About this case:

• Citation:
  [2023] NICA 37
• Judgment:
  External link
• Court:
  NI Court of Appeal
• Judge:
  Mrs Justice Keegan

The court highlighted that the return order was directed towards Switzerland, the child’s habitual place of residence, and not Eritrea, which was the state of persecution under which the asylum application was based.

Background

This was an appeal against the February 2023 judgment of Mr Justice Kinney, who refused to implement a child return order under article 12 of the Hague Convention, as enacted by the Child Abduction and Custody Act 1985, until the mother’s asylum application had been determined. The appellant father sought the removal of the stay imposed and for the child to be returned without further delay to Switzerland.

The asylum process at this point was complete and uncontentious.

The appellant and respondent were the father and mother of AB. Both came originally from Eritrea, but moved to Switzerland, where AB was born. The couple divorced in 2019. The mother obtained custody of AB and the father gained visitation rights. The father also had a requirement to pay maintenance each month.

The mother left Switzerland in December 2021. She claimed that there was domestic violence in the relationship and other abusive behaviour which she has described during these proceedings. The father denied the mother’s allegations in their entirety.

The father confirmed that he bought flight tickets for her and AB to Amsterdam along with a new phone. She did not return as planned. Eventually, contact was made through the Eritrean community to advise him that the mother and AB had been seen at a church in Northern Ireland. The father then initiated proceedings under the Hague Convention.

It was agreed by the parties that the removal of the child was wrongful in accordance with articles 3 and 12 of the Hague Convention.

The asylum application

An asylum claim was made by the mother on her arrival in Northern Ireland. In her asylum registration questionnaire the mother provided a false account of her background and travel to the UK. That history included claims of being raped and attacked in Libya.

In February 2023, the mother claimed the father was regularly physically abusive towards her, and this occurred on an almost daily basis, an account significantly at odds with an earlier affidavit. She asserted that she left Switzerland due to the ongoing domestic violence and due to a specific threat made by the father to her and to AB.

At first instance, and at the hearing of the appeal, this asylum claim was outstanding. However, after the substantive hearing of the appeal, in May 2023, the Home Office granted asylum to the mother, with five years’ permission to say in the UK.

The Home Office accepted that she had a “well-founded fear of persecution and therefore cannot return to your country Eritrea”.

The court noted that despite the “rather far-fetched suggestions” the asylum here was granted from persecution in Eritrea, not relating to residence in Switzerland. They both also remained eligible to enter Switzerland.

Consideration

The court noted that the purpose of the Convention is to protect children “from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the state of their habitual residence as well as to secure protection for rights of access”.

When asylum issues arise in Hague Convention proceedings, there is a need to not prejudice an asylum claim or cause refoulement to a state of persecution.

Here, the court was concerned with two questions: namely, whether the judge in this case was correct to grant a stay, and whether the grant of asylum in the UK effectively trumped a return under the Hague Convention to Switzerland.

Considering this, the court highlighted “the simple point to make in this case is that a return of the child is sought to Switzerland not Eritrea”. Therefore, it could not realistically be argued that a return breached the principle of non-refoulement. Swiss documentation assured that the mother and child would not face refoulement and would be afforded sufficient protections and support in Switzerland.

As such, any argument against return in these circumstances:

The court noted that a person granted asylum may travel outside of the UK but should not travel to the country from which protection was sought, here being Eritrea, as that may result in the withdrawal of refugee status.

The grant of asylum would not be compromised in any way by travel to Switzerland in compliance with a return order under the Hague Convention, and would allow the state of habitual residence to determine welfare arrangements.

While the question of the stay became academic, because the asylum application was granted, the court was of the view that the stay should not have been granted pending the determination of the asylum claim.

Refoulement to Eritrea was not presented as a risk at any stage in the proceedings, given the assurances from the Swiss authorities. In addition, the court did not think that the immigration rules precluded a return under the Hague Convention.

In fact, a return of a child to their state of habitual residence, which is not the state of persecution, could not offend current immigration rules, and accords with the Hague Convention.

The court distinguished this from the similar case of G v G [2021] UKSC 9, given that a third country, Switzerland, was involved, which afforded safety from persecution upon which the claim for asylum was based. Switzerland was also the state of habitual residence of the child.

Conclusion

As such, the appeal was allowed, and the return order was confirmed. The court set this as two weeks from the date of the judgment, to allow for all travel arrangements to be made.

The court also included ‘good practice guidance’, which noted that for such applications, practitioners need to be specialists in this area and observe good practice.

The court reminded counsel of the need to address asylum issues swiftly and seek relevant information from the Home Office. The court also outlined a draft return order.