19 March 2021: This morning’s Supreme Court judgment [2021] UKSC 9, provides authoritative guidance on how the UK should approach Hague Convention child-abduction proceedings, where the child is a dependent named in an asylum claim of the taking parent. How should Family and Refugee Law practitioners approach these cases, where International Refugee Law places a break to the Hague Convention proceedings?
LORD STEPHENS SCJ, writing for the Court with whom the other Justice agreed (Lord Lloyd-Jones, Lord Hamblen, Lord Leggatt and Lord Burrows SCJJ), provides the first (in what inevitably will be many) judgments to untangle family-law and refugee-law lawyers in determining the procedures to be applied in hybrid Refugee-Hague Conventions proceedings, where the primary consideration must be to focus on the child.
As Lord Stephens said in the live broadcast handing-down the judgment:1
“The appeal raises important questions of law as to the interplay between the 1980 Hague Convention which enables the prompt return of a wrongly abducted to her country of habitual residence, and the 1951 Geneva Convention which protects those entitled to asylum from being returned from the country from which they sought refuge.
There are not only two conventions, but also two separate sets of proceedings and appeals to different Courts. The proceedings under the 1980 Hague Convention are determined by the High Court with the potential for appeals to the Court of Appeal and this Court. Whereas the asylum application is determined by the Home Secretary with the potential for appeals to the First-tier Tribunal, the Upper Tribunal, the Court of Appeal and to this Court. The existence of these two separate course of proceedings, also raises important legal and practical points as to the interplay between them”.
Paragraph numbers to the Supreme Court judgment are in bold and square brackets (‘[**]), unless the contrary is stated.
I - Summary of Judgment:
Where a left-behind parent applies to the UK Courts for return of their child, it is now clear an asylum claim is an absolute bar to enforcement of a Hague return order, until the claim has been either decided by the Secretary of State for the Home Department (‘the SSHD’) (ratio of the judgment), or until all appeal rights have been exhausted (arguably obiter).2 This does not prevent the determination of the Hague return order, but does bar any enforcement of the order, noting a grant of refugee status would act as an absolute bar to return, leading to a “devasting impact [to] the Hague proceedings”.
Allowing the appeal in-part, the Supreme Court held (in summary form):3
- Does a child named as a dependent on a parent’s asylum application have any protection from refoulment? (allowed, where it can be objectively shown as part of the parent’s application in their own right, the child has raised an asylum claim) [124-134], [135-140] and [141-153];
- Can a return order be made under the 1980 Hague Convention even where a child has protection from refoulment (dismissed, the return order can be made, but not implemented) [154-162]; and
- Should the High Court be slow to stay an application under the 1980 Hague Convention prior to the determination of an application for asylum (dismissed, the High Court should not stay proceedings) [154-162].
The proceedings will now be reknitted to the Family Division of the High Court, where determination of the Hague return order can be made, but not implemented until the final determination of the asylum appeal (asylum decision refusing the asylum claim made on 3 February 2021).
The Supreme Court, noting a 30-day timetable proposed to be adopted by the SSHD for a decision to be made following the making of an asylum-claim [6], has strongly recommended the adoption of an expedited asylum appeal (for in-country appeals) and/or judicial review proceedings (for certified decisions).
There is additionally proposed by the Court proactive involvement of a High Court Judge of the Family Division, sitting as a Judge of the First-tier Tribunal (Immigration and Asylum Chamber) (‘IAC’) in determining an in-country asylum appeal to the FtT,, thereby diminishing the impact on the duty of act promptly, as required by the 1980 Hague Convention. The Court emphasized the need to address disclosure in the asylum proceedings, and vice versa, and the need to ensure the child had independent representation in the Hague proceedings [163-177].
Expedition of the asylum proceedings was highlighted by the Court as “needing urgent consideration for a legislative solution” [163-167], and will have to include both Judges of the Family Division of the High Court and the Judges of the IAC, in-hand with rules safeguarding procedural fairness being drafted and accepted by the MOJ’s Tribunal Rules Committee.
Where the system is bound to be the subject of abuse by some using a claim for asylum as a deliberate tool to frustrate Hague return, the rights of the child will be the determining factor, to ensure their welfare and best interests are safeguarded.
The question still posed following today’s Supreme Court judgment: does this result in the 1951 Refugee Convention and UK law being used an International Child Abductor’s Charter, or A Pathway to Freedom?
