The Legal Practitioner


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Review of the decisions of the superior courts in SJL v Refugee Appeals Tribunal

The foundation stone for asylum claims in Ireland and internationally is the Convention Relating to the Status of Refugees, better known as the 1951 Refugee Convention. Article 1 of the Convention, as amended by the 1967 Protocol [1], defines a “refugee” (a successful asylum claimant) as follows:

“A person who owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it..” [2]

This definition has given rise to a body of case law in deciding whether an asylum claimant’s fear of persecution must be due to one of the five enumerated grounds contained in the definition in Article 1 – namely:

  1. Race
  2. Religion
  3. Nationality
  4. Membership of a particular social group
  5. Political opinion.

Of the five grounds listed above, “membership of a particular social group” has given rise to the greatest amount of legal argument, differences in interpretation and controversy. It has been described thus by T. Alexander Aleinikoff:

In recent years, the number and variety of refugee claims based on “membership in a particular social group” have increased dramatically. The Social Group cases have been pushing the boundaries of refugee, raising issues such as domestic abuse, homosexuality, coercive family planning policies, female genital mutilation (FGM) and discrimination against the disabled.

Invocation of the social group category is not surprising. Its potential breadth makes it a plausible vehicle for refugee claims that do not fit within the other categories”.[3]

In relation to the definition of a “particular social group” ground Council Directive 2004/83/EC Article 10.1 (d) (the Qualification Directive) states:

“ a group shall be considered to form a particular social group where in particular:

– members of that group share an innate characteristic, or a common background that cannot be changed, or share a characteristic or belief that is so fundamental to identity or conscience that a person should not be forced to renounce it, and

– that group has a distinct identity in the relevant country, because it is perceived as being different by the surrounding society.”

The recent decisions of the High Court and Court of Appeal in the SJL and LRC v Refugee Appeals Tribunal case constitute the most extensive discussion and analysis of the Irish courts position on the “membership of a particular social group” ground for asylum claims made in this jurisdiction.

The case itself involves 2 Chinese nationals from Fujian province. The wife gave birth to a son in 1998 in secret as the father was not at the minimum age for marriage in China. They married in 1999 and the wife became pregnant a second time, contrary to the “One Child Only” policy then in existence in the state. They were warned that the child must be aborted so they went into hiding. Their second son was born in August 1999. On 24th August 1999 the wife was forcibly taken to hospital and her fallopian tubes were cut thus permanently sterilising her against her wishes. The couple were also charged and fined and the husband was also threatened with sterilisation. The couple fled Fujian province and ultimately made their way to Ireland. They were resident in the state from April 2000 and applied for asylum in November 2005.

The couples claim for asylum was refused by the Refugee Applications Commissioner (“ORAC”) and their appeal of this decision before the Refugee Appeals Tribunal (“RAT”) was turned down. The RAT upheld the findings of ORAC in relation to credibility and Country of Origin (“CoI”) information and also held that the applicants claim that they were members of a social group as a result of their opposition to China’s One Child Policy and therefore entitled to the protection afforded under the 1951 Convention did not stand. The RAT concluded that they were not members of a social group as defined by the 1951 Convention.

The couple instituted judicial review proceedings before the High Court L.R.C. v. Refugee Appeals Tribunal [4] and SJL v Refugee Appeals Tribunal [5]very detailed judgments were given by Barr J in the High Court who certified that the cases gave rise questions of “exceptional public importance”.

Barr J gave lengthy consideration to differing approaches taken by courts internationally. The differing approaches can best be summarised under two different headings:

  1. The protected characteristics’ approach (sometimes referred to as an ‘immutability’ approach), and
  2. The “social perception” approach.

These approaches were previously analysed by Cooke J in AO v Refugee Appeals Tribunal.[6]

Barr J also analysed the UNHCR Guidelines on membership of a particular social group[7]and noted that it was recommended by UNHCR that the two approaches be reconciled in order to avoid protection gaps.

