Secretary of State for the Home Department v R
| Jurisdiction | England & Wales |
| Judge | Phillips LJ,Peter Jackson LJ,Lord Justice Baker |
| Judgment Date | 29 July 2020 |
| Neutral Citation | [2020] EWCA Civ 1001 |
| Date | 29 July 2020 |
| Docket Number | Case No: B4/2020/0719 AND 0721 |
| Court | Court of Appeal (Civil Division) |
In the Matter of the Children Act 1989
And in the Matter of H (A Child) (Disclosure of Asylum Documents)
[2020] EWCA Civ 1001
Lord Justice Peter Jackson
Lord Justice Baker
and
Lord Justice Phillips
Case No: B4/2020/0719 AND 0721
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT FAMILY DIVISION
The Hon Mr Justice MacDonald
FD19P00347
Royal Courts of Justice
Strand, London, WC2A 2LL
Alan Payne QC and John Goss (instructed by Government Legal Department) for the Secretary of State
Christopher Hames QC (instructed by Broudie Jackson Canter) for the Second Appellant mother
Edward Devereux QC and Mehvish Chaudhry (instructed by Bindmans LLP) for the First Respondent father
Michael Edwards (instructed by Cafcass Legal) for the Second Respondent child, by his children's guardian
Hearing date: 10 June 2020
Approved Judgment
This judgment concerns two appeals against an order by MacDonald J for disclosure made in private family proceedings under the Children Act 1989 concerning a boy, H, now aged 9. The appeals are brought by the Secretary of State for the Home Department and the boy's mother. The order under appeal requires the mother to disclose to the solicitors acting for the father and the child redacted copies of certain documents contained in the mother's asylum file. The order was made following two judgments delivered by the judge – the first, dated 18 November 2019, in which he set out the principles he proposed to apply in reaching his decision on the father's application for disclosure of the documents, and the second, dated 4 May 2020, in which he set out his reasons for ordering disclosure.
At the conclusion of the hearing before us, we indicated that the appeal would be dismissed. This judgment sets out my reasons for agreeing with that decision.
Brief summary of background
The mother, father and child are nationals of an African country. In February 2016, the mother and child left that country without the father's knowledge and travelled to London. On arrival, the mother claimed asylum, including the child as a dependent, alleging that she had fled her home countrybecause of chronic domestic and sexual abuse inflicted on her by the father in the child's presence and sexual abuse of the child. She said that were she to return to her country of origin there was a substantial risk that the father and/or his family and associates would kill her or inflict further physical abuse.
In the course of the examination of her application, the mother was interviewed and provided information in support of her claim. By letter, dated 24 April 2017, the Secretary of State accepted the mother's account of abuse perpetrated by the father, but refused the claim for asylum on the grounds that she could relocate within her country of origin away from the danger posed by the father and his family. The mother appealed to the First-tier Tribunal which, on 11 September 2017, allowed her appeal, as a result of which she was granted leave to remain and refugee status as a recognised refugee. In her determination, the tribunal judge stated that the mother's claims, including her claim that she could not safely relocate within her country of origin, were credible and that she had established that her fears of persecution were well founded.
In December 2018, the father issued proceedings for the return of the child under the Hague Child Abduction Convention. The mother opposed the application. During the proceedings, the father applied for disclosure of the information provided by the mother in the course of her asylum application. That application was refused by HH Judge Corbett, sitting as a judge of the High Court. The father then withdrew his application under the Convention and issued proceedings for a child arrangements order under the Children Act 1989.
Meanwhile, an application on behalf of the child for asylum in his own right was issued, relying on the material provided in support of the mother's claim, and subsequently granted on 12 May 2020.
Within the Children Act proceedings, the father again applied for disclosure of the asylum file. The Secretary of State was invited to intervene in respect of the disclosure issues. She accepted the invitation and opposed the application, as did the mother. That application was considered by MacDonald J at two hearings and determined over two judgments. In the first, reported as R v G and Secretary of State for the Home Department (Intervener) [2019] EWHC 3147 (Fam), the judge set out his analysis of the general principles applicable in private law family proceedings when determining applications for disclosure of confidential material obtained in the course of asylum claims. In the second, reported as R v G and Secretary of State for the Home Department (Intervener) (No.2) [2020] EWHC 1036 (Fam), he considered the application of those principles to the facts of this case and concluded that a number of documents from the asylum file should be disclosed in a redacted version. In the course of determining the application, the judge read all of the documents which the Secretary of State and the mother sought to withhold, in accordance with the procedure set out in FPR 21.3(6).
The Secretary of State and the mother filed notices of appeal against the disclosure order. On 29 May 2020, King LJ granted permission to appeal and imposed a stay on the implementation of the disclosure order until the appeal had been determined.
The Law
The court was greatly assisted by a detailed exposition of the legal framework to refugee claims and claims for humanitarian protection set out in an annex to the Secretary of State's skeleton argument. For the purposes of this judgment, however, it is only necessary to refer in outline to some of that framework.
International instruments and domestic regulations
The Geneva Convention 1951 relating to the Status of Refugees defined the term “refugee” and provided a number of substantive rights to which refugees are entitled. Under Article 1A, the term “refugee” shall apply to “any person who”
“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as result of such events, is unable or, owing to such fear, is unwilling to return to it.”
The Geneva Convention has never been formally incorporated or given effect in UK domestic law. It is, however, given significant weight as result of the terms of s.2 of the Asylum and Immigration Appeals Act 1993, which provides that:
“Nothing in the immigration rules (within the meaning of the 1971 Act) shall lay down any practice which would be contrary to the Convention.”
The extent to which the Convention is applicable in domestic law was described by Stanley Burnton LJ in EN (Serbia) v Secretary of State for the Home Department [2010] QB 633 in these terms:
“So far as the Refugee Convention as a whole is concerned, Parliament has legislated in section 2 of the Asylum and Immigration Act 1993, but it did not do so in terms that would give the Refugee Convention the force of statute for all purposes. It expressly limited the force given to the Refugee Convention to the Immigration Rules. The Refugee Convention also affects the lawfulness of administrative practices and procedures, because, as Lord Steyn put it in R (European Roma Rights Centre) v Immigration Officer at Prague Airport (United Nations High Comr for Refugees intervening) [2005] 2 AC 1, para 41: It is necessarily implicit in section 2 that no administrative practice or procedure may be adopted which would be contrary to the Convention. But to give the Refugee Convention any greater force or status under our law would be to go further than section 2 requires or permits, and in my judgment this is something the court cannot do.”
Under Article 6(1) of the Treaty of the European Union, the UK is bound to act in accordance with the rights protected by the Charter of Fundamental Rights of the European Union. Article 18 of the Charter provides that:
“The right to asylum shall be guaranteed with due respect for the rules of the Geneva Convention on 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees and in accordance with the Treaty of the European Union and the Treaty on the Functioning of the European Union ….”
Council Directive 2004/83/EC is entitled “minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted”. Article 13 of the Directive requires the grant of “refugee status” to those recognised as refugees by a Member State and Article 18 provides for subsidiary protection for those who are at risk of serious harm but do not qualify as a refugee.
Council Directive 2005/85/EC (hereafter “the Procedures Directive”) sets out “minimum standards on procedures in Member States for granting and withdrawing refugee status”. It includes the following recitals:
“(7) It is in the very nature of minimum standards that Member States should have the power to introduce or...
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