The Supreme Court has reiterated that — for now — UK law prohibits removal of a person “who can be understood to seek refugee status” and who has an outstanding asylum claim or appeal. The case is G v G [2021] UKSC 9 and involved a child whose mother was seeking asylum in the UK but whose father had brought international child abduction proceedings under the Hague Convention.

It is a timely judgment, given ongoing drip-fed leaks to the media about the idea of “offshore processing” of asylum claims. A careful reading reveals both the strengths and weaknesses of the regime for refugee protection, though. While the Refugee Convention in theory offers strong protection against removal to a country where the refugee might face persecution, this does not necessarily prevent removal to a safe country. In the UK the prohibition on removal depends on retained EU law and national laws, both of which are very much under threat.

Refugee status and non refoulement

The good news is that the Supreme Court reminds us all that refugeehood and the protection from refoulement (direct or indirect return to face persecution) which goes with it do not depend on a formal declaration of status:

Under the 1951 Geneva Convention recognition that an individual is a refugee is a declaratory act. The obligation not to refoule an individual arises by virtue of the fact that their circumstances meet the definition of “refugee”, not by reason of the recognition by a Contracting State that the definition is met. For this reason a refugee is protected from refoulement from the moment they enter the territory of a Contracting State whilst the State considers whether they should be granted refugee status.

Paragraph 81

This is also true under current domestic law, as the long line of cases cited by Lord Stephens in paragraph 82 goes to show.

The bad news is that the Supreme Court also reminds us that rights under the Refugee Convention are not directly enforceable in the UK by refugees. The UK has not fully incorporated the Refugee Convention into domestic law (paragraph 78; as I was saying just yesterday in a Twitter thread) and a refugee therefore cannot go to a court, assert a breach of the UN Convention and expect to have a judge prohibit removal on that basis. Instead, a refugee has to depend on some other implementing law to protect their rights. Happily, both the EU and previous UK governments have respected the Refugee Convention by incorporating this protection into law in the form of a blanket prohibition of removal from the territory.

But the UK has famously now left the EU (although for now has retained a lot of EU legislation, as discussed below). And Parliament can change national legislation when it likes. Besides, the Refugee Convention does not explicitly prevent removal to a safe third country — and I say this having spent most of yesterday reading the relevant bits of James Hathaway’s brand new second edition of The Rights of Refugees Under International Law.

Interaction of abduction and refugee proceedings

The Supreme Court’s judgment runs to 66 pages and 180 paragraphs. It is only at paragraph 115 that Lord Stephens turns to the outcome of the case, which was after all about the interaction of Hague Convention and Refugee Convention proceedings.

Firstly, an asylum application by a parent which includes a child dependent should be considered an application by the child “if objectively it can be understood as such” (para 117). Lord Stephens goes on to say that “generally speaking, such an application can (and should) objectively be understood as an application by the child” because it is inherently likely that any fear of persecution by the parent will also apply to the child, and the child cannot exercise choice about whether or not to make an application in their own right. This approach protects the child’s interests by ensuring that their status is considered (para 117) and also prevents potential abuse by the parent later lodging a separate application by the child for the purpose of prolonging proceedings (para 120).

Secondly, Hague Convention proceedings can proceed and be concluded before an asylum claim by the parent and/or child is decided but actual return must depend on the outcome of the asylum case. Findings made by a judge in the course of Hague Convention proceedings may well relate to the same issues arising in the asylum claim, but this is not incompatible with the Secretary of State’s legal duty to determine an asylum claim (paras 127-128, 156-157). The Hague Convention provides that in most cases, return must ordered unless there is “a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation”, which is not dissimilar to the threshold of harm in the Refugee Convention. However, where a judge in Hague Convention proceedings orders that a child should be returned to the originating country, this order should not be implemented until the Secretary of State has reached a decision on the asylum claim (paras 128-130).

Although section 77 of the Nationality, Immigration and Asylum Act 2002 does not prevent removal during Hague Convention proceedings because it specifically relates to removal “in accordance with a provision of the Immigration Acts”, paragraph 329 of the Immigration Rules and Article 7 of the Procedures Directive do apply (paras 131 to 133). The Procedures Directive applies through the EU law doctrine of direct effect, which was apparently imported along with the directive by “download and save” Brexit legislation (para 40).

