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England and Wales High Court (Family Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> F v M & Anor [2017] EWHC 949 (Fam) (26 April 2017) URL: http://www.bailii.org/ew/cases/EWHC/Fam/2017/949.html Cite as: [2017] 3 FCR 467, [2018] 2 WLR 178, [2017] EWHC 949 (Fam), [2018] Fam 1, [2018] 1 FLR 1217, [2017] WLR(D) 594 |
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FAMILY DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
F |
Applicant |
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- and - |
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M - and - A |
1st Respondent 2nd Respondent |
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- and - |
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SECRETARY OF STATE FOR THE HOME DEPARTMENT JOINT COUNSEL FOR THE WELFARE OF IMMIGRANTS |
Interested Party |
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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
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Crown Copyright ©
Mr Justice Hayden :
Background
Application for Asylum
The Appeal
The Re-hearing
"39. The starting point for a consideration of the implications of A's refugee status will have to be, in my view, that at the very least it is unlikely to be appropriate for the family court to order A's return to Pakistan without first concluding that his situation did not, in fact, justify the protection afforded by the Secretary of State. It needs to be recognised that the position may go further in that, if some of the submissions made to us are correct, it might not even be permissible for the family court to order A's return unless and until his refugee status is revoked. The questions that will need to be addressed include at least the following:
i) Is A's refugee status an absolute bar to the family court ordering his return to Pakistan?
ii) If so, by what process can the father challenge the refugee status, given that he denies the allegations of violence by the mother and A upon which their asylum claims were based? By virtue of paragraphs 338A and 339AB of the Immigration Rules, a grant of refugee status shall be revoked where the Secretary of State is satisfied that the person's misrepresentation was decisive for the grant. The question arises as to how the determination is made that there has been a misrepresentation. Normally this would be a matter for the Secretary of State alone, but where the family court needs the issue resolved in order to decide what is in a child's best interests, can the family court determine it itself? Is it necessary for the Secretary of State to be joined in the proceedings, in those circumstances, not least with the intent that the family court's determination should be binding upon her too? Is it necessary for the grant of refugee status to be formally revoked by the Secretary of State prior to a return order being made or is some lesser process sufficient?
iii) If the family court determines whether there has been a misrepresentation, on what basis does it do so? Is the usual process of making findings of fact on the balance of probabilities appropriate or is it necessary to take the sort of approach taken by the Secretary of State to the determination of asylum claims?
iv) If A's asylum status is not an absolute bar, how should it be taken into consideration in the family proceedings? Once again, the question arises as to how the court should resolve the factual debate between the parties.
v) Does it make any difference that, strictly speaking, A probably has humanitarian protection rather than protection as a refugee?"
"I recognise that it may be thought unhelpful to return the case to a Family Division judge without providing comprehensive guidance as to how the question of A's refugee status should be approached. However, I think it would be wrong to offer any definitive views about this at this stage. It is a very difficult question and the court will require as much help as it can possibly get, not only from the family law angle but also in relation to immigration and asylum law and practice."
1. Applicants shall be allowed to remain in the Member State, for the sole purpose of the procedure, until the determining authority has made a decision in accordance with the procedures at first instance set out in Chapter III. This right to remain shall not constitute an entitlement to a residence permit.
2. Member States shall ensure that decisions by the determining authority on applications for asylum are taken after an appropriate examination. To that end, Member States shall ensure that:
(a) applications are examined and decisions are taken individually, objectively and impartially;
(b) precise and up-to-date information is obtained from various sources, such as the
United Nations High Commissioner for Refugees (UNHCR), as to the general situation prevailing in the countries of origin of applicants for asylum and, where necessary, in countries through which they have transited, and that such information is made available to the personnel responsible for examining applications and taking decisions;
(c) the personnel examining applications and taking decisions have the knowledge with respect to relevant standards applicable in the field of asylum and refugee law.
