The Supreme Court has held that a child named as a dependant on her parent’s asylum claim who could objectively be understood to have made a request for international protection had protection from refoulement pending the determination of that application with the result that until then a return order in proceedings under the Hague Convention on the Civil Aspects of International Child Abduction 1980 cannot be implemented. The appeal turned on the relationship of the Hague Convention, an international agreement incorporated into UK law which enables the prompt return of a wrongfully abducted child to his or her country of habitual residence, to asylum law. An eight-year-old girl, “G” was born in South Africa where she has been habitually resident all her life. But in March 2020, G’s mother, the appellant, wrongfully removed G from South Africa to England, in breach of G’s father’s rights of custody. G’s father, the respondent, applied for an order under the Hague Convention for her return to South Africa. But the mother opposed his application on the ground, in particular, that there is a grave risk that return would expose G to physical or psychological harm or otherwise put her in an intolerable situation. G’s mother identifies as lesbian, alleging that after coming out and separating from the father her family subjected her to death threats and violence. On her arrival in England, the mother applied for asylum on the basis of her fear of persecution by her family.
G did not make an asylum application in her own right. However, her mother put her as a dependant on her asylum application. Asylum law is constructed on the principle that the refugee is protected from being returned to the country in which she has a well-founded fear of persecution and the unlawful return of a refugee is known as “refoulement”. The core question in the appeal was whether G was protected from refoulement as a result of being listed as a dependant on her mother’s asylum application, such that she cannot be returned to South Africa pursuant to the Hague Convention proceedings until the asylum application is determined. If so, the point raised the question of how those proceedings and the asylum claim can be coordinated. An asylum claim can take months, if not years, to resolve, and the Hague Convention requires the prompt determination of an application for the return of an abducted child (which means, in this context, within six weeks). There is thus a real risk that by the time the asylum claim has been determined, the relationship between the child and the left-behind parent will be harmed beyond repair. There is also a real risk in cases of this type that the taking parent will seek to achieve that objective by making a sham or tactical asylum claim. All of the articles of the 1980 Hague Convention relevant to this case, save for article 20, were expressly incorporated and given the force of law in England by section 1(2) of and Schedule 1 to the Child Abduction and Custody Act 1985.
Court of Appeal
The Court of Appeal held that a child listed as a dependant on an asylum application has no protection from refoulement, but that if G had made an application in her own right, she could not be returned prior to the determination of her application. It concluded that there was no bar to ordering G’s return to South Africa. The mother appealed against that decision.
The central questions for the Supreme Court were whether the Hague Convention and the Refugee Convention 1951 and the relevant EU Directives occupy different canvasses and – if not – how they can operate hand in hand in order to achieve the objectives of each of them without frustrating the objectives of either of them. In summary, the issues were (i) can a child that is named as a dependant on a parent’s asylum application – but has not made a separate independent application for asylum – have protection from refoulement pending the determination of that application? (ii) can a return order be made under the Hague Convention even where a child has protection from refoulement? (iii) should the High Court be slow to stay a Hague Convention application before the determination of an application for asylum? There were six interveners in these proceedings. Notably, the SSHD, International Centre for Family Law, Policy and Practice, Reunite International Child Abduction Centre, Southall Black Sisters, United Nations High Commissioner for Refugees and International Academy of Family Lawyers all intervened; the third, fifth and sixth intervened by way of written submissions only.
The Supreme Court
The court substantially allowed the mother’s appeal. Lord Stephens gave the judgment – with which Lords Lloyd-Jones, Hamblen, Leggatt and Burrows agreed – and held that a child who can objectively be understood to be an applicant for asylum cannot be returned to the country from which he or she has sought refuge prior to the final determination of the asylum claim. The case was remitted to the High Court for the reconsideration of the Hague Convention application on that basis.
As to the legal landscape governing asylum applications, Lord Stephens stated in the UK the legal procedures for identifying refugees and protecting refugees from refoulement are derived from a patchwork of different sources including the 1951 Convention, European Union law, domestic legislation, regulations and rules and domestic law incorporating EU and ECHR legal obligations. The 1951 Geneva Convention is the starting point and article 1(A)(2) contains the definition of a “refugee”. Article 33 has a “Prohibition of Expulsion or Return (‘Refoulement’)” and an individual who satisfies the definition of article 1A(2), because they have a well-founded fear of persecution in their country of nationality, has – subject to limited exceptions – the right not to be refouled. That right does not depend on whether they have been granted status as a refugee. An individual who can be understood to be seeking refugee status is therefore protected from refoulement.
