FE v YE

A pending asylum claim prevents implementation of a return order under the 1980 Hague Convention, and a grant of asylum is an absolute bar to making or implementing such an order. The reason is the substantive non-refoulement protection under refugee law, which cannot be displaced by the Hague Convention’s interim procedural return mechanism.

The existence and resolution of an asylum claim constitute exceptional circumstances under article 11.3 of the Brussels 2 revised regulation (No. 2201/2003). Where asylum is refused but an appeal to the First-tier Tribunal remains, the Hague application may be determined, but implementation must await the appeal outcome and any further judicial assessment.

The father applied under the 1980 Hague Convention for the return to Israel of his seven-year-old twins, who had been brought to England by their mother. The mother and children claimed asylum. The Home Secretary refused the claims on 4 August 2017, shortly before the hearing, and appeals to the First-tier Tribunal were pending.

The Secretary of State intervened, arguing that a grant of asylum absolutely barred a return order and that a pending claim prevented implementation. The court considered the interaction between the Hague return regime and non-refoulement obligations, the effect of the pending appeals, and the mother’s Convention defences.

1. Disposition. The mother’s defences were rejected. The court ordered that the children be returned to Israel, but directed that the order should not take effect until 15 days after the First-tier Tribunal promulgated its decision on the asylum appeals.
2. Nature of the conflict. Relief under the 1980 Hague Convention is interim and procedural. It returns a child to the state of habitual residence so that the courts there can determine the child’s long-term welfare. Refugee protection under the 1951 Convention is substantive and includes non-refoulement. The potential harm from refoulement is qualitatively more serious and less readily curable than delay in Hague proceedings.
3. Effect of asylum proceedings. A grant of asylum by the Home Secretary makes a Hague return order impossible. Before the asylum claim has been determined, no return order can properly be made because implementation would breach non-refoulement. The existence and resolution of the asylum claim amount to exceptional circumstances under article 11.3 of the Brussels 2 revised regulation (No. 2201/2003). Article 20 of the 1980 Convention would also provide a source of power to refuse return.
4. Pending appeal. After refusal of asylum, the Hague court may hear and determine the return application. However, implementation must be barred at least until 15 days after the First-tier Tribunal’s decision. If the appeal succeeds, the return order must be stayed. If it fails and further appeal is contemplated, the court may assess the prospects of that appeal before deciding whether to impose a further stay. The absolute bar extends through the First-tier Tribunal appeal; thereafter the question is discretionary.
5. Exclusive asylum determination. The Hague court cannot substitute its own assessment of persecution risk for that of the designated asylum decision-maker, namely the Home Secretary and, on appeal, the First-tier Tribunal. The court therefore rejected the approach in AMRI v KER [2011] ONCA 417 and Sanchez v RGL (2015) 761 F.3d 495. It agreed with F v M & Anor [2017] EWHC 949 (Fam) that refugee status is an absolute bar to a return order.
6. Safeguards and expedition. The mother’s evidence was summarily assessed as lacking objective foundation, and the court found that Israeli protective measures and relocation safeguards neutralised the alleged risks. In parallel proceedings, the Home Secretary and the First-tier Tribunal should be informed promptly and urged to determine the asylum issues with maximum speed.

This was a first-instance application. The father issued Hague proceedings on 13 January 2017. The hearing was deferred pending the Home Secretary’s asylum decision of 4 August 2017; appeals by the mother and children to the First-tier Tribunal were pending when judgment was delivered. No earlier judicial decision is stated.