It is generally agreed in the international case law quoted in this case and generally in literature on the subject that membership of a particular social group cannot be exclusively as a result of the persecution threatened or suffered. It has, however, been argued that the persecution of a group can create a socially recognised social group fitting the parameters of the convention grounds.

Thus, there would appear to be two distinct approaches to the question of what can constitute a particular social group. The “protected characteristics” approach which identifies a group by reference to a uniting characteristic which is either immutable or so fundamental to human dignity that a person should not be compelled to change it, and the “social perception” approach which identifies a group by reference to a common characteristic which makes them a recognisable group and sets them apart from society as a whole.” [8]

Barr J also examined case law that was relied upon before him from the Australian, Canadian and English courts. In particular cases relating to claims by Chinese nationals under the same convention ground and similar facts relating to the One Child Policy. Linden the Canadian case of Cheung v. Canada (Minister of Employment and Immigration)[9] observed as follows:

“It is clear that women in China who have one child and are faced with forced sterilization satisfy enough of the above criteria to be considered a particular social group. These people comprise a group sharing similar social status hold a similar interest which is not held by their government. They have certain basic characteristics in common. All of the people coming within this group are united or identified by a purpose which is so fundamental to their human dignity that they should not be required to alter it on the basis that interference with a women’s reproductive liberty is a basic right ‘ranking high in our scale of values’ (E (Mrs.) v. Eve, [1986] 2 S.C.R.


Barr J also gave very lengthy consideration to the findings of the English Court of Appeal in Regina v. Immigration Appeal Tribunal & Anor, ex parte Shah [10] and in particular the dicta of Steyn L.J.

In conclusion, Barr J found in favour of the appellants and in quashing the findings of the RAT dated 27th January, 2009, and directing that the matter be referred back to the Tribunal for a fresh determination in light of the COI submitted on behalf of the applicant he stated:

The applicant and his wife can be seen as part of a social group defined as people who, contrary to the one child policy in China, have had more than one child without permission. The shared characteristic is that they are parents of more than one child born in China without official permission. This characteristic cannot be changed by the applicants. In that capacity, it is arguable that they face persecution in the form of forced sterilisation (already carried out on the wife and threatened against he husband); large fines; loss of employment; and discriminatory treatment such as discrimination in relation to medical and educational benefits.”[11]

The judge granted a certificate entitling the State to appeal on the basis of the three points relating to membership of a ‘particular social group’, ‘shared characteristic’ and ‘characteristic that is so fundamental to identity or conscience that a person should not be forced to renounce it’.

The Court of Appeal in hearing the state’s appeal also considered the Canadian, Australian and English case law as reviewed by Barr J together with the Irish authorities.

In reviewing same, Ryan J observed as follows:

In light of the various authorities, I think it is impossible to adhere to a strict and narrow definition of a particular social group. It is also important that we are not considering a provision intended to be restrictive, but rather the opposite. That does not mean that it is to be expanded beyond its proper meaning, but it does justify the court in choosing a broader and more generous interpretation as between meanings that are equally legitimate.”[12]

This is a strong and definitive statement in relation to the law on the definition of “particular social group” and the position 0f the Irish superior courts on an area that his given rise to great debate as seen above. It is very welcome that the Court of Appeal approached this question using a broad and not a restrictive interpretation. This approach is grounded in the application of fundamental human rights in a balanced and fair manner.

Considering the dearth of discussion and litigation in this crucial area of Asylum law, the detailed and careful analysis carried out by both Barr J in the High Court and the three judges of the Court of Appeal have laid a strong foundation for the interpretation of this crucial ground for asylum claim.



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Marriage is deemed to be a legally binding contract entered into between two parties which is capable of being dissolved on the granting of a Decree of Divorce.

Section 5 of the Family Law (Divorce) Act, 1996 and Article 41.3.2 of the Constitution make provisions in law for the exercise of the court’s jurisdiction to grant the Decrees of Divorce and to make various other related orders which are often referred to as ancillary orders.

In Ireland, both the Circuit Court and the High Court have original jurisdiction to hear the divorce proceedings.

