Re: S (Children)

At the permission stage, the court did not finally construe section 15 of the Immigration and Asylum Act 1999. It held that it was arguable that the provision’s apparently unqualified prohibition on removal might extend to removal by court order, rather than only executive removal. It was also arguable that any prohibition might protect dependent children, even though they had made no separate asylum claims. The lower judge’s contrary interpretation did not make those issues unarguable. Further evidence about the mother’s decision not to return was immaterial to any arguable appeal point.

The father invoked the wardship jurisdiction of the High Court (Family Division), seeking the return of two children to India. Bennett J ordered their return on 24 April 2002. The mother had applied for asylum and named the children as dependants, although they had made no separate asylum claims. India had not ratified the Hague Convention on international child abduction.

The mother sought permission to appeal. The principal issue was whether section 15 of the Immigration and Asylum Act 1999 prevented removal pursuant to a court order and, if so, whether the protection extended to dependent children. She also sought to adduce further evidence concerning her decision not to return to India.

Permission to appeal was granted unanimously. Laws LJ gave the reasons, and Thorpe LJ agreed.

1. The central question was whether it was arguable that section 15 of the Immigration and Asylum Act 1999 prevented removal by order of a court. Bennett J had construed the provision as restraining executive removal only, leaving a family judge able to order a child’s return under the court’s relevant powers.
2. The Court of Appeal considered that construction persuasive but held that the statutory wording appeared unqualified. It could not be said that the question was beyond argument. The substantive meaning and application of section 15 were therefore left for the expedited appeal.
3. It was separately arguable that any prohibition extended to dependants of an asylum applicant, despite the children having made no independent asylum claims.
4. Further evidence that the mother had decided not to return to India herself was not relevant to any arguable ground of appeal and was not admitted.
5. Paragraph 1 of the High Court’s order was stayed pending determination of the appeal. The appeal was to be expedited, with a half-day time estimate and, if practicable, a constitution including Thorpe LJ, Laws LJ and another Lord Justice.

1. Court of Appeal (Civil Division) — Permission to appeal was granted on 9 May 2002. The return order was stayed and an expedited appeal directed. [2002] EWCA Civ 787.
2. High Court (Family Division) — Bennett J ordered the children’s return to India on 24 April 2002, following the father’s wardship application.