B e f o r e :
MR JUSTICE HAYDEN ____________________
____________________
Ms D Fottrell QC, Mr T Wilson & Ms M Brewer (instructed by Goodman Ray Solicitors) for the Applicant Mr H Setright QC & Mr B Jubb (instructed by Maya Solicitors) for the 1st Respondent Mr D Williams QC & Ms J Renton (instructed by Freeman Solicitors) for the 2nd Respondent Mr Norton QC & Mr A Payne (instructed by GLD) for the Secretary of State for the Home Department Ms Kathryn Cronin and Ms Julia Gasparro (instructed by JCWI) for the Interested Party Hearing dates: 29th, 30th & 31st March 2017 ____________________
HTML VERSION OF JUDGMENT APPROVED ____________________
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Mr Justice Hayden :
This matter comes before me pursuant to a direction of the Court of Appeal for rehearing, following the successful appeal in Re H (A Child) [2016] EWCA Civ 988 . At this stage I am addressing some preliminary legal issues identified by Black LJ in her judgment. The background history has been distilled to a number of uncontroversial key facts.
Background
The Father (F) was born in Pakistan on 14 th April 1976. He is a Pakistan national. The mother (M) was born in Pakistan on 18 June 1977. She is also a Pakistan national. M and F married on 15 August 2002.
On 4 April 2006, A was born in Lahore, Pakistan. A's twin sadly died 3 hours after he was delivered by caesarean section. A lived with F and M in Pakistan until May 2012 when he moved with M to Saudi Arabia, F having already relocated to Riyadh, Saudi Arabia in October 2011 for the purposes of his employment.
On 19 August 2014, A arrived in this jurisdiction with M for a visit, which had been arranged with the consent of F. A return flight to Saudi Arabia had been booked for the M and A departing on 11 September 2014. M did not return to Pakistan as had been agreed between the parents. On 6 September 2014, F came to this jurisdiction and there was an argument between M and F. F was arrested but released without charge and returned to Saudi Arabia, alone, on 11 September 2014. M and A have remained in this jurisdiction since that date.
On 15 September 2014 M sought asylum in the UK. On 11 October 2014 F issued proceedings for divorce in Pakistan but they have lapsed now, due to passage of time. On 9 December 2014 A's visa to reside in Saudi Arabia expired. In December 2014, A commenced his schooling in this jurisdiction. On 6 February 2015 M and A's visitor visa for the UK expired.
On 10 March 2015, proceedings commenced in the High Court, on a without notice basis, seeking the summary return of A to Pakistan. A was made a Ward of Court. On 30 March 2015 M was served with the court documents. An inter partes hearing on 14 April 2015 and again on 15 May 2015 before Russell J who gave case management directions ( inter alia ) directing that a CAFCASS report be prepared. On 24 June 2015 A had a meeting with a Cafcass officer, Mr McGavin.
Application for Asylum
On 26 June 2015, A applied for asylum in the United Kingdom to the Secretary of State for the Home Department ("SSHD"). On 8 July 2015, the final hearing took place in respect of F's application for what was said to be the 'summary return' of A to Pakistan. During the afternoon of that hearing, F and M entered into a Consent Order which provided for A's return to Pakistan by 5 August 2015. Both F and M gave undertakings to the court. M's included an undertaking to withdraw her asylum application and that of A.
In the event M did not withdraw either asylum application, and A did not travel to Pakistan. On 6 August 2015, F applied to enforce the order dated 8 July 2015 on a without notice application. On 12 August 2015 the case was listed (inter partes) and M applied to set aside the order dated 8 July 2015, claiming that she had not validly consented to it. On 23 September 2015 the Home Office informed M's solicitors that the SSHD was not agreeable to disclose the details of M's asylum application (it having been sought by F) as she had made allegations against the F in her asylum claim.
On 27 October 2015, M and A were granted, separately, 'refugee status' in the United Kingdom, by the Secretary of State for the Home Department. This has been generally referred to by the parties as 'grant of asylum'. On 28 October 2015, Mr McGavin of Cafcass attempted to supervise a contact between F and A. That contact was unsuccessful as A refused to see F.
The terms of the order dated, 29 October 2015, invited Mr McGavin to consider whether A should be separately represented in the proceedings. Though the order does not record it, counsel before me have agreed that this measure was thought necessary in light of the terms of the order for A's return to Pakistan; the applications before the court to set aside that order; the grant of asylum to the child in his own right (my emphasis) and the lack of contact between the child and the father.
