G v G
| Jurisdiction | England & Wales |
| Neutral Citation | [2021] UKSC 9 |
| Court | Supreme Court |
2020 Aug 10, 11; Sept 15
2021 Jan 25, 26, 27; March 19
Children - Custody rights - Breach - Child habitually resident in South Africa wrongfully removed by mother to England - Mother applying for asylum in England and naming child as dependant - Father applying under Hague Convention for child’s return - Whether Hague Convention application to be stayed pending determination of asylum application - Whether child named as dependant on parent’s asylum application to be treated as making own asylum application - Whether court prevented from implementing return order pending determination of asylum application -
The mother and father lived in South Africa with their young child. Following their divorce, the mother wrongfully removed the child to England where she applied for asylum, naming the child as a dependant in her application. The father applied under the Hague Convention on the Civil Aspects of International Child Abduction 1980, scheduled to the Child Abduction and Custody Act 1985, for an order returning the child to South Africa. The judge, who had been wrongly informed that the mother had applied for asylum on behalf of both herself and the child, stayed the Hague Convention proceedings until the Secretary of State had determined the child’s asylum application. The Court of Appeal allowed the father’s appeal and lifted the stay, holding that where a child had been named as a dependant in an asylum application, neither article 7 of Council Directive 2005/85/EC nor paragraph 329 of the Immigration Rules prohibited the court from determining an application under the Hague Convention in respect of the child, or from making a return order under article 12 of that Convention, or from implementing such a return order.
On the mother’s appeal—
Held, allowing the appeal in part, (1) that, having regard to the definition of “application for asylum” in article 2(b) of Council Directive 2005/85/EC, a request for asylum made by an adult applicant which named a child as a dependant was also an application by the child if objectively it could be understood as such; that, generally speaking, an application which named a child as a dependant could (and should) objectively be understood as an application by the child since (i) it was inherently likely that any grounds relied on by the adult applicant for fearing persecution or serious harm of a relevant kind would also apply, by reason of their relationship, to the child and (ii) it was the adult who determined, on behalf of the child, whether to make a claim for asylum; and that, accordingly, a child named as a dependant on his or her parent’s asylum application and who had not made a separate request for international protection should generally be treated as an asylum applicant (post, judgment of Lord Stephens JSC, paras 117–121).
(2) That, since the factual findings made by a court in proceedings under the Hague Convention were neither made by the “determining authority” for the purposes of Council Directive 2005/85 nor pursuant to a process which complied with the examination procedure in that Directive, they did not bring to an end the protection against refoulement which article 7 of the Directive conferred on an applicant for asylum; that, therefore, where there were parallel applications for asylum and under the Hague Convention the protection conferred by article 7 of the Directive continued until the Secretary of State, as determining authority, had determined the asylum application; that, further, the obligation in article 7 bound the state in its entirety so as to preclude any emanation of the state, including the High Court, from implementing a return order so as to require an asylum applicant to leave the United Kingdom before the Secretary of State had determined their asylum application; that, moreover, an asylum applicant could also rely on paragraph 329 of the Immigration Rules to prevent their removal from the United Kingdom pursuant to a return order; and that, accordingly, a return order under article 12 of the Hague Convention which had been made in respect of a child who had applied for asylum, or was to be treated as having applied for asylum, could not be implemented until the child’s asylum application had been determined by the Secretary of State (post, judgment of Lord Stephens JSC, paras 128–134).
(3) That member states had a margin of appreciation as to how they complied with their obligation under article 39 of Council Directive 2005/85 to provide asylum applicants with an “effective remedy” before a court or tribunal against a decision taken on their application for asylum; that the effective remedy in the United Kingdom was provided by appeals to the First-tier Tribunal pursuant to section 82(1) of the Nationality, Immigration and Asylum Act 2002, whether the applicant had the right under that Act to bring the appeal from within the United Kingdom or was required to bring the appeal from outside the United Kingdom; that, where the asylum applicant had a right to an in-country appeal by virtue of section 78 of the 2002 Act, there could not be an effective remedy for the purposes of article 39 of the Directive if, while that appeal was pending, the applicant had been returned under the Hague Convention to the country from where they had sought refuge; that it followed that, while it was pending, an in-country appeal against the refusal of an application for asylum acted as a bar to the implementation of a return order made in proceedings under the Hague Convention, although an out-of-country appeal would not act as such a bar; and that, accordingly, an asylum applicant who had exercised their in-country right of appeal could not be removed pursuant to a return order under the Hague Convention until the conclusion of the appeal process as defined in section 104(1) of the 2002 Act (post, judgment of Lord Stephens JSC, paras 137–140, 152–153).
(4) That although there might be cases where it would be appropriate for the court to exercise its discretion to stay Hague Convention proceedings pending the Secretary of State’s determination of an asylum claim the High Court should be slow to do so; and that, accordingly, the order of the Court of Appeal setting aside the stay imposed by the judge would be maintained and the case would be remitted to the Family Division for further consideration of the father’s Hague Convention application (post, judgment of Lord Stephens JSC, paras 160–162, 178–180).
Per curiam. The following practical steps should ordinarily be taken where there are related asylum and Hague Convention proceedings. (i) The Secretary of State should be requested to intervene in the Hague Convention proceedings. (ii) There should be liaison and a clear line of communication between the courts and the Home Office. (iii) The child should be joined as a party to the Hague Convention proceedings with representation. There should also be a direction that papers which have by that stage been provided to the Secretary of State in relation to the asylum proceedings should be disclosed to the child’s representative. (iv) Documents in the Hague Convention proceedings should ordinarily be made available to the Secretary of State. (v) The court should give early consideration to whether the asylum documents should be disclosed in the Hague Convention proceedings. (vi) The court with conduct of the Hague Convention proceedings and the Secretary of State should co-ordinate their respective proceedings to secure expedition in both. (vii) In cases linked to the Hague Convention proceedings consideration should be given to ensuring that any asylum appeal or any asylum judicial review claim be assigned to a judge of the Family Division, although not the judge with conduct of the Hague Convention proceedings. (viii) The High Court should have oversight over and be in a position to co-ordinate both proceedings until both have been concluded (post, judgment of Lord Stephens JSC, paras 165–177).
The following cases are referred to in the judgment of Lord Stephens JSC:
Ali v Secretary of State for the Home Department
B (A Child), In re
D (A Child) (Abduction: Rights of Custody), In re
E (Children) (Abduction: Custody Appeal), In re
EN (Serbia) v Secretary of State for the Home Department
F v M
FA (Iraq) v Secretary of State for the Home Department
H (A Child) (Disclosure of Asylum Documents), In re
H (A Child) (International Abduction: Asylum and Welfare), In re
KN (Democratic Republic of Congo) v Secretary of State for the Home Department
Marleasing SA v La Comercial Internacional de Alimentación SA
Pankina v Secretary of State for the Home Department
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