II - (Brief) Facts of the Case:
G (Appellant mother) is a South African national who wrongly removed her eight-year-old daughter ‘G’ from South Africa, on 2 March 2020. On arrival in the UK, mother claimed asylum based on her fear of persecution in South Africa as a lesbian, naming G as her child dependent on her asylum claim. The mother highlighted in her asylum screening interview and subsequent statement the additional risk to G, as her daughter, from her family due to the acts of violence targeting the mother, as a lesbian.4
G (Respondent father) (a dual South African and EU Member State (EUMS_ national),5 had following his divorce from the Mother been granted in 2018 the South African equivalent of a child arrangements order, where he shared full parental rights and responsibilities in relation to G. G lived with mother, but with extensive contact with father.6
On 11 March 2020, the father, having been informed by the mother through text messages that she had left South Africa with G, applied to the South African Central Authority for the return of G, pursuant to the 1980 Hague Convention. This request was transferred to the English Central Authority, with an application issued on 14 April 2020 in the Family Division of the High Court. The first hearing on 29 April 2020 before Newton J, resulted in a disclosure and location order being served on the mother the next day, with a return date fixed for 15 May 2020.7
Pursuant to the disclosure order, the SSHD confirmed the 2 March 2020 application by the mother, and (incorrectly referred to a separate application) ‘by and behalf of G’.8 The 1980 Hague Convention return date was subsequently adjourned by MacDonald J to 22 May, and 5 June 2020 by Gwynneth Knolwes J, in order for asylum application documents disclosure in the 1980 Hague Convention application and vice versa.9
III - Hearing Before Lieven J, 5 June 2020 Order:
Lieven J considered the above two points, with the additional application for a stay of the Hague proceedings, as the applications for asylum were pending a decision by the SSHD. Both parties accepted G could not be returned to South Africa until the asylum application was determined.10 At [10] pf her judgment, Lieven J granted the stay on the basis this would additionally apply to any appeal pending, “it could be many months, indeed well more than a year, before there is any possibility of this child being returned to South Africa pursuant to the Hague Convention”.
IV - Appeal Before the Court of Appeal:
On appeal from the Family Division of the High Court to the Court of Appeal [2020] EWCA Civ. 1185 (Hickinbottom, Moylon and Peter Jackson LJJ),11 the Court of Appeal had the benefit of the additional written and/or written and oral argument of the SSHD, Reunite International Child Abduction Centre, the International Centre for Family Law, Policy & Practice, and Southall Black Sisters (‘SBS’).
Four grounds of appeal were advanced by the Appellant father to the Court:12
“Ground 1: The judge erred in considering any form of refugee status to be an absolute bar to a return under the 1980 Hague Convention. Alternatively, insofar as there is a bar, it is to the implementation of a return order, not to the determination of the application.
Ground 2: In respect of the application for disclosure of the documents within the asylum file into the 1980 Hague Convention application, the judge erred in relation to their relevance and weight by failing to follow the procedure set out in R v G and H (Secretary of State for the Home Department intervening) [2019] EWHC 3147 (Fam) ("R v G and H").
Ground 3: By staying the 1980 Hague Convention application in the way she did, the judge erred, because such a stay was in breach of article 11 of the Convention which requires the judicial or administrative authorities of Contracting States to "act expeditiously in proceedings for the return of the child". Any derogation from that obligation can only be made after a careful appraisal of any justification, in this case consideration of the bona fides and merits of any asylum claim as it applies to the mother and (vitally) to G, an exercise which the judge did not perform.
Ground 4: The judge erred in failing to consider G's own status within the asylum claim (i.e. whether she had made an application for asylum in her own right, or merely as a dependent of the mother), because different considerations apply to each of those circumstances.”
In determining Issue One (Asylum bars to Hague Convention Proceedings), the Court of Appeal held children with refugee status (bar those granted as dependents under the Asylum Policy Instruction as they are not refugees), cannot be returned to countries from which they have refuge under the 1980 Hague Convention (category 1 children).13
Those children whose applications for asylum are pending, this operates as a bar to enforcement of Hague return during the period for initial decision-making by the SSHD. The EU Directive provisions continue to operate as a bar, notwithstanding the ending of Brexit transition on 31 December 2020 (category 2 children).14 The Court drew on the earlier 2017 authorities of F v M and anor (JCWI intervening) 15 and E v E (SSHD intervening) 16 to provide a jurisprudential starting point, supporting this finding. It is important to note Mostyn J in E v E rejected a ’opening the floodgates’ submission, and until the last twelve months, he was correct to do so. Noting the increase in these hybrid cases in the last year, the question for future Courts, is how to address the potential for abuse of the system?