3. The authorities referred to in Chapter V shall, through the determining authority or the applicant or otherwise, have access to the general information referred to in paragraph 2(b), necessary for the fulfilment of their task. [Article 8] For the purposes of examining individual cases, Member States shall not:
(a) directly disclose information regarding individual applications for asylum, or the fact that an application has been made, to the alleged actor(s) of persecution of the applicant for asylum;
(b) obtain any information from the alleged actor(s) of persecution in a manner that would result in such actor(s) being directly informed of the fact that an application has been made by the applicant in question, and would jeopardise the physical integrity of the applicant and his/her dependants, or the liberty and security of his/her family members still living in the country of origin. [Article 22]
62. In terms of withdrawing or revoking refugee status the PD provides: -
Member States shall ensure that an examination to withdraw the refugee status of a particular person may commence when new elements or findings arise indicating that there are reasons to reconsider the validity of his/her refugee status. [Article 37]
1. Member States shall ensure that, where the competent authority is considering withdrawing the refugee status of a third country national or stateless person in accordance with Article 14 of Directive 2004/83/EC, the person concerned shall enjoy the following guarantees:
(a) to be informed in writing that the competent authority is reconsidering his or her qualification for refugee status and the reasons for such a reconsideration; and
(b) to be given the opportunity to submit, in a personal interview in accordance with Article 10(1)(b) and Articles 12, 13 and 14 or in a written statement, reasons as to why his/her refugee status should not be withdrawn. [Article 38]
In addition, Member States shall ensure that within the framework of such a procedure:
(c) the competent authority is able to obtain precise and up-to-date information from various sources, such as, where appropriate, from the UNHCR, as to the general situation prevailing in the countries of origin of the persons concerned; and
(d) where information on an individual case is collected for the purposes of reconsidering the refugee status, it is not obtained from the actor(s) of persecution in a manner that would result in such actor(s) being directly informed of the fact that the person concerned is a refugee whose status is under reconsideration, nor jeopardise the physical integrity of the person and his/her dependants, or the liberty and security of his/her family members still living in the country of origin. [Article 38]
"ensure that authorities implementing this Directive are bound by the confidentiality principle as defined in national law, in relation to any information they obtain in the course of their work."
"26. In my view, the power to make immigration rules under the 1971 Act derives from the Act itself and is not an exercise of the prerogative. As its long title indicates, the purpose of the 1971 Act was to replace earlier laws with a single code of legislation on immigration control. Parliament was alive to the existence of the prerogative power in relation to enemy aliens and expressly preserved it by section 33(5). But prima facie, subject to the preservation of that power, the Act was intended to define the power to control immigration and say how it was to be exercised.
27. It is true that there is no provision in the 1971 Act which in terms confers on the Secretary of State the power or imposes on her the duty to make immigration rules. But for the reasons that follow, in my view it is implicit in the language of the Act that she is given such a power and made subject to such a duty under the statute." Per Lord Dyson (with whom Lord Hope, Lord Walker Clarke and Lord Wilson Agreed)"
The 1951 Geneva Convention relating to the status of refugees (the Refugee Convention) and the right not to be refouled.
46. Article 1 of the 1951 Convention Relating to the Status of Refugees, as amended by the 1967 Protocol ('the Convention') is entitled "Definition of the term 'Refugee'". Article 1A provides that the term 'refugee' shall apply to "any person who":
… owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.
…
47. This definition is provided "for the purposes of the present Convention" and provides the basis for any subsequent entitlement to the substantive rights provided by the Convention (set out in Articles 3 to 34). The Convention does not, however, provide for (or require Contracting States to provide for) any particular (immigration) status to be granted to those who fulfil the definition of "refugee" in Article 1A.
(1) Article 32:
1. The Contracting States shall not expel a refugee lawfully in their territory save on grounds of national security or public order.
2. The expulsion of such a refugee shall be only in pursuance of a decision reached in accordance with due process of law. Except where compelling reasons of national security otherwise require, the refugee shall be allowed to submit evidence to clear himself, and to appeal to and be represented for the purpose before competent authority or a person or persons specially designated by the competent authority.
