2021 Supreme Court Case (G vs G) Confirms Abducted Children At Risk of Persecution Cannot be Returned Home Until Their Asylum Claim is Assessed

On 19th March 2021, the Supreme Court handed down its ruling on an appeal which involved the interplay of both the 1980 Hague Convention (1980 HC) and immigration asylum law, in the case of G vs G. The 1980 HC is intended to ensure the speedy removal of children who have been abducted back to their home country (or the country where they live). In the 2020 case of Re G (A Child) (Child Abduction), the Court of Appeal ruled that a child cannot be returned until the asylum application process has been completed, but only if they make an asylum application in their own right. If they are included in the parent’s application, they can be returned prior to the conclusion of the application process. This was the crux of the Supreme Court case. In this article, we will explain the outcome and the reasoning behind the Supreme Court’s decision in G vs G regarding the return of abducted children.

What Was The Background To The Case?

The case centred around an eight-year-old girl (“G”) who was born and had lived in South Africa her whole life. In March 2020, G’s mother wrongfully removed her from South Africa to live in England. Doing so breached the father’s right of custody. In response, G’s father applied to the Court using the Hague Convention to have his daughter returned home immediately. This was opposed by G’s mother on the grounds of there being a “grave risk that return would expose G to physical or psychological harm or otherwise place her in an intolerable situation”.

At the root of the reason for the concern for G’s safety was that the mother identified as lesbian, and as a result, she had been subjected to death threats, violence, and persecution by her own family. This fear of persecution from her family was the basis of her asylum claim in England, on which she had included G as her dependant. One of the tenets of asylum immigration law is that those who apply should be kept safe and not required to return to where there evidence of persecution. Sending an asylum seeker back home unlawfully is referred to as “refoulement”.

What Was The Basis Of The Supreme Court Case?

The Supreme Court was asked to consider the 2020 Court of Appeal decision, and hence whether G should be protected from refoulement because she was included on her mother’s application for asylum. In other words, can the Hague Convention be used to send an asylum seeker back to their point of origin immediately if they are included on their parent’s application, and this has not been processed? This also brings about questions regarding the applicability of the 1980 HC, given that application can often take months or even years to process, and specifically if the impact on the child’s relationship with the parent left behind may be irreparably damaged.

What Was The Supreme Court’s Decision In G vs G?

The judgment in the case was as follows:

“The Supreme Court substantially allows the mother’s appeal and holds that a child who can objectively be understood to be an applicant for asylum cannot be returned to the country from which he or she has sought refuge before the final determination of the asylum claim. The case is remitted to the High Court for reconsideration of the 1980 HC application on that basis. Lord Stephens gives the only judgment, with which all members of the Court agree”. As such, the Supreme Court overruled the decision made by the Court of Appeal in 2020 and upheld the rights of G to stay in the UK until a decision on her asylum application had been processed.

Why Did The Supreme Court Disagree With The Court Of Appeal?

At the core of the decision was the fact that G had a right not to be returned unlawfully if there is a well-founded fear of persecution. This is why this case gets to the heart of the intersection between the 1980 HC and asylum law. The right to protection is not dependant on whether the applicant has been granted refugee status; it applies even if the decision is still pending. In addition, because the child had been included on her mother’s application for asylum, it follows that “the adult’s grounds for fearing persecution are likely to apply to their child, and an omission by the child to make an application in their own right cannot be determinative if it is the parent who would anyway have to make the application on the child’s behalf”. The reasoning went on to say, “While the High Court can decide whether to make a return order, the return order cannot be implemented until the Home Secretary has determined the asylum claim”. As such, even if a return order is issued, it cannot be carried out to return the child until the asylum application process is concluded.

The Court also made the point that an asylum claim is not finalised until the end of any appeal which may be lodged. And because this can take a long time, this may have a “devastating” impact on the 1980 HC proceedings. For this reason, further action is needed by the legal and immigration systems to find a solution for future cases. Any such cases need to be swiftly considered in order to uphold the principles of the 1980 HC. This may include a new process involving the intervention of the Home Secretary and an expedited process for asylum applications with concurrent 1980 HC proceedings.

Final words

The Supreme Court ruling provided much-needed clarity on cases involving both asylum and Hague Convention applications. It has also raised concerns that will need to be addressed to strengthen the process for future asylum seekers, including children in this difficult situation.