Where an asylum appeal was pending, not a live issue before the Court, it accepted it had not heard full argument and this would be an issue for the Home Secretary and Parliament, noting “it is our view vital that steps are taken to avoid asylum appeals being used as a tactical device to delay and potentially prevent the return of children under the 1980 Hague Convention” (category 3 children).17
The Court of Appeal, in a departure from the accepted practice, held where the child is named as a dependent to the asylum claim only, then this is not a bar to return of a child under the 1980 Hague Convention, as paragraph 329 of the Immigration Rules prohibiting removal pending final determination of an asylum appeal does not apply to dependents (category 4 children: (Dependent) Child with no asylum application).18
The Court additionally made the following findings (in summary form). (Issue Two) - any bar to removal only operates to bar implementation of the Hague return order, and not the determination of and making of the order.19 With respect to Issue Three, the Court should be slow to stay the determination of a Hague return application, pending the asylum decision.20 Issue Four and the Voice of the Child – the child should be joined as a party to the Hague Convention proceedings.21And lastly, (Issue Five), the SSHD should be fully informed of the steps in the Hague Convention proceedings.22
The Court of Appeal allowed the appeal on Grounds One and Three, refused permission to appeal with respect to Ground Two, and dismissed the appeal on Ground Four.23
V - Appeal Grounds Before the Supreme Court:
The appellant mother advanced three separate grounds of appeal before the Supreme Court:
- “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?”;
- “If a child named as a dependant is protected from refoulement pending the determination of the asylum application, does that protection from refoulement act as a bar (i) to the determination by the Family Division of the High Court of an application for a return order under the 1980 Hague Convention seeking the return of a child to the country of their habitual residence where that child has protection from refoulement, or (ii) to the making of a return order, or (iii) only to the implementation of the return order?”; and
- “If there is no bar to the determination of an application under the 1980 Hague Convention, what approach should the Family Division take in relation to the task of deciding that application? In particular, was the Court of Appeal right to hold that the High Court should be slow to stay a 1980 Hague Convention application?”
The Court noted the Respondent Father had not cross-appealed the finding of the Court of Appeal that there is a bar to implementation of a ague return order if the child is granted refugee status, or an asylum application is pending [14].
The author was instructed as one of the Junior Counsel with Charlotte Baker for Southall Black Sisters (‘SBS’), lead by Alex Verdan QC (instructed by Janet Broadley of Goodman Ray Solicitors), submitting written submissions only.
The Supreme Court summarized SBS’s submissions (as the fourth intervenors) [54]:
“The fourth intervener, Southall Black Sisters (“SBS”), is an organisation which provides advice, resources and advocacy in respect of gender-related violence and discrimination against black and other ethnic minority (mainly migrant) women. SBS supported the proposition that, as a matter of law, a child named as a dependant on a parent’s asylum claim must be afforded the same protection from refoulement as the principal applicant.”
As well as the three other intervenors who contributed to the proceedings before the Court of Appeal, the United Nations High Commissioner for Refugees (‘UNHCR’), and the International Academy for Family Lawyers were given permission to participate as intervenors.
Photo credit: Author
VI Analysis of the Reasoning of the Court:
In allowing the appeal in-part ([2021] UKSC 9), the Supreme Court addressed the three grounds in the following terms (see also Summary Section I of this Note). For the purposes of this Case-Law update, the author concentrates on Ground One, noting this has the greatest scope for highlighting the interplay between the Refugee Proceedings and the Hague Proceedings.
Ground One:
Does a child named on a parent’s asylum application have any protection from refoulment? (allowed, where it can be objectively shown as part of the parent’s application in their own right the child has raised an asylum claim) [124-134], [135-140] and [141-153].
There are approximately 100 1980 Hague Convention applications annually in England and Wales, with no figures for how many within that number are related to asylum applications [6]. Nevertheless, what is clear is where there is an asylum related issue arising in 1980 Hague Convention proceedings, there is, in this author’s opinion, the primacy of the 1951 Refugee Convention over and above the 1980 Hague Convention.
