In re S (Children) (Child Abduction: Asylum Appeal)

Section 15 of the Immigration and Asylum Act 1999 uses the expressions “removed” and “required to leave” as immigration-law terms of art. Its prohibition is directed to the immigration authorities. It does not constrain the High Court’s wardship jurisdiction or create an exception to obligations arising under the Hague Convention.

The protection ends when notice of the Secretary of State’s decision on the asylum claim is given. A pending appeal does not extend section 15. A child included only as a dependant is not personally an asylum claimant protected by that section. Nevertheless, when exercising the wardship jurisdiction, a family judge should pay careful attention to any credible suggestion that return would expose a child to persecution.

The father sought the summary return to India of two children who had travelled to England with their mother. India was not a party to the Hague Convention, so the father invoked the High Court’s wardship jurisdiction. The mother subsequently claimed asylum, naming the children as dependants. The Secretary of State refused asylum but granted the mother and children four years’ exceptional leave to remain.

Bennett J found that return was in the children’s best interests and ordered their immediate return. The mother appealed, contending that section 15 of the Immigration and Asylum Act 1999 prohibited their removal while the asylum proceedings remained unresolved. The central issue was whether that statutory prohibition constrained the family court’s wardship jurisdiction.

1. Appeal dismissed unanimously. Laws LJ delivered the leading judgment. Rix and Thorpe LJJ agreed. Section 15 of the Immigration and Asylum Act 1999 did not prevent the High Court from ordering the children’s return to India in wardship proceedings.

2. The expressions “removed” and “required to leave” were terms of art throughout modern immigration legislation. Their statutory context, including section 15(2), showed that section 15 imposed a negative duty on the immigration authorities when administering immigration law. It did not occupy the wider field of judicial orders under the Hague Convention or the wardship jurisdiction. The approach in Sanusi v Secretary of State for the Home Department [1999] Imm AR 334 was followed and treated as consistent with Chief Adjudication Officer v Wolke [1997] 1 WLR 1640.

3. The breadth and importance of article 33 of the Refugee Convention did not justify construing section 15 more widely than its language and statutory context permitted. The separate question whether a family court must comply with article 33 as a freestanding instrument was not before the Court and was left undecided.

4. Even if section 15 could constrain a family court, its protection ended when the Secretary of State notified the claimant of the decision on the asylum claim. The mother received notice before Bennett J’s order. Any suspension pending appeal arose, where applicable, under Part II of Schedule 4, not section 15. Those provisions did not apply to her section 69(3) appeal because she had exceptional leave to remain.

5. The children were dependants rather than asylum applicants or appellants in their own right. They were therefore not persons protected by section 15. Rule 329 of the Immigration Rules protected dependants while the principal application remained undecided. The Secretary of State’s practice also protected them pending an appeal, subject to wholly exceptional justification for departure.

6. Laws LJ added that the paramountcy rule in section 1 of the Children Act 1989 required a family judge at least to pay very careful attention to a credible suggestion that return might expose a child to persecution. Thorpe LJ further emphasised, as a matter of practice, the desirability of improved communication between the family and immigration justice systems in concurrent international cases.

1. Court of Appeal: The mother’s appeal was dismissed unanimously. The court held that section 15 of the Immigration and Asylum Act 1999 did not constrain the wardship order.
2. High Court, Family Division: Bennett J ordered the children’s immediate return to India on 26 April 2002. He found that return was in their best interests and that section 15 did not prevent the order.