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Supreme Court affirms reach of non-refoulement obligation to refugee children


The Supreme Court has today delivered its judgment in G v G [2021] UKSC 9, substantially allowing the appeal and holding that a child who can objectively be understood to be an applicant for asylum cannot be returned to the country from which they have sought refuge before the final determination of the asylum claim. The Court has also provided important guidance as to the relationship of the 1980 Hague Convention to asylum law. The 1980 Hague Convention is an international agreement incorporated into UK law which enables the prompt return of a wrongfully abducted child to his or her country of habitual residence.

In concluding that a Hague Convention return could not be implemented until the child’s asylum claim was determined, the Court re-affirmed that an individual who is a refugee (because, in short, they have a well-founded fear of persecution in their country of nationality) has a right not to be refouled, subject only to limited exceptions. That right does not depend on whether they have been granted status as a refugee. An individual who can be understood to be seeking refugee status is therefore protected from refoulement. An asylum application which lists a child as a dependant is also an asylum claim by that child if objectively it can be understood as such. The Supreme Court has held that this will normally be the case: the adult’s grounds for fearing persecution are likely to apply to their child, and an omission by the child to make an application in their own right cannot be determinative if it is the parent who would anyway have to make the application on the child’s behalf.

The Court held that the protection from refoulement of a child who can objectively be understood to be an applicant for asylum applies during the determination of their application by the Home Secretary. The effect of implementing a return order in 1980 HC proceedings in respect of a child asylum applicant is to return the child to the country from which they seek refuge. The Supreme Court has held that while the High Court can decide whether to make a return order, the return order cannot be implemented until the Home Secretary has determined the asylum claim. This is because there is no bar to the High Court deciding a Hague Convention application prior to the determination of the asylum claim, and that a reasoned judgment on whether the child should be returned, on the basis of evidence which will often overlap with the asylum claim and which has been tested by an adversarial process, may assist the prompt determination of the asylum claim by the Home Secretary. Further, the High Court has power to set aside its decision if the asylum claim is successful.

The Court also held that an asylum claim is not "determined" until the conclusion of any appeal, and that the implementation of a return order in Hague Convention proceedings in respect of a child with a pending in-country appeal would render the appeal process ineffective. The consequence is that a pending in-country appeal must therefore bar the implementation of a return order.

The judgment is here.

Malcolm Birdling appeared pro bono for the United Nations High Commissioner for Refugees (UNHCR), instructed by Baker McKenzie LLP (who also acted pro bono).