On 17 November 2015, again pursuant to the order dated 29 October 2015, Mr McGavin wrote to the Court stating that he could see no way in which the case could be satisfactorily resolved without the Court hearing evidence and making findings in relation to the serious allegations made against F. Further, Mr McGavin stated that the Cafcass High Court Team were in a position to appoint a Guardian for A, once a fact finding hearing had taken place.
On 2 February 2016, at a directions hearing, Her Honour Judge Jakens (sitting as a Deputy High Court Judge) refused M's application for A to be joined to the proceedings. On 26 February 2016, His Honour Judge Bromilow (also sitting as a Deputy High Court Judge) dismissed M's application to set aside the order dated 8 July 2015 and granted F's cross application to enforce the order. As a consequence, HHJ Bromilow went on to order A's return to Pakistan forthwith and by no later than 23.59 hrs on 5 April 2016. Mr McGavin was directed to meet with A to inform him of the decision. M applied to HHJ Bromilow for permission to appeal and also for a stay, which applications were refused and thereafter M applied to the Court of Appeal for the same relief.
On 10 March 2016, Mr McGavin emailed the parties' solicitors stating that he had spoken to A about HHJ Bromilow's decision. Mr McGavin noted that A continued to object to the decision the judge had made.
The Appeal
On 22 March 2016, McFarlane LJ granted M permission to appeal and a stay. On 20 June 2016, A met with Ms Laura Coyle of Freemans Solicitors. On 30 June 2016, A applied to become a party to the proceedings and for permission to appeal. On 6 July 2016, Black LJ granted A's applications. On 13 July 2016 – 14 July 2016, the Court of Appeal (Moore-Bick, Longmore and Black LJJ's) heard the appeals of M and A, and a cross application by F for permission to appeal.
On 11 October 2016, the Court of Appeal handed down its judgment. M's and A's appeals were granted, and F was refused permission. The consequence of the Court of Appeal's judgment was that the orders of Her Honour Judge Finnerty, dated 8 July 2015 and the Order of HHJ Bromilow, dated 26 February 2016 were set aside and the proceedings were remitted to a High Court Judge for fresh consideration, in particular for consideration of the interplay between the wardship and immigration jurisdictions in light of the fact that M and A had both been granted asylum by SSHD.
The Re-hearing
On 2 November 2016, the first directions hearing took place in the High Court before Cobb J. Various case management directions were given to facilitate two hearings: a preliminary legal issues hearing, and a final hearing. The SSHD was invited to intervene in the proceedings, and further disclosure was requested from the SSHD in respect of M's and A's asylum claims. The questions for the court to focus on in respect of the preliminary legal issues hearing were also made clear and attached to the order. The Cafcass High Court Team was ordered to ensure that Mr McGavin was not the author of any further Cafcass report if so directed (a report not being ordered at this stage.) Ms Coyle was appointed as A's Guardian in the proceedings.
On 19 January 2017, a further case management hearing took place. The Secretary of State, on her application, was granted Interested Party status. The issues for determination at the preliminary hearing were expanded, and further case management directions were given.
In her judgment Black LJ made the following observations which formed the framework to this hearing:
Earlier in her judgment Black LJ makes the following comment:
I am pleased to say that I have been afforded precisely the kind of assistance that Black LJ had contemplated. The Secretary of State instructed leading counsel, specialising in family law, Mr Andrew Norton QC, and very experienced immigration counsel, Mr Alan Payne. They produced a carefully analysed and impressively researched written argument which has been of great help not only to me but to all the parties in the case. On the 21 st March 2017 I also granted permission for the Joint Counsel for the Welfare of Immigrants (JCWI) to intervene to make representations. JCWI is an independent National harity established in 1967. It provides direct legal advice in the sphere of UK immigration policies and undertakes research, policy and campaigning work, including on the impact on children of immigration laws. Amongst its wider work I note that JCWI participated, on behalf of the Office of the Children's Commissioner, in a co-authored report entitled ' The Impact on Children of the Family Migration Rules: A Review of the Financial Requirements (2015) '. Ms Kathryn Cronin and Ms Julia Gasparro, acting on behalf of JCWI, have provided an erudite analysis of the status of the Refugee Convention.
Such was the range of the argument advanced on behalf of the SSHD that is was necessary for her, through counsel, to apply for extension to the time limits set by this Court. Whilst those applications were properly made and for understandable reasons, it meant that the other parties had only a few days to consider their response, as I was not prepared to contemplate further delay for the child. SSHD considered that ' this case raises important issues related to the interpretation and application of asylum law in the context of family proceedings'. By the time this hearing commenced a very broad level of agreement had been reached between the parties. Given the range of interests present and represented in this courtroom the agreement itself carries authority.