Child named as dependant
Lord Stephens said that an asylum application which lists a child as a dependant is also an asylum claim by that child if objectively it can be understood as such. That will normally be the case. The adult’s grounds for fearing persecution are likely to apply to their child, and the court relied on the SSHD’s point in this proceedings as intervener that in the case of a child, it is the parent applicant who determines, on behalf of their child, whether to make a claim for asylum. As the court said in agreement, therefore:
117. … An omission by a child to make an application in their own right cannot therefore be regarded as a choice which the child has made (even if he or she has legal capacity to make it). Understanding an application for refugee status or other international protection which names a child as a dependant as including an application by the child accordingly protects the interests of the child by ensuring that the child’s own status is considered. Such separate consideration is necessary not least because, if the principal application is granted, the kind of residence permit for which the child is eligible depends on whether or not the child is a refugee or in need of international protection in his or her own right.
A dependant who could objectively be understood as being an applicant was entitled to rely on article 7 of Directive 2005/85 which ensured non-refoulement of a refugee who was awaiting a decision, and on paragraph 329 of the Immigration Rules which requires that no action be taken on their departure from the UK before the SSHD’s determination, so that a return order could not be implemented pending determination by the SSHD. It was clear to Lord Stephens that the Court of Appeal had lost sight of the law and its view on Laws LJ’s judgment in Re S (Child Abduction: Asylum Appeal)  EWCA Civ 843 was clearly misplaced. Taking a contrary view to Hickinbottom LJ’s approach at para 140 of the Court of Appeal’s judgment, Lord Stephens said:
132. I do not consider that Laws LJ in In re S 2002 “intimated” that paragraph 329 of the Immigration Rules does not relate to the rights of a refugee … Laws LJ recognised by reference to paragraph 329 that “Dependants are indeed protected by the law when a claim for asylum is made by mother or father”. Rather, his reference to family life and article 8 of the ECHR was in relation to “the position of such dependants pending an appeal by the principal asylum seeker”.
The court noted that on behalf of Reunite it was submitted that a return order was not a form of “refoulement” but rather the court was determining whether the child wished to remain in the UK. Lord Stephens did not consider such an approach can be correct as it ignored the substantive effect of a return order which is that the child is being returned to the country from which they seek refuge. He judged that the “obligation in article 7 binds the State in its entirety so as to preclude any emanation of the State (including the High Court) from implementing a return order so as to require an applicant to leave the United Kingdom whilst their asylum claim is being considered by the ‘determining authority’.” Moreover, Lord Stephens added that:
133. I agree with the Court of Appeal judgment at para 130 that it is not now possible to construe section 77 of the 2002 Act as fully transposing article 7 of the Procedures Directive. Section 77 did adopt the construction of section 15 of the Immigration and Asylum Act 1999 set out in In re S 2002 by the insertion into section 77, after the reference to removal etc, of the words “in accordance with a provision of the Immigration Acts”. However, asylum applicants are able to rely upon the right within article 7 of the Procedures Directive to be allowed to reside in the UK during the pendency of their application on the basis of the Marleasing principle. It is a right arising from a Directive which has been recognised by our courts, so the position has not been changed by the United Kingdom’s exit from the EU.
134. I consider that an applicant has protection from refoulement pending the determination of that application, so that until the request for international protection is determined by the Secretary of State a return order in the 1980 Hague Convention proceedings cannot be implemented. The two Conventions are not independent of each other but rather must operate hand in hand.
His Lordship added that an application for asylum was “pending” until the conclusion of the appeal process in accordance with section 104(1) of the Nationality, Immigration and Asylum Act 2002. He held that:
140. I consider that an application for asylum is pending and will not have been determined until the conclusion of the appeal process in accordance with section 104(1) of the 2002 Act.
152. … there cannot be an effective remedy under an in-country appeal process if in the meantime a child has in fact been returned under the 1980 Hague Convention to the country from which they have sought refuge. Accordingly, an in-country appeal acts as a bar to the implementation of a return order in 1980 Hague Convention proceedings. Due to the time taken by the in-country appeal process this bar is likely to have a devastating impact on 1980 Hague Convention proceedings. I would suggest that this impact should urgently be addressed by consideration being given as to a legislative solution.
