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The Supreme Court has given judgment in an appeal which raises important issues regarding the interplay between international and domestic laws protecting refugees and those that govern cases of international child abduction.

This appeal concerned an 8 year-old child, P, who was brought to the UK from South Africa by her mother, without her father’s consent. When she arrived in the UK, P’s mother made an application for asylum on the ground that there was a risk to her and to P on account of her (the mother’s) sexuality. Since separating from P’s father, she had told her family that she was a lesbian, and had suffered physical violence as a result. On her asylum application form, the mother listed P as her dependant.

P’s father subsequently brought an application under the Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”), seeking P’s return to South Africa. The question that arose was whether, while the asylum application was pending determination, the family court could determine the father’s Hague Convention application and order P’s return. It is a cornerstone of refugee law that a person who is a refugee must not be returned to the country where he or she would suffer persecution (known as the principle of non-refoulement). It is enshrined in Article 33 of the Refugee Convention, which is the international instrument which is given effect in EU and domestic refugee law.

At first instance, proceeding on the basis that P had made an independent application for asylum, Lieven J ordered a stay of the Hague Convention proceedings until the Secretary of State had determined the asylum application. When it later transpired that P had not made an independent application for asylum, the Court of Appeal lifted the stay. The court held that listing a child as a dependant on a parent’s application form was not “properly construed as - nor is it treated by the Secretary of State as - a form of deemed application for protection by the child” (§139). As a result, the court held that P did not benefit from protection against refoulement, and so the father’s Hague Convention application could be determined.

The mother appealed. On ground one of her appeal to the Supreme Court, the mother contended that because refugee status is declaratory (a state merely recognises a refugee’s rights rather than grants them), and because protection from non-refoulement lies at the heart of international, European and domestic refugee law, where the Secretary of State is put on notice of a child’s asylum claim, she must not be returned until her claim for protection is determined – regardless of whether she had made an independent application, or an application as a dependant.

The Supreme Court agreed: where a child could be objectively understood as making an asylum application, she or he was protected from being refouled. This was for two main reasons. First, there is the “inherent likelihood” that “any grounds which an adult applicant may raise for fearing persecution or serious harm of a relevant kind will also apply, by reason of their relationship, to a child who is a dependant of that adult”. Second, because it is usually the parent who decides whether or not to make an application for the child in his or her own right, or to list the child as a dependant, “[a]n omission by a child to make an application in their own right cannot therefore be regarded as a choice which the child has made” (§117).

The Supreme Court also held that protection from non-refoulement pertained until any in-country right of appeal against the Secretary of State’s decision had been “finally determined” (§152). Pursuant to s. 104 of the Nationality, Immigration and Asylum Act 2002, an appeal is not finally determined while an application for permission to appeal to the Upper Tribunal or the Court of Appeal is still within time.

In light of the Hague Convention’s central aim to ensure the prompt return of children to their country of habitual residence, the implications of an asylum claim taking considerable time to be determined was a serious concern. As a result, the Supreme Court has made recommendations for the future development of standard directions by the High Court in Hague Convention proceedings which also involve a parallel asylum application for the child, so that such cases can be progressed expeditiously, but without compromising the essential protection provided to child refugees in the form of the principle of non-refoulement (§174 and Appendix Two).

The mother’s second and third grounds of appeal, relating to the family court’s power to determine (even if not implement) a child’s return order, and to stay a Hague Convention application pending an asylum application decision by the Secretary of State, were dismissed.

The judgment is available here.

Jason Pobjoy and Emmeline Plews acted for the mother.

Gayatri Sarathy acted for UNHCR, which intervened in the appeal.

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Staff