Fe v Ye Secretary of State for the Home Department (Intervener)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Mostyn |
| Judgment Date | 25 August 2017 |
| Neutral Citation | [2017] EWHC 2165 (Fam) |
| Docket Number | Case No: FD17P00020 |
| Court | Family Division |
| Date | 25 August 2017 |
[2017] EWHC 2165 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Mostyn
Case No: FD17P00020
and
Jacqueline Renton (instructed by The International Family Law Group LLP) for the Applicant
Henry Setright QC & Brian Jubb (instructed by MSB Solicitors) for the Respondent
Alan Payne & Robert Cohen (instructed by Government Legal Department) for the Intervener
Hearing date: 8 August 2017
Judgment Approved
The judge authorises publication of the judgment in this anonymised form.
Does an asylum claim by the subject children halt an application under the 1980 Hague Child Abduction Convention? Surprisingly, this question has apparently never before been determined in England and Wales, although it has been addressed in the USA and Canada. The Home Secretary has intervened in the proceedings, and argues that a grant of asylum to the subject children, if made, would act as an absolute bar to a return order being made under the 1980 Convention. While the application is pending (and for these purposes a pending application is one that has not exhausted all appeal rights) the Home Secretary argues that a return order cannot be implemented. Such an order can only be made, or take effect, where the asylum claim has been refused and where all appeal rights have been exhausted.
In fact, in this case the Home Secretary refused the asylum claim of the mother and the children a few days before the hearing before me. The reasons given are extremely careful and extensive. They make compelling reading, and they correspond to my view of the merits of the mother's defence to the father's application under the 1980 Convention. The mother and the children have a right of appeal to the First-tier Tribunal, and that right of appeal has been exercised. At the hearing of those appeals the claims of the mother and the children for asylum will be determined anew, although the decision and reasoning of the Home Secretary will be afforded appropriate weight. If the First-tier Tribunal dismisses the appeal then there is the availability of an appeal on a point of law, and subject to permission, to the Upper Tribunal. Beyond that lie the Court of Appeal and the Supreme Court. If the Upper Tribunal refuses permission to appeal then the appeal rights will be exhausted; the availability of judicial review of such a decision would not, in my opinion, keep alive appeal rights for the purposes of the decision that I have to make.
Plainly, for the Home Secretary to determine an asylum application, for that decision to be considered anew by the First-tier Tribunal, and for the legal basis of that decision to be considered by the Upper Tribunal (and perhaps higher still), will take many months. That period of time is incompatible with the command for expedition contained within article 11 of the 1980 Convention, and article 11.3 of the Brussels 2 revised regulation (No. 2201/2003). Those provisions contemplate a decision on an application for a return order being made within six weeks. Article 11.3 of the Brussels 2 revised regulation allows a decision to be made outside that timeframe only in "exceptional circumstances". It is fair to observe, however, that notwithstanding this command, some cases take very much longer than six weeks, especially if they are appealed all the way up to the Supreme Court, as has so often happened in this field.
Asylum claims in this country are determined under the 1951 Geneva Convention Relating to the Status of Refugees. That convention is strictly speaking unincorporated in our statute law, although it is referred to, implemented, and given procedural effect by the Asylum and Immigration Appeals Act 1993, the Nationality Immigration and Asylum Act 2002, and by the Immigration Rules made by the Home Secretary and approved by Parliament. Moreover, it is adopted and given further procedural effect by two European directives namely the Qualifications Directive of 2004 (2004/83/EC) and the Procedures Directive of 2005 (2005/85/EC). The 1951 Convention is therefore well and truly part of the fabric of our law, both by Parliamentary reference and by the operation of European law.
The 1951 Convention was framed in the aftermath of the Second World War when floods of refugees swept across Europe. Initially, it was limited to protecting European refugees from before 1 January, 1951. However, since then it has been expanded to cover all refugees and has been subscribed to by virtually every country in the world. A key, almost sacred, principle contained within the 1951 Convention is that of non-refoulement as expressed in article 33(1) which reads:
"No Contracting State shall expel or return ("refouler") a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion."
A person who arrives on these shores seeking protection is not confined to claiming relief within the four corners of the 1951 Convention. He or she may also seek protection against threatened violations of articles 2 and 3 of the 1950 European Convention on Human Rights as incorporated in the Human Rights Act 1998. Plainly, the principle of non-refoulement applies equally to a claim mounted under the 1998 Act.
It is hardly necessary to spell out the policy reasons that underpin the principle of non-refoulement. If a claimant for protection were returned to the place of persecution while his claim was pending, and, a fortiori, after it were determined in his favour, then there would be a high risk of persecution being re-inflicted on him or her, with possibly irreversible consequences.
The non-refoulement principle finds expression in article 21 of the Qualifications Directive. Equivalently, section 77 of the 2002 Act prohibits the removal under the Immigration Acts from this country of a person whose asylum claim is pending.
The Procedures Directive in article 4 requires member states to designate an authority with the responsibility for determining asylum claims. That has been given effect in this country by the nomination of the Home Secretary. Article 39(1)(a) requires that member states must ensure that asylum applicants have the right to an effective remedy before a court or tribunal against a decision taken on their application for asylum. In this country that has been given effect by granting the right of appeal to the First-tier Tribunal, with the further rights of appeal which I have mentioned above. Article 39(3)(a) provides that member states must provide rules for dealing with the question of whether the right to an effective remedy shall have the effect of allowing applicants to remain in that country pending its outcome. That has been given effect by allowing an in-country appeal to the First-tier Tribunal. There is a procedure under section 94 of the 2002 Act whereby the Home Secretary may certify certain claims as being clearly unfounded, with the consequence that the right of appeal is only exercisable when out of the jurisdiction.
The relief that is granted under the 1951 Convention or under the 1998 Act in favour of a persecuted claimant is of a substantive nature. Essentially, it allows the claimant to live here indefinitely with a guarantee that he will not be returned to the place of persecution. A grant of refugee status usually leads to a grant of five years' leave to remain; thereafter a grantee becomes eligible to apply for indefinite leave to remain.
The 1980 Hague Convention on the Civil Aspects of International Child Abduction was framed and promulgated in order to challenge the growing phenomenon of the unlawful cross-border removal or retention of children by one of their parents from the other. It was formulated at a time when there was no global Convention on the mutual recognition of custody and other orders regulating parental responsibility. In the same year, however, certain European countries subscribed to the Luxembourg Convention on Recognition and Enforcement of Decisions concerning Custody of Children and on the Restoration of Custody of Children. Since then, in 1996, the Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in respect of Parental Responsibility and Measures for the Protection of Children has come into effect, which provides for such a global mutual recognition regime. The recognition and enforcement provisions in the 1996 Convention have been largely reiterated in chapter III of the Brussels 2 revised regulation.
The Brussels 2 revised regulation has by recital 17 and article 11 adopted the 1980 Hague Convention. Plainly, the 1980 Convention is part of EU law (see Opinion 1/13 of the Court of Justice of the European Union, 14 October 2014). In theory, a clash or conflict could arise between the 1951 and 1980 Conventions, each of which has been adopted by the EU and is part of its law, and therefore ours.
The scheme of the 1980 Hague Convention is to return an unlawfully removed or retained child to the country of his or her habitual residence for the courts of that country to make the long-term welfare decisions about him or her. The objective of the Convention, as stated in its preamble, is "to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence" (emphasis added by me). In the absence of a mutual recognition of custody orders regime one can readily see why such a measure is necessary. If the child were not returned, there would be no guarantee...
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