3. The Contracting States shall allow such a refugee a reasonable period within which to seek legal admission into another country. The Contracting States reserve the right to apply during that period such internal measures as they may deem necessary.
(2) Article 33:
(1) 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.
(2) The benefit of the present provision may not, however, be claimed by a refugee
… who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.
"in good faith and in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose".
"It is necessarily implicit in section 2 that no administrative practice or procedure may be adopted which would be contrary to the Convention".
28…The appellant sought to address this disparity by submitting that the Convention had been incorporated into our domestic law. Reliance was placed on observations of Lord Keith of Kinkel in R v Secretary of State for the Home Department, Ex p Sivakumaran [1988] AC 958, 990g ; Lord Steyn in R (European Roma Rights Centre) v Immigration Officer at Prague Airport (United Nations High Comr for Refugees Intervening) [2005] 2 AC 1, paras 40-42; section 2 of the Asylum and Immigration Appeals Act 1993; and rule 328 of Statement of Changes in Immigration Rules (1994) (HC 395). It is plain from these authorities that the British regime for handling applications for asylum has been closely assimilated to the Convention model. But it is also plain (as I think) that the Convention as a whole has never been formally incorporated or given effect in domestic law. While, therefore, one would expect any government intending to legislate inconsistently with an obligation binding on the UK to make its intention very clear, there can on well known authority be no ground in domestic law for failing to give effect to anenactment in terms unambiguously inconsistent with such an obligation. [29]
"Nothing in the immigration rules (within the meaning of the 1971 Act) shall lay down any practice which would be contrary to the Convention."
"refugee"
"means a third country national who, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, political opinion or membership of a particular social group, is outside the country of nationality and is unable or, owing to such fear, is unwilling to avail himself or herself of the protection of that country, or a stateless person, who, being outside of the country of former habitual residence for the same reasons as mentioned above, is unable or, owing to such fear, unwilling to return to it, and to whom Article 12 does not apply; [Article 2(c)]"
1. Member States shall respect the principle of non-refoulement in accordance with their international obligations.
2. Where not prohibited by the international obligations mentioned in paragraph 1, Member States may refoule a refugee, whether formally recognised or not, when:
(a) there are reasonable grounds for considering him or her as a danger to the security of the Member State in which he or she is present; or
(b) he or she, having been convicted by a final judgement of a particularly serious crime, constitutes a danger to the community of that Member State.
3. Member States may revoke, end or refuse to renew or to grant the residence [Article 21]
(1) … the grant of "refugee status" to those recognised as refugees by a Member State:
"refugee status" means the recognition by a Member State of a third country national or a stateless person as a refugee; [Article 2(d)]
(3) Member States shall grant refugee status to a third country national or a stateless person, who qualifies as a refugee in accordance with Chapters II and III. [Article 13]
As soon as possible after their status has been granted, Member States shall issue to beneficiaries of refugee status a residence permit which must be valid for at least three years and renewable unless compelling reasons of national security or public order otherwise require, and without prejudice to Article 21(3). [Article 24(1)]
(2) Provides for subsidiary protection for those who are at risk of serious harm but do not qualify as a refugee:
(e) "person eligible for subsidiary protection" means a third country national or a stateless person who does not qualify as a refugee but in respect of whom substantial grounds have been shown for believing that the person concerned, if returned to his or her country of origin, or in the case of a stateless person, to his or her country of former habitual residence, would face a real risk of suffering serious harm as defined in Article 15, and to whom Article 17(1) and (2) do not apply, and is unable, or, owing to such risk, unwilling to avail himself or herself of the protection of that country Article 2];
(f) "subsidiary protection status" means the recognition by a Member State of a third country national or a stateless person as a person eligible for subsidiary protection; [Article 2].
