JA v The Secretary of State for the Home Department

A child’s particular vulnerability must be a starting point when assessing whether prospective ill-treatment amounts to persecution. Harm which would not reach that threshold for a comparably placed adult may do so for a child, because youth, immaturity and personal experience affect both the impact and fear of harm.

Widespread discrimination may amount to persecution when its likely individual effect, the real risk of bullying or worse, and the absence of effective state protection are assessed together. The assessment remains fact-sensitive and does not establish a general entitlement to refugee protection for all persons sharing the characteristic concerned.

The appellant, a Nigerian overstayer, claimed asylum effectively on behalf of her seven-year-old son, who has albinism. The claim alleged that he would face discrimination, bullying, possible ritualistic abuse and inadequate protection if returned to Nigeria.

First-tier Tribunal Judge Canavan rejected the asylum claim but allowed the appeal under Article 8. The Upper Tribunal, constituted by Judge Bruce, dismissed the subsequent asylum appeal. Following a successful renewed application for permission in the Court of Appeal, the case was remitted to the Upper Tribunal for reconsideration.

The Tribunal was bound by favourable earlier findings concerning discrimination against persons with albinism and the likely absence of effective protection. The central issue was whether the individual risk to this child amounted to persecution.

1. Appeal allowed. The appellant and her son were entitled to protection under the Refugee Convention. The Tribunal also recorded that the appeal was allowed on asylum and humanitarian-protection grounds.

2. The risk of ritual killing or removal of body parts was not, on the evidence, a real risk rather than a remote possibility. That finding did not determine the appeal. The established widespread discrimination, the likely absence of effective state protection, and the serious personal effect of that discrimination required separate assessment.

3. The Convention on the Rights of the Child was a relevant consideration. A child may face persecutory harm where an adult in comparable circumstances would not. The Tribunal approved Lady Hale’s observations in E v Chief Constable of the Royal Ulster Constabulary [2009] I AC 536, although it recognised that those observations were obiter. A child’s youth, immaturity and vulnerability affect the severity of ill-treatment and the assessment of protective obligations.

4. There is no requirement that discrimination must prevent access to education or employment before it can constitute persecution. The decisive question is its likely effect on the individual. This child had been born and brought up in the United Kingdom and had not previously encountered the discriminatory attitudes found in Nigeria.

5. There was a real risk that, at school and in society, he would suffer bullying, adverse treatment and the experience of being treated as a pariah. In the absence of effective protection, the likely cumulative effect on him was sufficiently grave to amount to persecution. The conclusion was close and depended on his particular circumstances; it was not a general ruling for all persons with albinism returning to Nigeria.

• Upper Tribunal (Immigration and Asylum Chamber): On remittal, allowed the appeal on asylum and humanitarian-protection grounds: [2016] UKUT 560 (IAC).

• Court of Appeal: A renewed application for permission to appeal was granted after initial refusal by a single Lord Justice. The matter was remitted to the Upper Tribunal. No citation is stated.

• Upper Tribunal: Judge Bruce, sitting as a Deputy Judge, dismissed the asylum appeal on 5 December 2013.

• First-tier Tribunal: Judge Canavan rejected the asylum claim but allowed the appeal under Article 8. The Secretary of State did not pursue a cross-appeal after permission was refused.