UK Supreme Court Blog

EDITORS: Dan Tench, Emma Cross, Zainab Hodgson, Francesca Knight, James Warshaw and Natalie Haefner (CMS)
Hugh Tomlinson KC, Matthew Ryder KC, Nandini Bulchandani and Daniel Rudd (Matrix)

On appeal from: [2020] EWCA Civ 1185

This appeal considered three issues. First, does a child named as a dependent on a parent’s asylum application have any protection from refoulement? Second, can a return order be made under the 1980 Hague Convention even where a child has protection from refoulement? Third, should the High Court be slow to stay an application under the 1980 Hague Convention prior to determination of an application for asylum?

G is an only child of divorced parents. Until February 2020, her parents lived near to each other in South Africa. However, after telling friends that she was lesbian, G’s mother began to experience persecution from her family in South Africa. As a result, she fled to England with G and made an application for asylum. Upon discovering that G had been taken to England, G’s father made an application for her return under the 1980 Hague Convention. At first instance, Lieven J held that the father’s application for a return order should be stayed pending the determination of G’s mother’s asylum claim. The Court of Appeal considered that, in the circumstances, the High Court was not barred from determining the father’s application for a return order, nor was it barred from making such an order. The mother now appeals to the Supreme Court.

HELD: the court substantially allows the mother’s appeal and holds 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 before the final determination of the asylum claim. The case is remitted to the High Court for reconsideration of the 1980 HC application on that basis. UK asylum law is derived from a patchwork of international, EU and domestic law sources [77], which provide that an individual who is a refugee (because, in short, they have a well-founded fear of persecution in their country of nationality) has a right not to be refouled, subject to limited exceptions. That right does not depend on whether they have been granted status as a refugee [79]-[81]. An individual who can be understood to be seeking refugee status is therefore protected from refoulement. 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 an omission by the child to make an application in their own right cannot be determinative if it is the parent who would anyway have to make the application on the child’s behalf.

The effect of implementing a return order in 1980 HC proceedings in respect of a child asylum applicant is to return the child to the country from which they seek refuge. While the High Court can decide whether to make a return order, the return order cannot be implemented until the Home Secretary has determined the asylum claim [124]-[134]. The mother’s first ground of appeal therefore succeeds. There is no bar to the High Court deciding the 1980 HC application prior to the determination of the asylum claim, however, and it should be slow to stay 1980 HC 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 Home Secretary. The High Court has power to set aside its decision if the asylum claim is successful. The mother’s second and third grounds of appeal therefore fail.

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