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R (A Child : Asylum And 1980 Hague Convention Application) (Rev1) [2022] EWCA Civ 188

While a successful asylum application may impact on the implementation of a return order, it does not act as a bar to such an order being made or dispense with the need to determine the application. The timing of an asylum claim may potentially be of considerable importance to the application of the principles set out in G v G

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Successful appeal from HC decision of Mrs Justice Roberts ("the Judge") in VR and YD and MVR [2021] EWHC 2642 (fam) which dismissed the father's application under the provisions of the 1980 Hague Child Abduction Convention ("the 1980 Convention") for the summary return of the parties' child, M, to Ukraine and refused disclosure of material from the successful asylum application made on M's behalf

This is a further case (post G v G (Secretary of State for the Home Department and others intervening) [2021] 2 WLR 705) dealing with the situation where either the respondent to an application under the 1980 Convention, and/or a child who is the subject of the application, claim asylum.

M is 12 years old.  He was born as a result of a brief relationship between his parents who were both academics with professional backgrounds and Ukrainian citizens.  Until mid 2016 M had contact with his father (F) who has parental responsibility.  In 2016 M's mother commenced a relationship with a British citizen.  They married in mid 2017.  In 2018 the mother applied in the Ukrainian court seeking permission to remove M to UK for 7 years to join her husband, having secured a spousal visa.  The parents reached an interim agreement in those proceedings allowing M and his mother to travel to UK for 6 months.  That agreement was incorporated into a Ukrainian court order.  The mother did not return after 6 months.  F made an application under the 1980 Convention which was heard by Theis J in May 2019.  The mother's Art 13 (b) defence was rejected and whilst accepting that M was articulating an objection to returning, Theis J declined to exercise her discretion on that basis and made a return order. 

M and his mother returned to Ukraine but the mother did not, as expected, make a further application there for permission to permanently remove M to the UK.  Instead she remained for a time before travelling back to the UK via Lithuania in October 2019.  F issued a further 1980 Convention application in March 2020 which resulted in a further return order being made.  In August, mother's appeal of that decision was dismissed and her subsequent application to stay the order was also dismissed.  Mother made a further application to set aside the return order on 24th August 2020 (dismissed) and another application to stay the order on 9th October 2020 (dismissed).  On 26th October 2020 the mother applied for a stay on the basis that M had made an application for asylum. On 30th October 2020 F applied for M's committal for breach.  The home office received M's asylum claim (instigated by the mother) on 2nd November 2020.  On 22nd January 2021 F made an application for disclosure of M's asylum application.  M and the Secretary of State for the Home Department (SSHD) were joined to proceedings.  On 28th May 2021 the SSHD granted M asylum.  The material from the asylum application was made available to the Judge and the child's guardian

In her judgment, the Judge first addressed the issue of disclosure, dismissing the application although observing that there was "an inconsistency in terms of the totality of the information made available to SSHD" and that placed before the court in relation to the Art 13 (b) defence.  The Judge then effectively dealt with the issue of set aside and the determination of the father's substantive application together, concluding at [76], that, because the grant of asylum "operates to prevent the enforcement of an order for summary return", the 1980 Convention proceedings are "without further purpose" and that "there is nothing further for this court to examine"

The Court of Appeal disagreed with these conclusions.  A summary cannot do justice to the issues considered in the judgment but the following points may be drawn from it:

• This case and G v G address a very small number of cases where the same family are involved in both an asylum claim and an application under the 1980 Convention. Nothing said in either has any wider application.

• Lord Stephen's judgment in G v G (para 6) identified the need for the 1951 Refugee Convention and the 1980 Convention to "operate hand in hand" and for practical steps to be taken to co-ordinate both sets of proceedings.  Facts in support of an asylum claim would be very likely to be included in any case advanced under Art 13 (b) and vice versa. Practical steps proposed include giving early consideration to whether the asylum documents should be disclosed into the 1980 Convention proceedings applying Re H (a child) (disclosure of asylum documents) [2020] EWCA 1001

• The differences in the respective procedures provide good reasons for the court to ensure that an asylum claim and even the grant of asylum do not subvert the fair and proper determination of an application under the 1980 Convention

• In G v G, the mother made an asylum claim immediately on arriving in UK.  The father's application under the 1980 Convention was issued a month later.  The two applications proceeded in parallel. This was the context for the observations made by the Court of Appeal and the Supreme Court. It is also clear, however, that this was expected typically to be what would happen

• There might be circumstances which explain why an asylum claim is not made until later, such as a change in the conditions in the home State or the development of a new risk of persecution. However, absent such an explanation, the court is entitled to expect, and there is an obligation on, a parent to advance their full case in the 1980 Convention proceedings. If this requires some procedural adjustments, then they can be sought by that parent

• The timing of an asylum claim is, potentially, of considerable importance to the application of the principles set out in G v G. If this was ignored as a relevant factor, it would open the door to manipulative applications used to seek to subvert the expedited process that is required in the determination of applications under the 1980 Convention.

• The process to be followed on an application to set aside an order under the 1980 Convention is set out in Re B (a child) [2021] 1 WLR 517 at para 89: (a) the court will first decide whether to permit any reconsideration; (b) if it does, it will decide the extent of any further evidence; (c) the court will next decide whether to set aside the existing order; (d) if the order is set aside, the court will redetermine the substantive application

• It is also necessary to deal with the circumstances in which the SSHD will or might reconsider the grant of asylum as set out by Hayden J in F v M and A [2017] EWHC 949 (Fam) and that it is open in principle to the father to judicially review a failure by SSHD to revoke the grant of asylum

• Just as a reasoned decision on an asylum claim will be relevant to the determination if an application for a return order, so a reasoned HC decision on the evidence available to it and tested to an extent by the adversarial process not available in the assessment of an asylum claim could be expected to assist the SSHD

• The fact that the proper determination of an application under the 1980 Convention might enable the left behind parent to request the SSHD to reconsider or review the grant of asylum does not make such a determination or the pursuit of such a determination improper or illegitimate

Appeal allowed.  Case remitted for urgent case management hearing to include determination of application to disclose the asylum material

Case summary by Dr Martina van der Leij, Barrister, Field Court Chambers

For full case, please see BAILII