UK: High Court of Justice on the principle of non-refoulement in a proposed return order case under Family Law

Wednesday, April 26, 2017

On 26 April 2017, the High Court of Justice (Family Division) delivered its judgment in case F v M & Anor [2017] EWHC 949 (Fam) related, inter alia, to the interplay between family law and immigration issues.
The case concerned a Pakistani-born child who lived with his parents in Saudi Arabia. He travelled with his mother to the UK for a holiday, with his father’s consent, but the mother failed to return the child to Saudi Arabia as had been agreed. The mother later applied for asylum for herself and her child, which included allegations against the father. The present case addressed the father’s allegations that the mother had made misrepresentations to the SSHD in making her asylum claim.
First, the High Court stated that the grant of refugee status to a child by the SSHD is an absolute bar to any order by the Family Court seeking to effect the return of a child. Second, the High Court concurred with the SSHD that confidentiality is a vital element for the working of the asylum system and the fulfilment of obligations under the Refugee Convention, the EU Qualification Directive and the European Convention on Human Rights (ECHR). The disclosure of information revealed during the asylum procedure should not take place unless subjected to a Court order following a balancing exercise. A “duty of confidence” by the state towards the claimant also arises from Article 8 ECHR and its ECtHR related jurisprudence.

This item was reproduced with the permission of ECRE from the weekly ELENA legal update supported by the Fundamental Rights and Citizenship Funding Programme and distributed by email. The purpose of these updates is to inform asylum lawyers and legal organizations supporting asylum seekers and refugees of recent developments in the field of asylum law. Please note that the information provided is taken from publicly available information on the internet. Every reasonable effort is made to make the content accurate and up to date at the time each item is published but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by ECRE, the IRC or its partners.



Child Specific Considerations
Family member
Vulnerable person