fled home province
The couple claimed they fled their home province when the family planning authorities returned to take the husband for sterilisation, and came to Ireland in 2000.
They lived and worked among the Chinese community until late 2005 when, after being detected by gardaí, they sought asylum.
Their applications were refused by the tribunal, but the High Court later ruled, in proceedings to which the Irish Human Rights and Equality Commission was a notice party, they were entitled to have them reconsidered by the tribunal.
Mr Justice Anthony Barr certified that the case raised points of law of exceptional importance concerning whether the couple could advance a claim for refugee status on grounds of fear of persecution arising from membership of a particular social group - those who, contrary to the one child policy in China, have had more than one child without official permission.
The State appealed the High Court decision, but the three-judge Court of Appeal dismissed the appeal.
Giving that judgment, the president of the court, Mr Justice Sean Ryan, noted the State argued the couple did not form part of a "particular social group" within the meaning of the Refugee Act, the relevant EU 2004 Qualification Directive or Irish Regulations implementing that directive.
Having analysed decisions from several jurisdictions, the judge said it was “impossible to adhere to a strict and narrow definition” of a “particular social group”.
The one child law was of general application but is also a “fundamental breach” of the human rights of all affected persons, he said.
Persecution “is a given” when the law provides for sanctions of forcible male and female sterilisation.
Pariah status
A particular social group may be defined as comprising persons who breach an unjust law and are exposed to such punishment or to social pariah status by the surrounding society, he said.
Dismissing the State’s appeal, the court directed the “particular social group” issue be reconsidered by the Refugee Appeals Tribunal in light of those findings.
The tribunal must also reconsider its findings, made on foot of an assessment of written responses of the couple to questionnaires, that their accounts were not credible.
Through no fault of the tribunal, there was no face-to-face encounter between it and the couple at which the credibility issues could have been addressed, the judge said.
Overall, the couple had made out a sufficient case that their applications did not receive the detailed careful consideration they deserved, he said.
He was not saying their story had to be accepted, but merely that it was not simply a bald story that was wholly uncorroborated.
There were, for example, documents in respect of the fines imposed on them and confirming the gynaecological procedure the wife underwent, he said.
