We recently discussed the Court of Appeal decision in Re G (A Child) (Child Abduction) in which Kim Lehal, a partner in our family law department, represented the charity reunite. The Court of Appeal ruled that a child who is included on their parent’s asylum application can be returned to their home country under a 1980 Hague Convention application. However, if a child makes an application in their own right, no steps to return the child can be made until the asylum application process is concluded. The Supreme Court has overturned this decision, ruling that a child who can objectively be understood to be an applicant for asylum cannot be returned to the country from which they have sought refuge before their asylum claim has been decided.
The facts of the case have been described in our previous blog post.
The reasons behind the Supreme Court’s decision
In delivering the unanimous judgment, Lord Stephens examined UK asylum law, noting that it derived from a patchwork of international, EU, and domestic provisions. In basic terms, the law states that people who have a well-founded fear of persecution in their country of nationality have a right not to be returned to that country (known as refoulment). This right is subject to limited exceptions; thus Article 33(2) of the 1951 Refugee Convention provides that:
“The benefit of the present provision [i.e. Article 33(1) referred to above] may not however be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgement of a particularly serious crime, constitutes a danger to the community of that country.”
Exceptions to the right not to be refouled did not apply to the child or her mother in this particular case.
The Supreme Court stated that if logic dictates, an asylum application made by a parent which includes a child is also an application by the child. Any grounds for fearing persecution are likely to apply to their child (or children) and an omission by the child to make an application in their own right cannot be determinative.
Lord Stephens went on to say that whilst the High Court can make a return order under the 1980 Hague Convention, no such order can be implemented until the Home Secretary decides on the asylum application.
“…the 1980 Hague Convention proceedings are separate from the asylum process. Frequently, the same factual background forms the basis for both (i) an application for asylum by a child and (ii) a “defence” to an application for a return order under article 13(b) (grave risk to the child). In determining an application for a return order under the 1980 Hague Convention, the court does not impinge in any way upon the Secretary of State’s exclusive function in determining refugee status. Rather, information in the 1980 Hague Convention proceedings and the court’s decision may inform the determination by the Secretary of State of a person’s asylum claim or as to whether the Secretary of State revokes refugee status. Similarly, information available to the Secretary of State such as country background information (though in this case that information is publicly available) and the decision of the Secretary of State may inform the court’s decision in the 1980 Hague Convention proceedings."
Guidelines applicable to cases where there is a concurrent asylum application and1980 Hague Convention application relating to the same child
The Supreme Court set out a series of guidelines that should be followed in cases where there are concurrent asylum applications and 1980 Hague Convention applications related to the same child.
- As soon as it is known that there are related1980 Hague Convention proceedings and asylum proceedings it will generally be desirable that the Secretary of State be requested to intervene in the 1980 Hague Convention proceedings. The Secretary of State does not need to be joined as a party to the 1980 Hague Convention application.
- There should be a liaison appointed who has a clear line of communication between the Court and the Secretary of State. Papers that have been provided to the Secretary of State should be disclosed to the child’s representative.
- The Home Office initiative of establishing a specialist asylum team to which cases of this nature are assigned as soon as it is appreciated that there is an overlap with the 1980 Hague Convention proceedings is endorsed.
- Documents related to the 1980 Hague Convention proceedings should ordinarily be made available to the Secretary of State.
- The Court should consider early on whether asylum documents should be disclosed in the 1980 Hague Convention proceedings or whether they should be kept confidential. In doing so, the Court should apply the balancing exercise set out in In the matter of H (A Child) (Disclosure of Asylum Documents. One important consideration is whether the asylum seeker’s fear of persecution is derived from the left-behind parent.
- The Court and the Secretary of State should aim to co-ordinate the separate proceedings to expedite the decision-making process.
- In cases linked to1980 Hague Convention proceedings, consideration should be given to ensuring that any asylum appeal or any asylum judicial review be assigned, in England and Wales and Northern Ireland, to a Family Division High Court judge (though not the same judge conducting the 1980 Hague Convention proceedings). In Scotland, the matters should be assigned to a judge from the Court of Sessions who has experience in family cases.
- The High Court should preside over and co-ordinate both proceedings until they have been concluded.
The Supreme Court has provided welcome clarity on how matters involving asylum applications which also have a concurrent1980 Hague Convention case are to be managed. It also ensures that children who are named on their parent’s asylum application cannot be refouled simply because they have not submitted an independent asylum application. Although a decision concerning the 1980 Hague Convention can be made by the High Court, no action on that ruling can occur until the asylum application has concluded.
Kim Lehal is a Partner in our family law department. She is on the International Child Abduction and Contact Unit (ICACU) and Reunite panels of recommended lawyers. Kim is also a founding member of the Child Abduction Lawyers Association. To contact Kim for more information about her role in this landmark decision and/or advice on an international family law matter, please phone 01788 557670, 07972621070 or email firstname.lastname@example.org.