The applicants were a Chinese husband and wife from Fujian province. The wife was born in 1975 and the husband in 1977. She gave birth to a son in August 1998, in secret, because the father was not then at the minimum age to marry which was 22 years. They married in January 1999, when he had reached the minimum age. On registering the marriage, it was discovered that the wife was again pregnant and the Family Planning Commissioner informed them that the child must be aborted. They went into hiding and their second son was born on 1 August 1999, following which the wife returned home. On 24 August 1999, the wife was forcibly taken to hospital and was permanently sterilised by cutting her fallopian tubes. The couple were also charged in relation to the births and fined 8,500 Yuan in respect of the unplanned birth before the legal permitted age and 16,600 Yuan in respect of the second birth which was contrary to legal permission. The Family Planning authorities returned, seeking to take the husband for sterilisation, whereupon the couple fled to Fuzhou city. They could not register with the authorities there without the required documentation and were unable even to return to the husband’s area to procure the documents. They left their children in the care of the husband’s parents. The applicants fled China on 15 February 2000 and arrived in Ireland in April 2000. They lived and worked in Ireland until detected by gardaí in November 2005 when they applied for asylum. They claimed that if they were returned to China, the authorities would make an example of them because of their early marriage and early birth of children, they would be exposed to wide publicity and regarded as outcasts, the husband would be forcibly sterilised and their children would be adversely affected.
Their applications for asylum were refused at first instance by the Refugee Applications Commissioner on the basis that applications lacked credibility and the country of origin information did not support the claims. There was a finding in each case pursuant to s.13(6)(c) of the Refugee Act 1996, that the husband and wife had not applied for asylum on arrival in Ireland, and in the wife’s case, there was an additional point that she had previously applied for asylum in the United Kingdom. They appealed to the Refugee Appeals Tribunal. By decisions dated 27 January 2009 the Refugee Appeals Tribunal refused their appeals. The Tribunal repeated and upheld the credibility findings of the Commissioner. The Tribunal did not accept that the husband’s stated fear that he would be forcibly sterilised, if returned, was well-founded by reference to country of origin information relating particularly to his home province and also generally in regard to the position in China. The Tribunal also held that the applicants could not be considered members of a particular social group within the meaning of s.2 of the Refugee Act 1996 as amended, and they had therefore failed to establish a Convention reason on which they could rely on claiming asylum.
The applicants instituted judicial review proceedings challenging the decision of the Refugee Appeals Tribunal. By judgments of 1 October 2014 (in respect of LRC) and 10 October 2014 (in respect of SJL), Barr J. quashed the decisions of the Refugee Appeals Tribunal. Barr J. also certified that the cases raised questions of exceptional public importance such that it was in the public interest that an appeal be brought, and certified the following questions for appeal by the Tribunal:
- Whether people who, contrary to the one child policy in China, have had more than one child without permission, are members of a ‘particular social group’ for the purposes of s. 2 of the Refugee Act 1996 and/or Article 10 of the European Communities (Eligibility for Protection) Regulations 2006 and/or Article 10 of the Qualification Directive;
- Whether the fact that a person is a parent of more than one child born in China without official permission is a ‘shared characteristic’ for the purposes of Article 10.1(d) of the Qualification Directive or Article 10(1)(d)(i) of the European Communities (Eligibility for Protection) Regulations 2006;
- Whether the breach of a law of general application, and in particular the law providing for the ‘one child policy’ in China constitutes a ‘common background that cannot be changed’ or a ‘characteristic that is so fundamental to identity or conscience that a person should not be forced to renounce it’ within the meaning of Article 10 of the Qualification Directive and/or Regulation 10 of the European Communities (Eligibility for Protection) Regulations 2006.
The Court of Appeal (Ryan P., Peart and Hogan JJ.) dismissed the Tribunal’s appeal, rejected the Tribunal’s argument that a strict and narrow definition of the concept of a particular social group should be adopted. The Court of Appeal said that this provision was not intended to be restrictive, but rather the opposite. That did not mean that it was to be expanded beyond its proper meaning, but it did justify the court in choosing a broader and more generous interpretation as between meanings that were equally legitimate. The Court of Appeal said that the applicants could not be excluded from consideration of membership of a particular social group because of impossibility of compliance with the definition. In regard to the perception of the group by surrounding society, the court said that that was a matter for evaluation of the relevant evidence and it is not susceptible of an exclusionary a priori judgment.
The Court of Appeal said that a particular social group may be defined as comprising persons who breach an unjust law and are exposed to punishment or to social pariah status by the surrounding society. There are crucial factual issues as to whether and how the law is enforced which must also be considered. The court held that the applicants made out a sufficient case that their applications did not receive the detailed careful consideration that they deserved. The story advanced by the applicants did not have to be accepted, but it was not simply a bald story that was wholly unconfirmed or uncorroborated and the material they produced and their explanations required a more elaborate review and an explanation as to how and why it was to be rejected.