Home Office wins appeal against interim admission of parents of separated children

What should happen where young children are carried in a small boat to the United Kingdom and thereby separated from their parents in France? Should the children be returned to France to be reunited with their parents there? Or should the parents be admitted to the United Kingdom to be reunited here instead? These are some of the questions faced by the French and British authorities in the case of Secretary of State for the Home Department v EK [2024] EWCA Civ 1601. Because of the failure by either or both the French and British authorities to get their act together, the questions were ultimately delegated to judges instead.

I’ve ended up putting together a fairly full factual background here because I know most readers won’t click through to read the full thing themselves but the facts of this one are really stark.

Background

The case concerns a Turkish Kurdish family of four. The two children are nine and six. The family had been in Belgium and in France (and presumably elsewhere en route) and not claimed asylum in either country. On 19 July 2024, the whole family attempted to board a small boat departing from near Calais. The parents became separated from the children, with both parents ending up being left behind. The children thought their parents had drowned. The parents had no way of finding out what had happened to their children. One can only imagine the levels of distress.

On arrival, the children were placed in foster care in the UK. Contact was re-established with the parents on 25 July. On 21 August, after managing to instruct lawyers, the parents applied to come to the UK to join their children.

On 26 August the parent’s lawyers wrote to the Home Office with a pre-action letter asking that the parents’ application be expedited. The Home Office replied on 10 and 11 September stating that the case would be expedited.

Nothing happened.

On 30 September, now fully six weeks after the children entered the UK, the parents formally began an application for judicial review of the Home Office’s failure to act. The application was based on the duty of the Home Office to act in the best interests of children in the United Kingdom, the right not to be subject to inhuman and degrading treatment and the children’s right to family life.

On 11 October the Home Office issued its summary grounds of defence, the next stage in proceedings. An urgent hearing was then held on 31 October 2024. The judge at that hearing ordered that the Home Office admit the parents to the United Kingdom “as soon as reasonably practicable” pending resolution of the full claim. This is  an ‘interim’ order. Permission was also granted to proceed with the full case and a full hearing was ordered to take place at the earliest opportunity (9 January 2025, it later transpired).

Nothing happened.

Then, finally, nearly two weeks later, something did happen. The Home Office belatedly sprang into action. Although not to comply with the order the Home Office had been in breach of for that entire time.

On 13 November the Home Office appealed against the interim order and applied for a ‘stay’ (suspension) of its effect. An urgent hearing was held on 14 November regarding the application for the stay. A new judge refused the stay application and ordered the Home Office to make arrangements by 4pm  to admit the parents to the United Kingdom, with the admission itself to occur no later than 5pm on 19 November.

On the morning of 19 November, a Court of Appeal judge granted the stay sought by the Home Office. An urgent hearing was held on 17 December 2024. No less than five silks were employed by the three parties; the local authority caring for the children intervened in the case. Judgment was given on 20 December.

Reunite in France or the United Kingdom?

Everyone agrees the children need to be reunited with their parents. In theory, everyone would agree that this should happen quickly. The separation was causing trauma to children and parents alike. But should that occur in France or in the United Kingdom?

The parents want to come to the UK. Obviously. They find themselves in this situation because they tried to get into a small boat to come to the United Kingdom.

They had declined to make an asylum claim in Belgium because of their perception of the conflict between Flemish and French speakers and because they thought Kurdish people were mistreated there. They declined to claim asylum in France because they heard the Kurdish people are killed in France and they thought Turkish “intelligence” is active in France.

These reasons may sound far-fetched or implausible to some, in the sense that the objective risks are in reality very low. It’s not apparent from the judgment why they thought the United Kingdom was preferable. But we do know that a lot of people are willing to get into very dangerous small boats to try and come here. Why continues to be something of a mystery.

The Home Office wanted the children to go to France. Obviously. The Home Office does everything it can to stop people entering irregularly and wants to remove as many irregular entrants as it can. It also wants to deter others, and that policy of deterrence was particularly pertinent in this case.

Once they eventually started to engage with the case, Home Office officials expressed concern that allowing the parents to come to the UK to join their children might incentivise other parents to put their children into small boats alone so that they could do likewise.

The risk was initially assumed to be axiomatic by the Home Office, leading to the initial judge dismissing the argument as speculative and lacking logic. A later witness statement spelled out the reasoning in more detail: it would be cheaper for the parents as only passage for the children would need to be paid for. They also argued, some might think implausibly in the context of people smugglers with no regard to human life, that children are smaller and lighter so there would be less risk of boats sinking. The other assertions — there are increasing numbers of people crossing the channel and it is dangerous — do not really seem to articulate why parents would voluntarily send their children first rather than, for example, going together or one of them going themselves and then seeking entry for the rest of the family afterwards.