Therefore, an in-country appeal acted as a bar to the implementation of a return order in Hague Convention proceedings, but an out-of-country appeal did not. The mother’s first ground of appeal therefore succeeded. Overall, Lord Stephens held:
178. In relation to the first ground of appeal, for the reasons I have given I would allow the appeal to the extent that a child named as a dependant on her parent’s asylum request who can objectively be understood to have made a request for international protection has protection from refoulement pending the determination of that application so that until then a return order in the 1980 Hague Convention proceedings cannot be implemented.
He therefore maintained the order of the Court of Appeal setting aside the stay imposed by Lieven J, the first instance judge, and the court remitted the matter to the Family Division for further consideration of the Hague Convention application.
There was no bar to the High Court deciding the Hague Convention application prior to the deciding the asylum claim, however, and it should be slow to stay Hague Convention proceedings. A reasoned judgment on whether the child should be returned, on the basis of evidence which will often overlap with the asylum claim and which has been tested by an adversarial process, may assist the prompt determination of the asylum claim by the SSHD. Further, the High Court has power to set aside its decision if the asylum claim is successful. G’s mother’s second and third grounds of appeal therefore failed.
Scope of bar
As to the scope of the bar, Lord Stephens said that the court could consider the merits of the Hague Convention proceedings even if the factual issues overlapped with the asylum issues, so long as it did not breach the prohibition against the court deciding the claim for international protection, which was exclusively a matter for the SSHD. Furthermore, if as a result of the asylum decision a reconsideration of the Hague Convention proceedings is needed, the court had power to review and set aside the final order. The Court of Appeal’s conclusion that any bar applied only to implementation was correct. Moreover, the Court of Appeal’s view that the High Court should be slow to stay an application pursuant to the Hague Convention pending an asylum application was also right.
Interplay between proceedings
Lord Stephens gave some practical points as to the interplay between the two proceedings and he pointed out that the starting point is that the SSHD has sole responsibility for both examining and determining claims for international protection as set out in paragraph 328 of the Immigration Rules. Convention and asylum proceedings were related as soon as it became apparent that an application for asylum had been made by a child or a parent, regardless of whether the child was objectively understood to have made an application or had been named as a dependant.
Lord Stephens identified that where proceedings were related several steps were desirable (i) that the SSHD be requested to intervene in the Convention proceedings (ii) ensuring that there was liaison and a clear line of communication between the courts and the Home Office (iii) joining the child as a party to the Convention proceedings with representation (iv) directing that the asylum papers be disclosed to the child’s representative (v) papers in the Convention proceedings should ordinarily be made available to the SSHD (vi) and the court should give early consideration to the issue whether the asylum papers should be disclosed in the Convention proceedings.
He said that all those involved in Hague Convention proceedings, including the SSHD in determining any related application for asylum, must act promptly if the UK is to fulfil its obligations under the 1980 HC. Notably, the SSHD has also proposed an expedited process for determining asylum claims with concurrent Hague Convention proceedings, which is a welcome initiative.
Lord Stephens said that consideration should be given to assigning any asylum appeal or judicial review to a Family Division judge. It is desirable that the High Court should have oversight over and be in a position to co-ordinate both proceedings until both proceedings were concluded. Proposed standard directions were annexed to the judgment as Appendix Two. The Supreme Court said that extensive work was undertaken by counsel in relation to suggestions for standard directions and there was a measure of agreement.
However, there had been no wider consultation and any matters of practice and procedure were not for the Supreme Court. Instead, it was for the High Court to determine its own procedures, which would no doubt take into consideration the matters set out by the Court of Appeal at paras 164 and 166 of its judgment.
Reunite’s argument that a return order is not refoulement per se and is a determination of whether the child wished to remain in the UK failed to impress Lord Stephens who instead stressed that the submission ignored the substantive effect of a return order which is that the child is being returned to the country from which they seek refuge.
The effects of this judgment have been analysed by Dr S Chelvan where he asks whether the Supreme Court’s judgment results in the 1951 Refugee Convention and UK law being used as an international child abductor’s charter, or a pathway to freedom? Dr S Chelvan, who acted for the fourth intervenor Southall Black Sisters, concludes that the refusal of G’s asylum claim on 3 February 2021 (disclosed in Appendix One of the Supreme Court’s judgment) will be challenged extensively in the First-tier Tribunal and “the need to ensure a child-focused procedure to both the Hague proceedings” and the FTT proceedings “will undoubtedly lead to further complex strategic litigation” all over the place. He predicts “a treacherous jurisprudential route-map – one even judicial angels fear to tread”. Only time will tell whether the impact of the Supreme Court’s judgment is to facilitate an abductor’s charter, or to provide a route to freedom from persecution.