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Family Section

FE v YE [2017] EWHC 2165 (Fam)

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Grant of asylum prevents later return order being made so asylum process halts Hague proceedings. 

Can an asylum claim stop an application made under the Hague Convention 1980? 

The children were twins aged 7; their Israeli mother (’M’) had removed the children from Israel to the UK in July 2016. M had applied for asylum for both herself and the children. The father (’F’) issued Hague proceedings in January 2017 and it was agreed that the Hague proceedings would not be heard until the asylum claims had been dealt with. On 4 August 2017, the asylum claims were all refused. The Home Secretary argued that while an asylum application was pending (i.e. an application that has not exhausted all rights of appeal) a return order could not be implemented. 

Having reviewed the relevant legislation, Mr Justice Mostyn concludes that where a grant of asylum has been made by the Home Secretary, it is impossible for a court later to order a return of a child under Hague 1980. Equally, he states, it is impossible for a return order to be made while an asylum claim is pending (including all rights of appeal). 

Where there is a pending appeal on the asylum claim, it is both possible and desirable for the court to hear the return application under the 1980 Hague Convention but to provide that no return order shall take effect until, at the earliest, 15 days after the promulgation of the decision by the tribunal.  In this case, Mostyn J rejected M’s defences to the return order being made and orders the children should go back to Israel but that the order was not to take effect until 15 days after the promulgation by the First-tier Tribunal of its decision on the appeal by M and the children against the refusal of asylum. If the appeal were allowed, the order would be stayed. If dismissed, but M demonstrated an intention to appeal on a point of law, then the case would be returned to Mostyn J to determine whether the return order should be further stayed or implemented.

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