Children with pending asylum claim can be removed from the UK to be reunited with their parents

The latest instalment of the litigation surrounding the family separated during a Channel crossing last year has been determined by the Family Court. We have previously covered the interim relief decision by the Court of Appeal as well as the Upper Tribunal’s decision in the judicial review. This case is K (Children) (Application for return orders: Concurrent asylum claims) [2025] EWHC 450 (Fam). Kent County Council was the applicant in these proceedings, the family were the respondents, and the Home Secretary intervened.

The children, aged six and nine, made it to the UK in July 2024 where they claimed asylum and were taken into the care of Kent County Council. Their parents were left behind in France and applied for entry clearance in August 2024 to join their children. That application was refused in December 2024 and is under appeal.

In November 2024, Kent applied for an order for the children to be returned to their parents in France. The issue to be determined in these family proceedings was whether any order to reunify the family in France could be implemented while the children’s asylum applications were still being considered in the UK. The court had asked the Home Secretary to provide a timescale for a decision on the asylum claims but this was not provided. The court noted:

the expedited process that is supposed to be engaged for children subject to applications under the 1980 Hague Convention envisages determination of such claims within 30 days. Arguably, these children’s claims require the same treatment.

Of relevance here was the Supreme Court’s decision in G v G [2021] UKSC 9 (our write up is here) which prohibited the implementation of return orders under the 1980 Hague Convention while an asylum claim was pending. The High Court considered that this also applies to return orders such as the one sought in this case.

It was submitted by Kent and the Home Secretary that G v G no longer applied “because the reasoning of the Supreme Court was founded on the application of the procedures directive and old rules that no longer apply” and that the court should “determine afresh whether the prohibition on the High Court implementing a return order pending resolution of a child’s asylum claim still holds”.

The court considered changes that had been made since G v G by the Nationality and Borders Act 2022 which amended section 77 of the Nationality, Immigration and Asylum Act 2002 and provide for a person to be removed from the UK to a “safe third country” while their asylum claim is still pending. The court said that the “combined effect is that removal from the UK to a safe third country, pending the determination by the SSHD of an asylum claim, is now more widely permitted in domestic immigration law”.

The court concluded that the prohibition in G v G no longer applied:

I have concluded that the operation of immigration and asylum law no longer prevents the High Court from implementing a decision to return a child to another State before their asylum claim here has been determined by the SSHD, provided that the general principle of non-refoulement is upheld. That general principle permits return to either the country of nationality, if there is no risk of persecution, or a safe third country. [at 42]

It remains unclear how much longer this family will be separated, Kent County Council is working on a welfare assessment with the French local child welfare authority however this could apparently take a further three months.

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