K (Children) (Application for return orders: Concurrent asylum claims), Re

The High Court may assess whether a child can safely be returned to another State before determining the child’s asylum claim, provided the principle of non-refoulement is upheld.

The prohibition identified in G v G depended on article 7 of the Procedures Directive and the former rule 329 of the Immigration Rules. Following legislative and regulatory changes, that enhanced protection no longer applies. Return may therefore be ordered to the country of nationality where there is no persecution risk, or to a safe third country.

Two children travelled from France to the United Kingdom without their parents and were accommodated by Kent County Council under section 20 of the Children Act 1989. The children were treated as having made asylum claims in the United Kingdom. Their parents remained in France and sought entry clearance.

Kent applied under the inherent jurisdiction for orders facilitating the children’s return to France. The parties agreed the jurisdictional basis and permission issue. The central issue was whether a return order could be implemented before the Secretary of State had determined the children’s asylum claims, in light of G v G.

1. The court held that the High Court was not prevented from implementing a return decision before determination of a child’s asylum claim, provided that the general principle of non-refoulement was respected.

2. The conclusion in G v G that a return order could not be implemented pending determination of an asylum claim was based directly on article 7 of the Procedures Directive and former rule 329 of the Immigration Rules. Those provisions no longer apply in the same way. The amended section 77 of the Nationality, Immigration and Asylum Act 2002 permits removal to a safe third country pending determination of an asylum claim, subject to the statutory safeguards.

3. Article 21 of the Qualification Directive did not extend the protection beyond the general non-refoulement obligation in article 33(1) of the 1951 Geneva Convention. That obligation prohibits return where there is a real risk of persecution or refoulement, but permits return to a safe third country.

4. The family court retained responsibility for deciding welfare and return questions within its own jurisdiction. It could not determine asylum claims or trespass on the Secretary of State’s exclusive immigration functions. It could, however, assess whether the proposed destination was safe and whether return would breach non-refoulement, as part of the holistic welfare or return assessment.

5. The court respectfully agreed with the reasoning in In the matter of AB (A Minor) and the two decisions in Re A. The return issue was accordingly determined on the basis that immigration and asylum law no longer imposed an absolute bar on implementation before the asylum claims were decided.