The first question identified by the Court of Appeal is whether A's refugee status is an absolute bar to the family court ordering his return to Pakistan? It follows that if the answer to this question is 'yes' most of the remaining questions either fall away entirely or diminish in significance.
The starting point in analysing the central question is the EU Council Directive 2005/85/ EC . (The Procedures Directive 'PD'), which provides for 'minimum standards on procedures in Member States for granting and withdrawing refugee status'. Article 4 (1) of which, provides that ' Member States shall designate for all procedures a determining authority which will be responsible for an appropriate examination of the applications in accordance with this Directive… '.
Article 7 (1) sets out the scope of the inquiry and procedure that is involved:
The PD also provides for the revocation of refugee status which plainly falls to be considered here and thus requires to be stated:
Article 41 must also be emphasised, for reasons expanded below. This obliges a Members State to
In the UK, in compliance with this framework of requirements Parliament has, through the immigration rules (HC395), appointed the Secretary for State for the Home Department as the designated 'determining authority' . As such, it is the SSHD who has sole responsibility for investigating and determining claims for international protection. Paragraph 334 of the Immigration Rules (HC395) confers the status of 'refugee' on a child. For the sake of completeness, the Immigration Rules are made pursuant to the Immigration Act 1971 (the '1971 Act'). Accordingly and given that these powers are rooted within this statutory framework, the SSHD submits, and I agree, that the grant of asylum is not made pursuant to Royal Prerogative but reflects an exercise of statutory authority. No party has sought, at this hearing, to argue to the contrary. This discrete question has, to my mind, now been comprehensively resolved by the Supreme Court: Munir v SSHD [2012] UK SC 32 :
The 1951 Geneva Convention relating to the status of refugees (the Refugee Convention ) and the right not to be refouled.
Again, it is necessary here to consider the relevant framework of the 'Refugee Convention'.
However, within the ambit of the issues that fall for consideration here the following substantive rights are relevant:
It is very clear now that the 'Refugee Convention' is to be interpreted in accordance with the Vienna Convention (see e.g. Memorandum 2001 at para 2). There is no need for me to set this out here as it has been expressly recognised, see, e.g., R (ST) v Secretary of State for the Home Department [2012] 2 AC 135 at [para 30]; R v Asfaw [2008] 1 AC 1061 at [para125]) .
Article 31(1) of the Vienna Convention requires a decision maker to interpret a treaty:
Article 31(2) recognises the Preamble as part of the context for the purposes of the interpretation of a treaty. The Preamble to the Convention states that the object of the Convention is to endeavour " to assure refugees the widest possible exercise of [their] fundamental rights and freedom ". The Convention is to have a purposive construction consistent with its humanitarian aims (see, e.g., R v Asfaw (supra) at para 11; HJ (Iran) v Secretary of State for the Home Department [2011] 1 AC 596 at para14; RT (Zimbabwe) v Secretary of State for the Home Department [2013] 1 AC 152 ) .
I agree with Mr Payne's analysis, it follows from the above that the governmental, administrative, judicial bodies of Member States are required to adopt an approach to those seeking or granted asylum that furthers the objectives of the Convention, to do otherwise would frustrate its primary purpose, see further EN(Serbia v Secretary of State for the Home Department [2011] 1 AC 596 at [para 58] : The Convention also affects the lawfulness of administrative practices and procedures, as Lord Steyn put it:
Mr Payne properly highlights the fact that the Refugee Convention is an unincorporated international treaty; see R v Asfaw Lord Hope at [para 69], Lord Carswell at [para 118] and Lord Bingham at [para 28]): -
Nonetheless, by a very forceful side wind, the Refugee Convention gains effect by s.2 of the Asylum and Immigration Appeals Act 1993 , entitled 'Primacy of Convention'. This provides that:
Along with the PD, Council Directive 2004/83/EC (the Qualification Directive 'QD') also falls to be considered. Though 'refugee' bears the same definition in the QD to that in the Refugee Convention, it requires Member States to grant those whose circumstances are considered, to meet the relevant criteria for refugee status (Article 13).
The QD is entitled: "minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted".
