Alan Payne and Robert Cohen act for the Secretary of State for the Home Department in an important case on the interaction of asylum and family law.
The case arose from an application by a father in Israel. He alleged that his children had been abducted to the United Kingdom by his wife and initiated proceedings under the Hague Convention on Child Abduction. However, the children and the mother had sought asylum in the United Kingdom.
In the previous case of F v M  EWHC 949 (Fam), in which Alan Payne was also instructed on behalf of the Secretary of State, Hayden J had ruled that a decision to grant asylum precluded the High Court from using its inherent jurisdiction to order the return of a child who had sought asylum.
In this case the issue was how to reconcile the competing obligations to which the UK was subject: should a court order the summary return of children when such an order might breach the principle of non-refoulment (as enshrined in the Refugee Convention).
Mostyn J upheld the SSHD’s argument that “where a grant of asylum has been made by the Home Secretary it is impossible for the court later to order a return of the subject child under the 1980 Hague Convention”. He further held that “if an asylum claim has been refused but an appeal has been mounted, then it is possible, indeed desirable, for the court to hear the return application but to provide that no return order shall take effect until, at the earliest, 15 days after the promulgation of the decision by the tribunal”.
It follows that Mostyn J has confirmed that the Secretary of State has a particular and fundamental role in determining asylum applications that should not be overtaken by applications under the Hague Convention.
This is the first occasion on which a court in the UK has considered the interplay between the Hague Convention and the Refugee Convention. Mostyn J accepted the SSHD’s argument that decision in the courts of the USA and Canada were not applicable.