By way of an example, one of the most recent Divorce proceedings that our firm acted in was initiated in the Circuit Court as the value of the family assets did not exceed €1 million. The husband was a successful businessman and the wife assisted him in building up the family business by being involved in most aspects of the management of the business as well as looking after their children. They were married for 21 years and had 4 children, one of whom is 19 years old and in college. This case involved a number of issues such as the division of marital assets, access and maintenance in respect of the children and the division of pension assets.

Before a court can grant a Decree of Divorce, the court must be satisfied that:

  1. Either one of the spouses is domiciled in the Republic of Ireland on the date of the commencement of Divorce proceedings, or either of the spouses has lived in the Republic of Ireland for a year before commencing Divorce proceedings.
  1. That both spouses have lived separate and apart from one another for a minimum period of 4 out of previous 5 years before the proceedings are instituted. It is not a requirement that the spouses must have lived at separate residences, once it can be established that the spouses have led separate lives from one another. Another point to note is that the period of 4 years does not have to be continuous period of 4 years but can be accumulated.
  2. That there is no reasonable prospect of reconciliation between the parties.
  3. That proper arrangements (financial and otherwise) have been or will be made for the spouse and any dependent child(ren) of the marriage.

In this case, both the husband and the wife were primarily domiciled in Ireland. However the second element outlined at paragraph 2 above has not been met as the parties only lived separate and apart from each other for a period of 3 years at the time the separation proceedings were initiated by the wife therefore the proceedings were issued by way of a Judicial Separation.

The key difference between a Judicial Separation and a Decree of Divorce is that once a Decree of Divorce is granted, it provides the parties with a clean break from each other and entitles the parties to remarry. With a Judicial Separation, the parties are still deemed to be spouses for legal purposes.

Whilst the Judicial Separation proceedings were in train, we made an application for interim access for the children and maintenance for the children and on behalf of the wife. Whilst there was no interim access order made with regard to the eldest child who was 19 at the time, the court granted an interim maintenance order in respect of the eldest child due to the fact that he was still in full time education. In Ireland, maintenance payments with regard to the children do not automatically cease when the child reaches the age of 18. In fact, the maintenance continues to be payable in respect of a child up to the age of 23 as long as the child continues in full time secondary or third level education. The husband was ordered to pay a certain amount per week towards the maintenance of the children and the access arrangements ensured that the days for access were allocated to provide stability for the children. The interim orders remained in place until the full hearing of the proceedings.

When the matter appeared before the Court for hearing of the Judicial Separation proceedings, the relevant time period of 4 years had accumulated for the purposes of a divorce application. We proceeded to issue the divorce proceedings and strike out the Judicial Separation proceedings to save the parties on costs of having to return before the court and also to ensure a clean break between the parties. This was quite unusual however the Court acceded to our request and allowed our client’s application for a divorce on the grounds that the required 4 year period accumulated in the meantime, that there was no reasonable prospect of reconciliation between the parties (even though the parties attempted to reconcile on a number of occasions during the time of their separation, before the proceedings were instituted). The court considered whether the parties’ financial circumstances made proper provision for the children of the marriage and the wife. Given the wife’s involvement in the family business and the fact that she looked after the children to allow her husband to build up the business, the court ordered payment of maintenance by the husband on the same terms as that on the interim orders both for the children and the wife. The wife therefore is also entitled to a payment of maintenance and this shall continue unless she re-marries or her financial circumstances improve. It is important to note that it is not always the case that one party is automatically entitled to the receipt of maintenance from the other. In that regard the court takes into account the parties financial positions at the time of the divorce and a year previous to the divorce. In the present circumstances the Court was satisfied that all the criteria had been met and granted the parties the Decree of Divorce.

Unlike in the UK, the Irish Courts do not consider an element of fault when granting a Decree of Divorce. The Court’s main concern on granting an order for the dissolution of the marriage between two parties is that both parties are sufficiently provided for in terms of the parties’ financial circumstances, the family home is adequately dealt with and the children of the marriage are provided for in accordance with their needs.

