On 28 February 2025, Mr Justice Garrido ruled that children can be returned to another State before their asylum claims are determined, provided the principle of non-refoulement is upheld. The decision in Kent County Council v (1) Ek (2) Sk (3) Mik & (4) Mak (By Their Children’s Guardian) the Secretary of State for the Home Department, marks a departure from the precedent for children’s asylum claims in G v G [2021] UKSC 9, which previously prevented return orders from being enforced while a child’s asylum claim was pending.
Background of the case
Two children, aged six and nine, arrived in the UK unaccompanied after dangerously crossing from France. During the journey, they were separated from their parents.
Kent County Council placed them in foster care, while their parents, still in France, were refused entry clearance. The parents sought to challenge the refusals, and the children lodged asylum claims in the UK.
In the interim, Kent County Council initiated proceedings under the inherent jurisdiction of the High Court, seeking an order for the children to be returned to France where their parents resided. The Secretary of State supported this application. Both parties argued that the current legal framework permitted the return of the children before the final determination of their asylum claims, so long as the principle of non-refoulement was not breached. They contended that G v G was no longer applicable due to subsequent changes in legislation and immigration policy.
The parents, on the other hand, opposed the return order. They argued that G v G remained binding and that the court should not implement a return order until the children’s asylum claims had been finally determined, including any appeals.
The Court’s Reasoning
The court found that G v G was based on now-repealed EU law and outdated Immigration Rules. Under current UK law, return to a safe third country (such as France) can occur before an asylum decision, provided there is no risk of persecution or breach of non-refoulement.
Justice Garrido held that France was a safe third country and ordered the children’s return despite their pending claims.
Implications
This decision signals a shift in the UK’s approach to asylum claims by children. It confirms that pending claims no longer prevent enforcement of return orders, reducing protections previously in place. The decision highlights the importance for practitioners to assess the implications of these legal changes on safeguarding children’s rights and best interests.
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