The QD expressly provides, in Preamble 12, that 'the best interests of the child' should be a primary consideration of Member States when implementing this Directive. It recognises, in conformity with the Convention, that: the recognition of refugee status is a declaratory act. [Preamble, [para 14];
Like the Convention, the QD also facilitates protection against refoulement. (the forcible return of refugees or asylum seekers to a country where they are liable to be subjected to persecution). Thus:
In contrast to the Convention, the QD, subject to certain conditions and/or limitations also requires:
Cumulatively, there emerges from this raft of interconnected material a clear answer to the central question identified by the Court of Appeal: the determination of the refugee status of any adult or child falls entirely within 'an area entrusted by Parliament to a particular public authority'. In this case the public authority is the SSHD.
The ramifications of such a conclusion were analysed by Lord Scarman in R W (A Minor) (Wardship: Jurisdiction: Jurisdiction) [1985] AC 791 at para 797.
In S and S and Others [2008] EWHC 2288 Munby J (as he then was) identified and emphasised a very clear jurisdictional line:
Accordingly, it seems clear 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 to an alternative jurisdiction. Ms Fottrell QC, on behalf of F, has been reluctant to yield to this unambivalent statement of principle, at least expressed in such stark terms. She contends that the options for the child within the family court are not neutralised by the supremacy of the SSHD's authority. By this she means that there are a range of alternatives which might encourage or indeed require the SSHD to reconsider her decision in the light of findings made in the Family Court on the basis of evidence to which she has not had access. This however, whilst a valid point, is not the same one. Determination of refugee status itself and therefore its consequences is the SSHD's sole responsibility.
Ms Fottrell's arguments were anticipated by the second question posed by Black LJ i.e. by what process the father can challenge the refugee status given that he denies the allegations of violence by the mother and upon which the asylum claims of both mother and child were based. Here it is important to emphasise the SSHD is actively obliged, pursuant to the Immigration Rules, to revoke the grant of asylum where she is satisfied that the evidence establishes that:
In their written submissions, Messrs Norton and Payne recognise that, in addition to the requirements set out by the Rules, the SSHD must ensure that her decisions and the procedures that underpin them comply with the tenets of Administrative Law. These principles have evolved considerably over the past two decades and cannot easily be condensed. It suffices to say that for the SSHD's position to be lawful, it must be both 'reasonable' and 'rational'. Thus it will not permit her, for example, to give manifestly inappropriate weight to any particular factor. It will not permit inconsistent, arbitrary or uncertain conclusions. This is reflected in the submission on the Secretary of State's behalf:
To this I would add that, in addition to the above, a misdirection in fact or law may form the basis of judicial review: see Secretary of State for Education and Science v Tameside MBC [1977] AC 1014 ; Hollis v Secretary of State for the Environment (1984) 47 P and C.R . 351 . Where facts in issue fall within a category prescribed by statute there may arise a question of mixed law and fact, since it entails a determination of the legal ambit of that category. This said, an application for judicial review based on mistaken fact and or law is always likely to face significant hurdles. Ms Fottrell submits that an application for judicial review may be 'largely illusory'. Mr Norton and Mr Payne respond to the father's contention in this way:
Properly deconstructed, these submissions are, in my assessment, primarily directed to the question of disclosure of documentation by the SSHD. It is not necessary for me further to burden this judgment with the detailed history of the disclosure which took place in this case. Suffice it to say that, following a number of politely phrased requests, prefacing orders made by Hogg J, disclosure was forthcoming. That is not, however, the route the SSHD proposes should be followed in future. I suspect that the response in this case, now asserted by Mr Norton to have been erroneous, came about in consequence of the Department's lawyers conflating requests for information in relation to immigration, visa and passport applications, in family proceedings with requests relating to the grant of asylum. The two are very different. In the case of the former, request is made by standardised form, EX660. This process follows guidance from the President of the Family Division in October 2014: Communicating with the Home Office in Family Proceedings (see FPR PD 12 F, Annex 1). This was expanded upon in Re M and N (Parallel Family and Immigration Proceedings) [2008] 2 FLR 2030 and again reiterated in RE C (A Child) [2013] EWCA Civ 431 :
The objective underpinning this guidance is to enable the Family Court to take decisions relating to children, in timescales which keep their needs in sharp focus and avoid delay. Passport and visa applications relating to children will often need to be resolved before the Court can make decisions in their best interest. An application for Asylum however, has an entirely different complexion to it. It will invariably involve material of a highly distressing and personal nature. Asylum seekers are informed, precisely because of these often exquisitely sensitive issues, that the information they provide will be treated as confidential and will only be disclosed where there is a requirement in law to do so. As Mr Norton emphasised, this is made plain to those seeking asylum in very clear terms at the start of the asylum process.
