[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | ||
England and Wales Court of Appeal (Civil Division) Decisions |
||
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> S (Children), Re [2002] EWCA Civ 843 (28 May 2002) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/843.html Cite as: [2003] Imm AR 52, [2002] 2 FCR 642, [2002] EWCA Civ 843, [2002] 1 WLR 2548, [2002] WLR 2548 |
[New search] [Context] [View without highlighting] [Printable RTF version] [Buy ICLR report: [2002] 1 WLR 2548] [Help]
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
(Mr Justice Bennett)
Strand London WC2 Tuesday 28th May, 2002 |
||
B e f o r e :
LORD JUSTICE LAWS
LORD JUSTICE RIX
____________________
S (CHILDREN) |
____________________
Smith Bernal Reporting Limited, 190 Fleet Street,
London EC4A 2AG
Tel: 020 7421 4040
Official Shorthand Writers to the Court)
appeared on behalf of the Appellant Mother
MR H SETRIGHT QC and MR I LEWIS (Instructed by Messrs Dawson Cornwell, London)
appeared on behalf of the Respondent Father
MR K QURESHI (Instructed by Treasury Solicitor, London SW1H 9JS) appeared as the Advocate to the Court
____________________
Crown Copyright ©
"I am a victim of domestic abuse and marital rape in India. I also suffered abuse from my in-laws while visiting them in the UK. I know that I cannot obtain protection from my family or the Indian state."
"The defendant submits that the court cannot exercise its wardship jurisdiction to order a return of the children in this case pending the outcome of the defendant's and the children's asylum claim."
"In my judgment, the balance clearly comes down in favour of the children being returned to India. I find that it is in their best interests that they should be returned to India. These are Indian children who have lived all their lives in India until June 2001. I do not accept the mother's case that there is a grave risk that the children's welfare will be put at risk by her situation. Her evidence is open to serious question, as I have set out. This, in my judgment, inevitably undermines her evidence that she would be emotionally upset to return to India and/or that she would be ostracised in Indian society. It is astonishing, in my view, that she should have contemplated returning to India at all in July 2001 in the light of the picture she has painted of a turbulent marriage and of the father's treatment of the children. Further, the father has agreed to give certain undertakings. They are comprehensive and detailed. They provide, in my judgment, if adhered to, proper and adequate protection and support, including financial support for the mother and the children. I have to bear in mind that these undertakings are not enforceable in India unless the Indian court is able to, and does, make orders in similar terms or extract similar undertakings from the father. But I am confident that the appropriate Indian court will understand that one of the reasons that the children are being returned to India is the comprehensive nature of the undertakings that the father has given. I am confident that the Indian court will recognise that these undertakings have been given for the purposes of helping to secure the children's welfare. I have the fullest confidence that the Indian court, within the laws and the customs that it is called upon to administer, will endeavour at all times to promote the children's best interests. Accordingly, it will be seen that, absent the question of section 15 of the 1999 Act, it is my decision that they should be returned to India as quickly as possible."
"(1) During the period beginning when a person makes a claim for asylum and ending when the Secretary of State gives him notice of the decision on the claim, he may not be removed from, or required to leave, the United Kingdom.
(2) Subsection (1) does not prevent-
(a) directions for his removal being given during that period;(b) a deportation order being made against him during that period."
"Until an asylum application has been determined by the Secretary of State or the Secretary of State has issued a certificate under section 11 or section 12 of the Immigration and Asylum Act 1999, no action will be taken to require the departure of the asylum applicant or his dependants from the United Kingdom."
"A husband or wife or minor children accompanying a principal applicant may be included in an application for asylum. If the principal applicant is granted asylum any such dependants will be granted leave to enter or remain for the same duration. The case of any dependant who claims asylum in his own right and who would otherwise be refused leave to enter or remain will be considered individually in accordance with paragraph 334 above. If the dependant has a claim in his own right, it should be made at the earliest opportunity. Any failure to do so will be taken into account and may damage credibility if no reasonable explanation for it is given. Where the principal applicant is refused asylum and the dependant has previously been refused asylum in his own right, the dependant may be removed forthwith, notwithstanding any outstanding right of appeal that may be available to the principal applicant. At the same time that asylum is refused the applicant may be notified of removal directions or served with a notice of the Secretary of State's intention to deport him, as appropriate. In this paragraph ... a child means a person who is under 18 years of age or who, in the absence of documentary evidence, appears to be under that age."
"... the Secretary of State may make a deportation order against him, that is to say an order requiring him to leave and prohibiting him from entering the United Kingdom; ..."
"Where a person arriving in the United Kingdom is refused leave to enter, an immigration officer may, subject to sub-paragraph (2) below:
(a) give the captain of the ship or aircraft in which he arrives directions requiring the captain to remove him from the United Kingdom in that ship or aircraft; ..."
"`claim for asylum' means a claim made by a person (whether before or after the coming into force of this section) that it would be contrary to the United Kingdom's obligations under the Convention for him to be removed from, or required to leave, the United Kingdom."
"During the period beginning when a person makes a claim for asylum and ending when the Secretary of State gives him notice of the decision on the claim, he may not be removed from, or required to leave, the United Kingdom."
"A person who is not a British citizen may be removed from the United Kingdom, in accordance with directions given by an immigration officer, if-
(a) having only a limited leave to enter or remain, he does not observe a condition attached to the leave or remains beyond the time limited by the leave;(b) he has obtained leave to remain by deception; or(c) directions (`the first directions') have been given for the removal, under this section, of a person (`the other person') to whose family he belongs."
"(1) In determining whether a person in relation to whom a certificate has been issued under subsection (2) may be removed from the United Kingdom, a member State is to be regarded as-
(a) a place where a person's life and liberty is not threatened by reason of his race, religion, nationality, membership of a particular social group, or political opinion; and(b) a place from which a person will not be sent to another country otherwise than in accordance with the Refugee Convention.
(2) Nothing in section 15 prevents a person who has made a claim for asylum (`the claimant') from being removed from the United Kingdom to a member State if-
(a) the Secretary of State has certified that-(i) the member State has accepted that, under standing arrangements, it is the responsible State in relation to the claimant's claim for asylum; and(ii) in his opinion, the claimant is not a national or citizen of the member State to which he is to be sent;(b) the certificate has not been set aside on an appeal under section 65."
"`Removed' means removed as a result of directions given under section 10 or under Schedule 2 or 3 to the 1971 Act."
"Directions for, or requiring arrangements to be made for, the removal of a person from the United Kingdom may include or be amended to include provision for the person who is to be removed to be accompanied by an escort consisting of one or more persons specified in the directions."
"There is in my judgment, no ambiguity at all in the words `required to leave' in the context of modern immigration legislation. The 1971 Act and the 1993 Act are so closely linked that it would not be proper to construe them in such a way that the same words bear one meaning in one Act and another meaning in the other. By section 5(1) of the 1971 Act a deportation order is quite unambiguously expressed to be an order requiring a person liable to deportation to leave the United Kingdom, and as soon as it is in force it invalidates any prior grant of leave."
"No contracting state shall expel or return (`refouler') a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion."
"The final hearing of the Plaintiff's originating summons for summary return of the minors to India be set down to be heard by a High Court Judge of the Family Division (BEING A FINAL HEARING NON CONVENTION ABDUCTION CASE) at the Royal Courts of Justice ... on Thursday 31st January 2002 and Friday 1st February 2002 ..."
"It has been decided, however, that it would be right, because of the particular circumstances of your case, to grant you exceptional leave to remain in the United Kingdom until 10/01/06."