How information would be shared between disparate groups of migrants or between people smugglers was not addressed. Nor did the Home Office seemingly say anything about the importance of therefore sending the children back promptly, something that had clearly failed to occur in this case.

In any event, the French government agreed with this position, stating that admitting the parents to the UK “would be likely to increase the attractiveness and dangerousness of irregular crossings in small boats”.

Behind the scenes

For the United Kingdom to be able to remove a non-French person to France, the agreement of the French authorities is needed. In this context, the person facing removal is often referred to a “third country national” because they come from, um, a third country, i.e. not the country of nationality or the host country. Where a “third country national” has legal status in the third country concerned and is voluntarily travelling there, the third country will usually admit them. The third country is under no obligation to do so, though. They could cancel their legal status, for example, on the basis that circumstances have changed.

As an aside, we can see this process at work in a family case I recently came across. Re A and Others (Care Proceedings: Inherent Jurisdiction: Order for Return to Austria) [2024] EWFC 178 involved a Syrian father and four children who had entered the UK in a small boat. They held legal status in Austria and the mother, who remained in Austria, sought return of the children there under the Hague Convention on child abduction. The position of the Austrian government in that case was that the father would be admitted to Austria if he travelled there voluntarily but not if the UK attempted to forcibly remove him: see paragraph 21.

There have been other not dissimilar cases as well. Personally, I find it astounding that parents, particularly those with legal status in an EU country, would put their children in a small boat to cross the Channel. They must really think their long-term prospects are so superior here in the UK that it is worth the risk, ultimately. The assessment of prospects and risks seems so far removed from reality that changing these subjective perceptions is surely impossible.

Returning to the present case, witness statements referenced in the judgment show that British officials were grappling with the issues by 29 October, when the first meeting between British and French officials took place to discuss the case. French officials agreed that children should be returned to France. The first judge, who made the original order on 31 October, was not informed of this contact and had no knowledge of it.

By 14 November, following a “series” of discussions, the British Home Secretary and French Minister of the Interior had agreed the children should return to France “as quickly as possible”. The two met in person on 9 December and discussed the case, amongst other things.

One obstacle was that the French authorities did not know the location of the parents. They needed to know where the parents were in order to conduct a child protection assessment. This was not communicated to the French until, it seems, the date of the hearing in the case, 17 December. 

Outcome

The Court of Appeal granted the Home Office’s stay and set aside the interim orders that had been made. A final decision is yet to be made in the case.

The Court of Appeal held that the original judge had, on 31 October, made two mistakes.

One was dismissing as “not a serious suggestion” the Home Office proposal to send the children to France. The children had entered on 19 July. The hearing took place nearly three months later. At that hearing no evidence seems to have been put before the judge of any concrete efforts even to seek agreement from the French to send the children there. Indeed, as of 20 December, five months after the arrival of the children, no real progress was yet to be made other than agreeing it was a good idea in principle.

Maybe the judge’s phrasing was a little too strong, but in substance the judge seems to have been proven entirely correct by subsequent events.

The other mistake by the judge was dismissing as speculative and lacking in logic the Home Office concern about incentivising parents to put their children in small boats alone. Even though this was essentially an unreasoned assertion in the evidence before the judge. And the subsequent arguments by the Home Office really seem to boil down to “it would be cheaper for the parents”.

Ultimately, this case concerns two small boys aged nine and six. They became accidentally separated from their parents and thought their parents had drowned. The separation is extremely traumatic for them and they need to be with their parents. The British and French governments have proven entirely incapable of reuniting the children in France, for various reasons.

Personally, I can see the case for the children to have been rapidly and safely returned to France. It addresses any of the concerns about incentivisation or “rewarding” the parents for their behaviour, as much as I personally find these arguments unconvincing. In the absence of that happening, though, in the absence of any real progress and in the absence or an administrative or legal framework for dealing with such cases, it is hard to see how continued separation can be justified.

Compared to the tortuous process of the French authorities accepting the children back, it would be simpler and a lot quicker for the UK authorities to grant entry to the parents. That is quite an indictment of the French authorities, in my view, although it does not help that no-one told them where the parents actually were. Perhaps this comparison helps to explain why some asylum seekers do want to leave France and come to the UK, even though France is a safe country.

The French authorities should be doing more to assess asylum claims in France. Understandably, given that the French already process twice the number of asylum claims compared to the United Kingdom, any criticism of this nature by the British will irritate the French. The way to try to overcome this is surely for the British to accept transfer of some asylum claims from France. Any such transfer of claims from France would probably be greeted by howls of protest from the right and the far right. So we’re stuck, apparently. And in the absence of any such formal arrangements, young children remain unnecessarily separated from their parents for months instead of days.

Interested in refugee law? You might like Colin's book, imaginatively called "Refugee Law" and published by Bristol University Press.

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