Member States shall grant subsidiary protection status to a third country national or a stateless person eligible for subsidiary protection in accordance with Chapters II and V. [Article 18]
As soon as possible after the status has been granted, Member States shall issue to beneficiaries of subsidiary protection status a residence permit which must be valid for at least one year and renewable, unless compelling reasons of national security or public order otherwise require. [Article 24(2)]
(3) Requires Member States to revoke refugee and/or subsidiary protection status in certain circumstances in certain defined circumstances: -
[Refugee Status]
Member States shall revoke, end or refuse to renew the refugee status of a third country national or a stateless person, if, after he or she has been granted refugee status, it is established by the Member State concerned that:
(a) …
(b) his or her misrepresentation or omission of facts, including the use of false documents, were decisive for the granting of refugee status.[Article 4(3)]
[Subsidiary Protection Status]
3. Member States shall revoke, end or refuse to renew the subsidiary
protection status of a third country national or a stateless person, if:
(a) ..
(b) his or her misrepresentation or omission of facts, including the use of false documents, were decisive for the granting of subsidiary protection status.
4. Without prejudice to the duty of the third country national or stateless person in accordance with Article 4(1) to disclose all relevant facts and provide all relevant documentation at his/her disposal, the Member State, which has granted the subsidiary protection status, shall on an individual basis demonstrate that the person concerned has ceased to be or is not eligible for subsidiary protection in accordance with paragraphs 1, 2 and 3 of this Article. [Article 19]
(4) Sets the procedures governing any decision to revoke the grants of refugee
status
1. Member States shall ensure that, where the competent authority is considering withdrawing the refugee status of a third country national or stateless person in accordance with Article 14 of Directive 2004/83/EC, the person concerned shall enjoy the following guarantees:
a. To be informed in writing that the competent authority is reconsidering his or her qualification for refugee status and the reasons for such a reconsideration; and
b. To be given the opportunity to submit, in a personal interview in accordance with Article 10(1)(b) and Articles 12, 13 and 14 or in a written statement, reasons as to why his/her refugee status should not be withdrawn.
In addition, Member States shall ensure that within the framework of such a procedure:
c. the competent authority is able to obtain precise and up-to-date information from various sources, such as, where appropriate, from the UNHCR, as to the general situation prevailing in the countries of origin of the persons concerned; and
d. where information on an individual case is collected for the purposes of reconsidering the refugee status, it is not obtained from the actor(s) of persecution in a manner that would result in such actor(s) being directly informed of the fact that the person concerned is a refugee whose status is under reconsideration, nor jeopardise the physical integrity of the person and his/her dependants, or the liberty and security of his/her family members still living in the country of origin.
"The High Court cannot exercise its powers, however wide they may be, so as to intervene on the merits in an area of concern entrusted by Parliament to another public authority. It matters not that the chosen public authority is one which acts administratively whereas the court, if seized of the same matter, would act judicially. If Parliament in an area of concern defined by statute (the area in this case being the care of children in need or trouble) prefers power to be exercised administratively instead of judicially, so be it. The courts must be careful in that area to avoid assuming a supervisory role or reviewing power over the merits of decisions taken administratively by the selected public authority."
"it is simply outside the lawful exercise of any power of any judge in the Family Division to make an order directed to the Secretary of State requiring the release from administrative detention of the dependent of a failed asylum seeker, just as it would be wholly outside my powers were I to purport to make an order requiring a ward of court to be discharged from a young offender institution because I differed from the view that the magistrates who, upon conviction, had sent the child to such a place……Those are all matters within the exclusive statutory powers of the relevant officials".
"the person's misrepresentation or omission of facts, including the use of false documents, were decisive for the grant of refugee status" (paragraph 339AB of the Immigration Rules).
54. It is therefore accepted that SSHD has a public law obligation to consider material relevant to the discharge of her obligation to revoke the grant of asylum. This is reflected in the Asylum Policy Instruction "Revocation of refugee status" (the 'Revocation Guidance") which provides that "careful consideration must be given to revoking refuge status" where, amongst other matters, "evidence emerges that status was obtained by misrepresentation" (paragraph 1.2).