This emphasis on confidentiality is fretted throughout the investigative process. In order to maintain confidentiality, examinations are always conducted in private in circumstances where, as Mr Norton puts it 'the individual has a reasonable expectation that their privacy would be protected'. He submits
This approach finds support in the obligations imposed by Articles 22 and 41 PD, specifically, Article 41 obliges the Member States to:
Further, to summarise the submission on this point, it is contended on behalf of the SSHD that it is axiomatic that information pertaining to any asylum claim is, in the light of its sensitive nature, rarely in the public domain. In their written document Mr Norton and Mr Payne make the following, and in my judgement, compelling submission:
Procedural Obligations
Ms Fottrell submits, and I agree, that F and A's rights Article 8 ECHR are engaged in these proceedings and in any administrative process which has the effect of curtailing their relationships with each other. She refers me to Monory v Romania and Hungary (Application no. 71099/01, 5 April 2005) at [70]:
Moreover, Ms Fottrell contends that it is also clear from European jurisprudence that Article 8 imposes on States a positive procedural obligation to maintain a fair, efficient and effective mechanism for determining the issue of return in the context of abducted children brought from other jurisdictions, see, for example: Maumousseau and Washington v France (Application no. 39388/05, 6 December 2007); Neulinger and Shuruk v Switzerland (Application no. 41615/07, 6 July 2010) and Karrer v Romania (Application no. 16965/10, 21 February 2012).
In their written submissions Ms Fottrell and Mr Wilson highlight the ECHR's observations in: Maumousseau and Washington , where the Court stated at [83]:
In the context of applications under the 1980 Hague Convention, Ms Fottrell points out that the Court has also emphasised, in a number of cases, the positive obligation to undertake an 'in-depth examination' . In Neulinger and Shuruk , the Court stated as follows, at [139]:
In Blaga v Romania (Application no. 54443/10, 1 July 2014), the Court stated as follows, at [70]:
By way of conclusion it is submitted that there is a further positive obligation on the State to give due consideration to allegations raised within the abduction context. In Karrer , the Court found a breach of Article 8 on the basis that 'the analysis conducted by the domestic authorities in order to determine the child's best interests was not sufficiently thorough' [48]. Further, the court found that the left-behind parent had been unable properly to respond to contested allegations. At [50] and [53] respectively, the Court stated:
All this leads Ms Fottrell and Mr Wilson to conclude thus:
Whilst it is undoubtedly correct that both F and A's Article 8 rights are engaged here and that procedural fairness is an indivisible facet of these rights, it is equally important to recognise that the duty of confidence to the claimant, in common law, also falls within the embrace of Article 8 (See Campbell v MNG Ltd [2004] UKHL 22 ; [2004] 2AC 457 ). More widely, this reasonable expectation of privacy is intrinsic to the operation both of the asylum system generally and the proper discharge by the UK of its obligations under the Refugee Convention, QD and ECHR. Mr Norton and Mr Payne address this necessary analysis of the competing rights and interests in play in these terms:
Whilst I accept and endorse much of this, I am not prepared to agree with the submission that 'only where an exceptional case is established by an applicant, will disclosure be necessary'. It may be that the balancing of the competing rights may lead to disclosure in only a very limited number of cases but effectively to create a presumption that disclosure should be 'exceptional' is corrosive of the integrity of the balancing exercise itself.
It also requires to be stated that the SSHD will frequently be better placed than the Court to conduct the balancing exercise when identifying whether or to what extent disclosure should take place.
In the course of the contemplated hearing F will be in a position, via his counsel, to advance any allegations that he wishes to make in relation to M's representations to the SSHD. I will, in due course, deliver a judgment, which will be released to the SSHD. At this point, of course, I have no idea, having not yet heard the evidence, what my findings might be. Hypothetically, were I to be satisfied that misrepresentations had been made, to the extent that they cast doubt on the legitimacy of the grant of asylum, the Secretary of State would be bound both by the Immigration Rules and by Public Law principles to have regard to them.
Finally, it is submitted on A's behalf and supported by M's team that the ambit of the forthcoming hearing ought, in the light of the available evidence, particularly relating to A's own forcefully expressed wishes and feelings and the extensive time that he has already spent in the UK, to be confined to the issue of contact rather than summary return. Ms Fottrell has neither conceded this point nor actively resisted it. I am bound to say that I consider that contact is the realistic issue in this case and ought properly to be identified as such. However, this important question will still involve consideration of whether false representations have been made to the SSHD in respect of both asylum claims and I do not propose to circumscribe F's case in any way that might inhibit the argument on this point.