RTE reports today that four Leaving Cert students have been refused an injunction by the High Court forcing the HSE to fund their return to school in Dublin. According to RTE, “the four, who arrived in Ireland from Africa as unaccompanied minors two years ago, were moved to adult accommodation for asylum seekers in Galway when they reached the end of the school year and had turned 18”.
The Irish Times states that they “are seeking a High Court injunction requiring the HSE to put into place an appropriate aftercare plan, including the provision of finances, that would allow them to complete their Leaving Certificate examinations at the schools in Dublin they previously attended. The injunction would remain in place pending a full hearing of their action”.
The strong divergence in views between the HSE and the applicants was encapsulated in the key arguments presented by counsel today (taken from the Irish Times):
“Mel Christle SC for the girls said that after they turned 18 earlier this year, they were moved to Galway after finishing fifth year at their schools in Dublin. Mr Christle said that the move went against the advice of staff in the schools in both Dublin and Galway.
He added that if the four were Irish citizens, they would never have been moved from one location to another in the middle of their Leaving Cert cycle. One of the girls had been doing well in her studies in Dublin, she had earned Gaisce awards and had come to regard her teachers and friends in Dublin as “her family.”
Mr Christle said the four students would be regarded as vulnerable. After being moved from Dublin to Galway during the summer they were provided with adult accommodation and an allowance of €19.10 a week.
Opposing the application, Felix McEnroy SC for the HSE told the court that an injunction should not be granted. Mr McEnroy said the HSE was being asked to provide “private choices” for the four with “public funds”.
There was no legal basis for this, he said, adding that their vulnerability was being “overstated”.
Mr McEnroy also said the students were no longer in care as they were now adults.
However the HSE had clear procedures in place for the transition of “aged out” minors from the care system. He added that in the current climate of cutbacks, the HSE had to do the best it could with what it had.”
According to RTE,
Mr Justice Barry White said there was not a sufficiently high degree of certainty that they would win their case at a full hearing and could not give an order to move them back to Dublin in the meantime. The judge said his function at this stage of the court proceedings was to apply the law and not to comment on or impose social and humanitarian policy.
He also refused an order preventing the HSE from withdrawing their €19 per week allowance and their medical card if they voluntarily leave their accommodation in Galway.
It is not immediately clear from existing media reports what the bases of the applicants’ case is. I will simply highlight, therefore, a number of issues that may arise during a fuller hearing of the issues.
First, unfortunately for the complainants, as they are over 18, they are very unlikely to be able to rely on Article 42.4 following on from the holding in Sinnott v Minister for Education  2 IR 545.
In that judgment, a majority of the Supreme Court took the view that the State’s duty to provide for free primary education applies to children only, not adults, and that the duty ceased to apply even in the case of a person with severe mental handicap once the age of 18 was reached. In doing so, the judges argued that Article 42 located education in the context of the family and that the word ‘child’ had a clear age-related meaning in this context. While any age would be arbitrary to some extent, the age of 18 was reasonable as the age at which society no longer treated a young person as a child.
Article 2, Protocol 1 ECHR provides greater hope. This provision states that: “No person shall be denied the right to education”. The European Court of Human Rights has held that, while this does not amount to a positive duty to provide any particular type of education, if education is provided it must be available to all (the Belgian Linguistics Case). Art. 2, Prot. 1 would appear to apply to all levels of education, including higher education (see, e.g., Sahin v Turkey). Thus, where such education is interrupted as a result of state action (or in this case, effectively withdrawn), this will constitute an interference with that right. Where any State state provides educational opportunities and facilities, it will be under an obligation to afford an effective right of access to them. Section 3(1) of the ECHR Act 2003 provides that “every organ of the State shall perform its functions in a manner compatible with the State’s obligations under the Convention provisions”.
The refusal to grant an injunction is problematic from a range of perspectives, not least due to the significant impact that such an interruption in the applicant’s education is likely to have on them. The information set out in the media reports does not address whether this was a factor given strong weight by the judge. Rather, he stated that he had to have regard for the undesirability of the courts interfering in day-to-day issues of a statutory body and said that he had to be mindful of the efficient use of the scarce resources of the HSE.
Today’s decision focused solely on the question of the appropriateness of an injunction. The case remains to be heard on its merits. No doubt, both the hearing and the ultimate judgment will be the subject of extensive discussion given the hugely important issues – including education rights, welfare provision and the rights of asylum-seekers – that arising in the proceedings.