The absolute prohibition on refoulment (‘expulsion or return to a country where they may be persecuted’ [2]) enshrined in not only Article 33 of the 1951 Refugee Convention and 1967 Protocol (‘the Geneva Convention’),24 reflected in the UK’s continuing obligations to EU Directives post-31 December 2020 (i.e. Article 21 of the 2004 Minimum Standards Qualification Directive),25 transposed in UK domestic legislation 26 (including our immigration rules). The prohibition to refoule, in this judgment trumps the 1980 Hague Convention requirement to return a child. This judgment reinforces this underlying rationale of the Geneva Convention and prohibiting implementation of any determined return order, where the child has been recognized by the UK as a refugee [37].
There is of course the absolute ‘safety net’ provision of Artucle3 of the ECHR, accepted within our own domestic case law, reflecting Strasbourg cannon of case law,27 prohibiting return of a foreign national to a country where they would face a real risk of ‘torture, ill-treatment or inhumane and degrading treatment’.
Whilst an application is pending, then both paragraph 329 of the immigration rules,28 and section 77 of the Nationality, Immigration and Asylum Acy 2002 (‘the 2002 Act’) prohibit removal [106].
The key issue for the Supreme Court is where G is a dependent child, and not an applicant, then is she afforded the same protection from refoulment as the primary applicant as a matter of law?
It is important to note the SSHD’s complete U-turn in these proceedings, communicated only a few days prior to the hearing. She would have been expected, in line with her own published policy (Asylum Policy Instruction (‘API’) Dependents and former dependents (May 2014),29 even when a child is only names as a dependent on an asylum claim, she will investigate whether the child is also entitled to refugee status determination (‘RSD’) in their own right, in line with her section 55 of the Borders, Citizenship and Immigration Act 2009 duty to promote the ‘best interests and welfare of the child’ [107-111]. Importantly, the Court accepted an individual is a refugee when they have left their country of nationality (or habitual residence) and fulfil the definition of a refugee contained in Article 1A (2) of the Geneva Convention. On this basis, status declaration is recognition of this pre-existing right, recognized in recital 14 , in-line with recital of the 2004 MSQD EU Directive [86]. The requirement for any negative decision on asylum to give rise of a resolution procedure, pursuant to Article 4 (1) of the 2005 Procedures Directive 30 [93], with Article 7 (1) of the same Directive providing protection from refoulment when this procedure is engaged [94] protecting procedural rights for applicants, and their dependents, pursuant to Article 6 (3) of the 2005 Procedures Directive [95]. In line with the immigration rules (paragraphs 327, 327A, 334 and 349 of the Immigration rules) and the statutory protection mechanisms contained in sections 77, 78, 82 and 104 of the Nationality, Immigration and Asylum Act 2002 [96]-[106] provides the route-map for status determination. Where domestic provisions fall short, then reliance on Articles within the Directive through direct effect are available, noting the Directive was part of UK law, prior to Brexit (the Marleasing principle [124]).
On this basis, Article 7 of the Procedures Directive enables the applicant (including a child who has made an application in their own right), a right to remain in the UK until their application is determined [40]-[41]. Where a dependent child is understood to have made an application (Article 2(g) and 2(b) and recital 27 of the 2004 MSQD) where it is objectively clear such an application is being made. Any omission for a dependent child to make an application, was ruled by the Supreme Court not to arise from any choice the child has made [117]. Enabling the broad humanitarian interpretation of the Geneva Convention and the Directives to give, “generous and purposive interpretation bearing in mind their humanitarian aim” [118], the Supreme Court establishes the point of principle and procedure at [122] and held:
“Accordingly, I consider that a child named as a dependent on the parent’s asylum application and how has not made a separate request for international protection generally can and should be understood to be seeking such protection and therefore treated as an applicant. I would therefore allow this aspect of the appeal”.
At [122]-[153] the Supreme Court makes clear this protection from refoulment, in line with Articles 7 and 8 (2) 2005 Procedures Directive extends to the final determination of the in-country appeal procedures (i.e. the statutory rights of appeal), in line with section 104 (1) of the 2002 Act, “finally determined, withdrawn, or abandoned” [139]-[140], thereby providing a bar to the implementation of a 1980 Hague Convention return order [153], providing, “a devastating impact on 1980 Hague Convention proceedings”.
Ground Two:
Can a return order be made under the 1980 Hague Convention even where a child has protection from refoulment (dismissed, the return order can be made, but not implemented) [154-162].
Ground Three:
Should the High Court be slow to stay an application under the 1980 Hague Convention prior to the determination of an application for asylum (dismissed, the High Court should not stay proceedings) [154-162].
Both these grounds lead to the Supreme Court dismissing these grounds of appeal (see Section 1 of this Note) affirming the approach of the Court of Appeal.
