F v M & Anor

A Family Court cannot determine the merits of a child’s refugee status or order return to another jurisdiction while refugee status granted by the Secretary of State remains in force. Responsibility for granting and revoking that status rests with the Secretary of State under the statutory immigration framework.

Evidence arising in family proceedings may require consideration in a revocation decision, subject to public law principles. Disclosure of asylum material requires a fact-sensitive balancing exercise involving confidentiality, the refugee’s Convention rights and the applicant’s rights to participate effectively. The court rejected any presumption that disclosure is permissible only in an exceptional case.

The proceedings were remitted to the High Court after the Court of Appeal allowed appeals by M and A in Re H (A Child) [2016] EWCA Civ 988. F had sought the return of A to Pakistan. M and A were subsequently granted refugee status in the United Kingdom. The Secretary of State for the Home Department intervened as an interested party.

The hearing concerned preliminary legal issues arising from the interaction between wardship and immigration jurisdictions, including whether refugee status barred a return order, how it could be challenged, the role of family-court findings, and the disclosure of confidential asylum material.

The court determined the preliminary legal issues as follows.

1. Refugee status and jurisdiction. The determination and revocation of refugee status fell within an area entrusted by Parliament exclusively to the Secretary of State for the Home Department. The grant of asylum under the Immigration Rules was an exercise of statutory authority, not the Royal Prerogative. While the grant remained in force, it was an absolute bar to a Family Court order intended to return the child to another jurisdiction. The Family Court could not decide the refugee claim on its merits. The court relied on R W (A Minor) (Wardship: Jurisdiction: Jurisdiction) [1985] AC 791 and S and S and Others [2008] EWHC 2288.
2. Revocation and family-court findings. If evidence arising in the family proceedings was relevant to whether asylum had been obtained by decisive misrepresentation or omission, the Secretary of State was required to consider it. She bore the relevant burden under the Immigration Rules and had to act reasonably and rationally. A failure to consider relevant material could in principle be challenged by judicial review. The Family Court could hear evidence, make findings and release its judgment to the Secretary of State, but this did not transfer responsibility for refugee-status decisions to the Family Court.
3. Treaty framework. The Refugee Convention was an unincorporated treaty, but section 2 of the Asylum and Immigration Appeals Act 1993 prevented the Immigration Rules from establishing a practice contrary to it. The Convention and related instruments required a purposive interpretation consistent with their humanitarian aims.
4. Confidentiality and disclosure. Asylum information attracted a common-law duty of confidence and protection under Article 8. Disclosure required a genuine proportionality exercise weighing the refugee’s Article 3 and 8 rights and the strong public interest in confidentiality against the applicant’s Article 6 and 8 interests. Particular weight might be required where the applicant was the alleged persecutor. The court rejected a presumption that disclosure could occur only in an exceptional case, since that would undermine the balancing exercise.
5. Further hearing. Contact appeared to be the realistic issue, but the forthcoming hearing was not confined to contact because allegations of misrepresentation concerning both asylum claims remained relevant.

• Court of Appeal. M’s and A’s appeals were allowed, F was refused permission to appeal, and the orders dated 8 July 2015 and 26 February 2016 were set aside. The proceedings were remitted for fresh consideration, including the interaction between wardship and immigration jurisdictions, in Re H (A Child) [2016] EWCA Civ 988.
• High Court (Family Division). The present court determined the preliminary legal issues on the rehearing. A final hearing remained to follow.