The asylum claim is not considered to be concluded, and therefore a Hague Convention return cannot take place, until any appeal process is concluded (paras 140 and 152).

Thirdly, Hague Convention proceedings should proceed before an asylum claim is determined, or at least should not wait on an asylum decision (paras 160-162). This is said to have the benefit of

making available to the Secretary of State a reasoned High Court decision on the evidence available to it, and tested to an extent by an adversarial process, of an application for summary return.

Para 160

For myself, I am uncomfortable with the idea that the alleged persecutor effectively gets to take part in what will often turn out to be a critical element of the refugee status determination process. But that is not the way the Supreme Court conceptualises the issue: rather the left behind parent is participating in Hague Convention proceedings which may then generate material that is useful to the Refugee Convention proceedings.

Fourthly, the Secretary of State should be invited to intervene in Hague Convention proceedings in which an asylum issue arises, ensuring there is liaison and a clear line of communication between the courts and the Home Office (paras 166-167). Documents in the Hague Convention proceedings should be disclosed to the Secretary of State (para 169). The earlier Court of Appeal case of H (A Child) (Disclosure of Asylum Documents) [2020] EWCA Civ 1001 on disclosure of documents to the left behind parent is endorsed (para 170) and Lord Stephens goes on to say that

any disclosure exercise conducted in the 1980 Hague Convention proceedings would need to balance the systemic importance of maintaining confidentiality in the asylum process, together with the applicant parent’s and the child’s particular right to confidentiality in that process against the left-behind parent’s rights under articles 6 and 8 ECHR and the child’s rights under article 8 ECHR.

Para 173

Further, any asylum appeal running in parallel with Hague Convention proceedings should be assigned to a Family Division High Court judge or equivalent in Scotland or Northern Ireland (para 175). That should be interesting, given the lack of familiarity that such judges will have with asylum law, the asylum determination process or the oddities of Home Office representation.

Finally, standard case management directions are also proposed in an appendix, although Lord Stephens notes that there has been no wider consultation on these and it is not for the Supreme Court to dictate procedure.

Asylum claims by EU citizens

An an aside, the child in this case was in fact an EU citizen, although also a national of South Africa and had been born in and lived her whole previous life there (para 15). Nevertheless, for the purposes of the Qualification Directive she still seems to count as a “third country national” because the definition of that term does not exclude nationals of EU countries; the fact she held South African nationality was sufficient irrespective of any other additional nationalities.

The EU’s so-called Spanish Protocol, an annex to the Treaty of Amsterdam, states that EU member states “shall be regarded as constituting safe countries of origin in respect of each other for all legal and practical purposes in relation to asylum matters”. In UK domestic law, asylum claims by EU citizens are automatically considered inadmissible absent exceptional circumstances. And the Refugee Convention itself excludes from refugeehood a person with multiple nationalities who cannot make out a claim for each of those countries. Article 1A(2) includes this provision:

In the case of a person who has more than one nationality, the term “the country of his nationality” shall mean each of the countries of which he is a national, and a person shall not be deemed to be lacking the protection of the country of his nationality if, without any valid reason based on well-founded fear, he has not availed himself of the protection of one of the countries of which he is a national.

This is imported into UK law by the means of the Refugee or Person in Need of International Protection (Qualification) Regulations 2006, which simply import the whole of Article 1A. We should perhaps then not be surprised to note that the Supreme Court judgment tells us the child’s asylum application was refused on 4 February 2021 (appendix 1).

Finally, a shout out to some of the barristers instructed in the case. Jason Pobjoy, author of The Child in International Refugee Law was briefed for the mother, Zane Malik QC for the father, Dr S Chelvan, well known in immigration circles, for Southall Black Sisters, my old colleague Mehvish Chaudhry for the International Centre for Family Law, Policy and Practice and Raza Hussein QC for UNHCR. A total of 24 counsel were instructed, on behalf of six interveners as well as the two parties.