The High Court of Justice, Family Division
Mr Justice Mostyn
25 August 2017
Interpretation of the Convention | Human Rights - Art. 20
Return ordered subject to undertakings
1951 Geneva Convention Relating to the Status of Refugees
Qualifications Directive of 2004 (2004/83/EC) and the Procedures Directive of 2005 (2005/85/EC)
1950 European Convention on Human Rights
Asylum and Immigration Appeals Act 1993, the Nationality Immigration and Asylum Act 2002
Human Rights Act 1998
The parents married in June 1993 and have four children. The current application concerns two of the children, twins, aged 7.
The family lived in Israel until June 2016, when the mother, the daughter and the twins went on holiday to Thailand. They did not return when booked to do so in July, 2016 and instead travelled to London. In the same month the mother applied for asylum for herself in the UK, listing the children as dependants. She made asylum claims for the children in their own right somewhat later. The father initially attempted to persuade the mother to return home but, on failing to do so, issued these Hague proceedings on 13 January 2017.
It was agreed that the Hague proceedings would not be heard until the Home Secretary had issued her decision on the asylum claims, which she did on 4 August 2017.
The asylum claims of the mother and the children were refused. The Home Secretary argued that while an asylum application was pending (i.e. an application that has not exhausted all rights of appeal) a return order could not be implemented.
The court considered the question of whether an asylum claim by the subject children halts an application under the 1980 Hague Child Abduction Convention.
Where a grant of asylum has been made by the Home Secretary it is impossible for the court later to order a return of the subject child under the 1980 Hague Convention. Equally, it is impossible for a return order to be made while an asylum claim is pending (including pending an appeal). Such an order would be in direct breach of the principle of non-refoulement.
The court ordered that the children be returned to Israel, but that this order should not take effect until 15 days after the promulgation by the First-tier Tribunal of its decision on the appeal by the mother and the children against the refusal of the grant of asylum by the Home Secretary. If the First-tier Tribunal allowed the appeal then the return order would be stayed. If the First-tier Tribunal dismissed the appeal, then the return would be implemented, unless the mother wished to appeal on a point of law, in which case the court would appraise the strength or otherwise of the grounds of appeal.
After setting out the relevant legislation including the 1951 Geneva Convention Relating to the Status of Refugees and the 1980 Hague Child Abduction Convention, the court held that where a grant of asylum has been made by the Home Secretary or if an asylum claim was pending (including pending an appeal) then the court could not order the return of the subject child under the 1980 Hague Convention.
This decision was based on the reasoning that the relief granted under the 1951 Convention is of a substantive nature while relief under the 1980 Hague Convention is procedural, not for making long-term substantive welfare decisions.
The court added that if an asylum claim has been refused but an appeal has been mounted, then it is possible, indeed desirable, for the court to hear the return application but to provide that no return order shall take effect until, at the earliest, 15 days after the promulgation of the decision by the tribunal.
The court noted that the review of asylum applications and the possibility of appeal of any decision could take many months, a period of time that is incompatible with the need for expedition contained within article 11 of the 1980 Convention, and article 11.3 of the Brussels 2 revised regulation (No. 2201/2003). However, the court found that the possibility of delay is hardly likely to give to the kind of risks that might arise if the principle of non-refoulement is breached.
The court added that, where there is an application under the Hague Convention 1980 running in parallel with an application for asylum it is vital that the Home Secretary is informed of this at the earliest opportunity and is invited and encouraged to deal with the asylum claim with maximum speed.
In circumstances where asylum has been granted or an application or appeal is pending, the power to refuse to make an order for return comes from Article 20 of the 1980 Convention.
Author: Victoria Stephens