DECISION AND REASONS
1. This appeal is made against the decision of the Secretary of State to refuse an asylum claim made by the appellant effectively on behalf of her son who suffers from albinism, he being now 7 years old. She came to this country some years ago from Nigeria and there is no question but that she overstayed. Nonetheless her claim was made on the basis of persecution that she said would be occasioned to her son were she to be returned to Nigeria, and that persecution would result from his albinism. 2. The refusal of the claim, which was in addition put on the basis of Article 8, first came before Judge Canavan in August 2013. That decision found in her favour under Article 8 and accepted that because there would be sufficient interference with the appellant's Article 8 rights the requirement that she should not be returned because it would be disproportionate was accepted. The appellant appealed against that on the basis that her claim for asylum had been rejected and should have been granted. The Secretary of State sought to cross-appeal on the basis that the Article 8 claim should not have been allowed but permission was not granted to cross-appeal and it was not pursued. 3. The fresh appeal was considered by Judge Bruce on 5 December 2013. That was of course an appeal to this Tribunal because there had been already the adverse decision of Judge Canavan on this point and Judge Bruce sitting as a Deputy Judge in this Tribunal decided that that appeal should not be allowed. There was then an appeal to the Court of Appeal. Leave to appeal was refused initially by a single Lord Justice but on a renewed hearing was granted and in the result the matter was remitted for reconsideration by this Tribunal and that is the situation that we are dealing with. 4. It is important to note some of the findings of both First-tier Judge Canavan and Judge Bruce because, as has very properly been accepted by Mr Melvin, it is not for us to go behind any positive findings made in favour of the appellant. 5. There was before Judge Bruce a report from a Miss Ariyo who had considerable experience in Nigeria. She dealt with the view that was formed generally of albinism. There are it seems a very significant number of albinos in Nigeria. It was put as high as 6,000,000 in one of the reports but that may be an exaggeration. But certainly one is talking almost certainly in terms of over 1,000,000 out of a population we are told of something in the order of 200,000,000. But there is a general discrimination against albinos. This is based upon a view formed by many that albinism is a curse bestowed upon a family as a result of some form of witchcraft which persists in the nature of albinos. There is a further difficulty, albeit perhaps not one which is particularly general, namely that in some cases albinos have been murdered because it is believed that their body parts will bring benefit to others and this, as we say, has undoubtedly resulted in some attacks. 6. It is not entirely clear what the extent of that is. We are told in the whole of Africa there is no evidence of more than some 100 or so deaths resulting from that but there is some expert evidence which has recently been provided which indicates that there is a danger that this is on the increase because the body parts of albinos can produce very significant financial advantage to those who supply them. 7. However, it cannot we think be said that this is something which is of general application and the question arises as to whether that which undoubtedly would amount to persecution or fall within Article 2 of the Convention on Human rights is sufficiently of a real risk as to justify on that basis a finding that there will be persecution, 8. We say a finding that there will be persecution because it was accepted in the earlier decisions that albinos could be regarded as a social group. That must be right. Therefore if there is a failure to provide necessary protection against persecution, if there is persecution, then there is a proper basis for finding that they are refugees and it is again common ground that the test to be applied in deciding on persecution is very much the same test as would apply to decisions whether there is a breach of Article 3 of the Human Rights Convention and persecution and conduct under Article 3 are put on the same basis. 9. As we say, there is no question but that there is discrimination against albinos and that were he to be returned to Nigeria the appellant's son, now aged 7, would be exposed to such discrimination. It follows that at school, because he would need of course to have education, he would suffer from those who regarded albinos as persons who suffered from some taint, which meant that they were to be regarded as lesser beings as a result. 10. Equally there is a finding in the previous judge's decisions because Judge Bruce agreed with Judge Canavan essentially in her findings that, and I quote from paragraph 37 of Judge Canavan’s decision: “The background evidence and expert evidence are consistent in showing; that albino people are the subject of widespread societal discrimination in areas such as education and employment and may often be ostracised by their families and the community. The evidence also shows that according to some cultural and belief systems in Nigeria albino people are believed to be endowed with certain powers. There are reports that some albinos have been kidnapped and killed for ritualistic purposes.” 11. Reference was made to Miss Ariyo's report and it was accepted that the appellant was likely to have a subjective fear that both she and her son would suffer from discrimination in a wide number of areas as a result of his albinism. It was further accepted that the Nigerian authorities were not likely to be able to provide effective protection to the appellant and her son against ongoing discrimination or the risk of more serious harm arising from potential ritualistic abuse. 12. Judge Canavan went on to approach the matter on the basis that what was important was the question of access to education and employment and, if the result of discrimination was that access to education and employment was compromised, then that would fall within a definition of persecution and that followed in fact from consideration of an approach which has been accepted generally. But the question as again Judge Canavan posed was how seriously the prejudice might affect a person and that would depend on their personal circumstances. 13. One has to look at this from the point of view of "N", the child. He it must be borne in mind has so far, and he is now 7 years old, been living in this country where there is not the general antipathy to and discrimination against albinos. Thus, if he goes to Nigeria he will find himself in a society which on the findings of the judges and on the evidence is one where there is a general discriminatory approach to those suffering from albinism. That is something which is bound to have a particular effect upon him. Equally it is not suggested that his mother would not send him to school. There was evidence apparently that a number of parents did not send their albino children to school thinking that there was not any point because albino children would not get anywhere anyway, as a result of the approach that there was in Nigeria. That we have no doubt is not an attitude that his mother would follow. 14. Nonetheless, it seems to us to be certainly within the realms of a real risk that he will suffer bullying and unpleasant actions whether or not they amount to physical violence from fellow pupils, and certainly a general adverse attitude from the public at large, something which we do not doubt, he will find difficult to follow and which will affect him far more deeply perhaps than a child brought up in Nigeria exposed to that sort of attitude and no doubt so far as possible protected by his family and not expecting anything else from where he grows up than that sort of attitude. It will for "N" be something entirely new. 15. The Convention on the Rights of the Child is clearly a relevant consideration that this Tribunal and indeed all who deal with asylum issues should take into account, and it is clear that a child could be at risk of persecutory harm contrary to the Convention in circumstances where a comparably placed adult would not be at such risk. The contrary is not I think argued by Mr Melvin who makes the point that the findings of both judges below cannot be criticised on the basis that they adopted a proper approach and that what would be suffered was not sufficient to amount to persecution. He submitted that the risk of ritual slaughter which is really what it amounts to was not such as could properly be said to amount to a real risk as opposed to a remote possibility, and to that extent we are inclined to agree. 16. But as the UNHCR has observed in its Guidelines, ill-treatment which may not arise to the level of persecution in the case of an adult, may do so in the case of a child, and the child's youth immaturity, vulnerability etc will rightly be related to how that child experiences or fears harm. 17. In