55. In the context of any such decision the SSHD: - (i) bears the burden of establishing that the requirements of paragraph 339AB are met, and (ii) is required under section of the Borders, Citizenship and Immigration Act 2009 to take into account as a primary consideration the best interests of the Child.
56. Accordingly, if evidence emerges during the course of these Family proceedings that is relevant to whether the grant of asylum to the Child should be revoked this material will be considered by the SSHD.
57. The SSHD accepts that it would in principle be open to the Father to judicially review a failure by the Secretary of State to revoke the grants of asylum on public law grounds.
"(1) The decision to consider material provided in the course of Family proceedings does not directly inform the actor of persecution of the fact the Child is a refugee nor that his refugee status is under consideration. Such an approach is not therefore inconsistent with either Article 38 of the PD or paragraph 339IA of the Immigration Rules [F72 and 73].
(2) Similarly, the provision of material by the Father does not result in his being "directly informed" that a consideration is being given to revoking the Child's refugee status [76].
(3) Further and in any event, these issues do not arise where the Father is aware of the grant of asylum.
(4) There is no circularity arising from the fact that the SSHD decides whether any evidence of misrepresentation justifies the revocation of asylum. In particular the SSHD is uniquely well placed to determine the impact any misrepresentation had on her decision making [74].
(5) The fact that they are no defined rules governing the provisions of information to the SSHD, whether a review should be instigated, and whether the Father should be informed that consideration is being given to revoking the Child's refugee status and the outcome of the review provides no basis for concluding that judicial review is not an effective remedy. In any event, the short answer is that since the SSHD's accepts that she is under a public law duty to consider material relevant to the question of revocation, it would be open to the Father in principle to challenge a failure to review such material on public law grounds.
(6) The Father participates in this process by way of the evidence that he has given in the Family proceedings and the findings made by the Family Court. In any event, the lack of participation does not render ineffective the judicial process - in particular since it would be open to the Court to hear evidence from the Father if this was considered to be relevant.
(7) The potential adverse impact of the Father not being able to travel to the UK is the same for both Family proceedings and judicial review proceedings."
"i) Practitioners acting for the parent in the family proceedings have an ongoing duty to remain au courant with what is going on elsewhere even if the other matter is being handled by other professionals.
ii) The parents, as part of their ongoing obligation to be frank and open with the court, are under a duty to instruct those advising them in any other relevant matter to keep their family solicitors informed of what is going on. And it is the duty of those advising them in the other matter, having received such authority, to keep the family solicitors informed accordingly.
iii) Practitioners involved in family proceedings have a duty to take adequate steps before each hearing to find out, from the solicitors or other professional advisers acting for their client in any other relevant matter, what has been going on, where the other matters have got to and, in cases where some formal decision is anticipated, when that decision is likely to be given.
iv) With a view to minimising the room for uncertainty or misunderstanding, it is preferable to obtain copies of the correspondence and other documents on the other solicitors' files rather than attempting to find out what is going on by means of questions and answers in correspondence which may, through lack of understanding, miss the point or be misunderstood.
v) If the practitioners acting for the parent in the family proceedings are finding it difficult to obtain the relevant information from the solicitors or other professional advisers acting for their client in the other matter, then prompt consideration needs to be given – and at the earliest possible stage – to approaching the court with a view to inviting the court either to make a peremptory order that the other advisers deliver a complete copy of their file to the solicitors acting in the family proceedings or to make an order pursuant to the Protocol. Such applications should not be left to the next directions or other hearing which has already been fixed if waiting until then may generate inappropriate delay.
i) Where the outcome in the family proceedings is dependent upon or likely to be affected by the decision of some third party, consideration should be given – at the earliest possible stage in the proceedings – as to whether and if so how that third party decision maker should be brought into some appropriate form of direct engagement with the family proceedings."
"'The legal basis for the need to protect information regarding a person's claim for asylum and any subsequent grant of refugee status (or refusal of the same), is that a duty of confidence arises at common law.'"
