UK: the interplay between the Geneva Convention and the Hague Convention

Tuesday, September 15, 2020

On 15 September 2020, the Court of Appeal ruled that, where a child has been granted refugee status in their own right, or has its own pending asylum claim, it cannot be returned under the Hague Convention. However, in case a child is dependent on another asylum claim, the child can be returned.

G is an 8-year old South African national, whose mother brought her to the UK and claimed asylum, adding G as dependent on her claim. G’s father, who is divorced from her mother, applied with the South African authorities for the return of his child under the 1980 Hague Convention on child abduction.

In its assessment, the Court of Appeal highlighted the opposition between the objectives of refugee law and child abduction law: where the latter’s objective is to expeditiously return a wrongfully removed or retained child to her home jurisdiction, the former’s objective is to prevent refoulement of individuals, including the very same children. The Court subdivided ‘refugee children’ into three separate categories: (i) children with refugee status, who cannot be returned under the Hague Convention to the country from which they have fled or to a third country that risks to remove them to that country; (ii) children with self-standing pending asylum claims at the Secretary of State who also cannot be returned under the Hague Convention while the claim is pending; (iii) children who are dependent on a principal applicant’s asylum claim and who can be returned under the UK Immigration rules. Those rules exist to preserve family life rather than refugee rights and the Hague Convention itself is driven by welfare considerations and the principle of family unity. Finally, the Court ruled that the Hague Convention only works as a bar in the implementation of a return order. On the contrary, the determination and making of an application for a return order are not barred by the Hague Convention and if a return order is made, the family judge may be required to stay the implementation until a refugee status decision is taken.

In the case at hand, the Court of Appeal concluded that on the basis of the facts of the case at stake the Family Division was not barred from making a decision on the return application and highlighted that if the Division issued a return order, this could be implemented, as G is a dependent on her mother’s claim. 

Photo: Matthias Ripp, January 2016, Flickr (CC)

This item was reproduced with the permission of ECRE from the ELENA Weekly Legal Update. 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.                               

Best interest of the child
Child Specific Considerations
Family unity (right to)