Over the years Gary Daly & Company have been involved in some of the most complex divorce proceedings both at Circuit Court and the High Court level which involved issues such as the division of assets both, of personal and commercial nature, well-being of the children of the marriage, domestic violence situations and the division of pension assets.

It is always recommended that both parties avail of legal advice before embarking on one of the most difficult journeys of their lives, in particular where there are joint assets and children of the marriage.

If you are facing marriage difficulties please contact a legal representative who will be in a position to advise you on the suitable options available to you.

First Time Buyer Purchase of Second Hand Home


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Names and details amended to protect client confidentiality.

We have just successfully guided AW and BF through the purchase of their first home. A young married couple who have never owned property before they were renting an expensive apartment when they took the decision to purchase a home for themselves and their future family.

Loan approval in principle

The couple first contacted a mortgage broker who assisted them in figuring out how much a bank was likely to loan them for the purchase of a house. Armed with this notional figure they then began the arduous process of viewing houses and making bids. Eventually, after many failed attempts, they went sale agreed on their dream home.

Booking deposit paid

They contacted our office to give us the details of the proposed purchase – the address of the property, the sale price, the amount of booking deposit paid to the auctioneer, the age of the property, the identity of auctioneers, the likely closing date, the fact that there was an extension on the property and whether this extension had planning permission.

Estimated fees and Outlay

We discussed the process of property purchase from booking deposit stage to completion and registration with our clients. We also gave a detailed estimate of fees and outlay to our clients which included the estimated cost of the Land Registry (Property Registration) fees, searches fees and the stamp duty payable on the property. (NB Stamp Duty is calculated at 1{ff7198f4411e99f999023b30b60f2a7e3cbd51460a64f844af75d40da4d6e647} of the purchase price and must be paid within 30 days of the closing date to avoid penalties and interest accruing.)

Surveyor’s Report

We also advised our clients that when purchasing a second hand property that it is essential that one obtain an independent structural survey on a second hand property. It is a standard general condition in a Contract for Sale that the principle “buyer beware” applies. It is, therefore, imperative that the purchaser seek the services of a surveyor who will carry out a detailed survey of the property. In the event that defects arise following the purchase of the property, the purchaser will not have a right of recourse against the vendor given that you are being provided with an opportunity to carry out an inspection of the Property.


Once the booking deposit is paid the vendor’s solicitors send us the contracts for sale and related documents. We very carefully reviewed the contracts and the copy title and all the relevant planning documents. We also carried out a planning search. It came to light that there was no planning permission for the extension to the side of the property. We wrote to the vendor’s solicitors to raise this and several other issues. We requested that an architect’s opinion be provided by them in relation to the extension. An architect’s opinion was provided. The architect gave his professional opinion that, having considered the dimensions of the extension it was within the exemption size permitted under the planning acts (much to our clients’ relief!)

Solicitor’s loan pack

Once our clients had gone sale agreed we advised them to straight away contact their mortgage broker to provide all the relevant details of the property which they were purchasing. They duly did so. The bank requested that a valuation be carried out and once the valuation report came back to them they were satisfied that they could provide the loan to our clients. A solicitor’s loan pack duly issued to our office for signing by our clients. They then had to make sure all other matters were taken care of including the life policy for each client and of course the building’s insurance.


Completion is always the tricky part of any transaction. It is always difficult to ensure that the loan cheque issues from the bank in time, the vendors are ready to move out and the purchasers are ready to move in (with the help of their furniture movers van). Fortunately the bank forwarded the loan cheque to us in time for a completion on a Friday and we completed the transaction on behalf of our clients in time for them to move in on a sunny Friday afternoon allowing them the whole weekend to get acquainted with their new home.


The job is not finished for our office once our happy clients get their keys. We have completed the purchase with the vendors’ solicitor and we have since sent the documents to the Property Registration Authority for registering the property in the names of our clients. Once the registration process is complete with the Property Registration Authority we will send all the title and planning documents to the bank as they hold the title deeds as security for the mortgage until such time as the mortgage is paid off – or they sell it to upgrade.

We wish them the very best!