"ensure that authorities implementing this Directive are bound by the confidentiality principle as defined in national law, in relation to any information they obtain in the course of their work."
"Confidentiality is a vital element for the working of the asylum system and the proper discharge by the UK of its obligations under the Refugee Convention, QD and ECHR. The need for those seeking asylum to have confidence that the information they provide will not be made public means that there is a compelling public interest in ensuring that this confidentially is protected. This applies a fortiori to those granted refugee status (where the risk of harm has been established). For these reasons the SSHD considers that such disclosure should not take place absent exceptional circumstances and a Court order."
Procedural Obligations
"…the mutual enjoyment by parent and child of each other's company constitutes a fundamental element of family life and domestic measures hindering such enjoyment amount to an interference with the right protected by Article 8. "
"… while the essential object of Article 8 is to protect the individual against arbitrary interference by the public authorities, there may in addition be positive obligations inherent in effective 'respect' for family life. As to the State's obligation to take positive measures, Article 8 includes the right of a parent – in this case the father – to the taking of measures with a view to his or her being reunited with his or her child and an obligation on the national authorities to take such action…' "
"'To that end the Court must ascertain whether the domestic courts conducted an in-depth examination of the entire family situation and of a whole series of factors, in particular of a factual, emotional, psychological, material and medical nature, and made a balanced and reasonable assessment of the respective interests of each person, with a constant concern for determining what the best solution would be for the abducted child in the context of an application for his return to his country of origin.' "
"In consequence, the Court considers that Article 8 of the Convention imposes on the domestic authorities a particular procedural obligation in this respect: when assessing an application for a child's return, the courts must not only consider arguable objection to the child's return, but must also make a ruling giving specific reasons in the light of the circumstances of the case. Both a refusal to take account of objections to the return capable of falling within the scope of Articles 12, 13 and 20 of the Hague Convention and insufficient reasoning in the ruling dismissing or accepting such objections would be contrary to the requirements of Article 8 of the Convention and also to the aim and purpose of the Hague Convention. Due consideration of such allegations, demonstrated by reasoning of the domestic courts that is not automatic and stereotyped, but sufficiently detailed in the light of the exceptions set out in the Hague Convention, which must be interpreted strictly (see Maumousseau and Washington, cited above, § 73), is necessary. "
"In this respect, the Court reiterates that the Convention is designed to "guarantee not rights that are theoretical or illusory but rights that are practical and effective" (see, among other authorities, Airey v. Ireland, 9 October 1979, § 24, Series A no. 32). As regards litigation involving opposing private interests, equality of arms implies that each party must be afforded a reasonable opportunity to present his case – including his evidence – under conditions that do not place him at a substantial disadvantage vis-à-vis his opponent.
'When examining the overall decision-making process the Court cannot disregard the fact that the file before the domestic courts contained controversial pieces of evidence. The Court finds that giving the first applicant the opportunity to present his case either directly or through written submissions was of paramount importance for ensuring the fairness of the decision-making process."
"While the Supreme Court has determined that, in the context of Hague Convention proceedings, the Convention jurisprudence does not require an abandonment of the summary approach to determining applications in the abduction context (Re E (Children) (Abduction: Custody Appeal) [2012] 1 AC 144), it remains a fundamental principle of Convention jurisprudence that Article 8 imposes an obligation on the State to ensure that a 'left-behind' parent is able to participate effectively and present welfare arguments. "
"Accordingly, when considering whether to order disclosure the Court will need to consider whether disclosure would be compatible with the refugee's ECHR rights, and in particular their Article 3 and 8 rights. In addition, in considering proportionality under Article 8 the Court will need to attach particular weight to the wider powerful public interest in protecting the confidentiality of the asylum process. This is particularly so where the applicant for disclosure is the alleged persecutor. Against these considerations the Court will need to weigh, in the case of an application made by a family member, any adverse Article 6 and/or 8 impact of disclosure not being provided to the person making the application. The SSHD's position is that only where an exceptional case is established by an applicant will disclosure be necessary."