VII – Where Next?
The Supreme Court in maintaining the order of the Court of Appeal in setting aside the stay granted by Lieven J in the Hague Convention proceedings, have remitted the case back to the Family Division [180]. But where next?
For G there is now a negative asylum decision, dated 3 February 2021.31 This will clearly (based on the assumption of an in-country right of appeal), lead to extensive litigation before the First-tier Tribunal. The need to ensure a child-focused procedure to both the Hague proceedings and the Asylum proceedings will undoubtedly lead to further complex strategic litigation, both in these proceedings, and other cases currently being litigated. As Francis Bacon said, “Knowledge is Power”, - for this refugee lawyer, it may also involve a treacherous jurisprudential route-map - one even judicial angels fear to tread.
S. Chelvan, 19 March 2021.
DR. S CHELVAN © 2021
BARRISTER
33 BEDFORD ROW
NOTICE: This article is provided free of charge for information purposes only; it does not constitute legal advice and should not be relied on as such. No responsibility for the accuracy and/or correctness of the information and commentary set out in the article, or for any consequences of relying on it, is assumed or accepted by any member of Chambers or by Chambers as a whole.
[1] See also Press Summary, https://www.supremecourt.uk/cases/docs/uksc-2020-0191-press-summary.pdf (last accessed 19 March 2021).
[2] Sections 77, 78 and 104 of the Nationality, Immigration and Asylum Act 2002 (as amended). At the time of the 25-27 January 2021 hearing, the 3 February 2021 (negative) asylum decision had yet to be made by the SSHD. Whilst post-hearing submissions were made, these findings may be considered obiter.
[3] Case summary https://www.supremecourt.uk/cases/uksc-2020-0191.html (last accessed 19 March 2021).
[4] [25].
[5] [15].
[6] [17].
[7] [21].
[8] [22].
[9] [26] and [29].
[10] [29].
[11] [2020] EWCA Civ.1185, [2020] WLR(D) 505. Hearing dates 10-11 August 2020, with further written submissions 17 August-14 September (‘[CA]’).
[12] [21] [CA].
[13] [127] [CA].
[14] [131] [CA].
[15] F v M and anor (JCWI intervening) [2017] EWHC 949 (Fam); [2018] Fam 1 (Hayden J). See also for successful appeals and remittal back to the High Court: Re H (a Child) (International Abduction: Asylum and Welfare) [2016] EWCA Civ. 988; [2017] 2 FLR 527.
[16] E v E (SSHD intervening) [2017] EWHC 2165 (Fam); [2018] Fam 24 (Mostyn J).
[17] [136] [CA].
[18] [140] [CA].
[19] [152] [CA].
[20] [154] [CA].
[21] [163-164] [CA].
[22] [165-166] [CA].
[23] [167-183] [CA].
[24] The Convention Relating to the Status of Refugees, opened for signature, 28th July 1951, 189 U.N.T.S. 150, entered into force, 22nd April 1954, as amended by the Protocol Relating to the Status of Refugees 1967, 606 U.N.T.S. 267, entered into force, 4th October 1967. UK’s ratification of the 1951 Convention on 11 March 1954 and accession to the 1967 Protocol on 4 September 1968: <http://www.unhcr.org/uk/protection/basic/3b73b0d63/states-parties-1951-convention-its-1967-protocol.html> accessed 19 March 2021.
[25] Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted (Official Journal 2004 L 304, 30/09/2004 p. 12).
[26] Refugee or Persons in need of International Protection (Qualification) Regulations 2006 (SI 2006/2525) (commencement 9 October 2006).
[27] See Soering v United Kingdom (1989) 11 EHRR 439.
[28] “[329] Until an asylum application has been determined by the Secretary of State or the Secretary of State has issued a certificate under Part 2, 3, 4 or 5 of Schedule 3 to the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 no action will be taken to require the departure of the asylum applicant or their dependants from the United Kingdom.” [102].
[29] ‘API on Dependents and Former Dependents’ (22 May 2014):<https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/314042/DependantsAndFormerDependants_External2014-05-22.pdf> (last accessed 19 March 2021.
[30] Council Directive 2005/85/EC of 1 December 2005 minimum standards of procedures in Member States for Granting and Withdrawing Refugee Status: https://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2005:326:0013:0034:EN:PDF (last accessed 19 March 2021).
[31] Appendix One of judgment, 10 February 2021 entry.