Written by Mahfuz Ahmed

A recent case (R v G 2022) involving an Italian family which saw the father make an application under the Convention on the Civil Aspects of International Child Abduction 1980 for the return of his child has highlighted the complexity around the relationship between family law and asylum law.

 

The respondent mother, who had moved to the UK with her child unbeknownst to the father, had her application for a further stay of a return order refused by the The Family Division in light of judicial review proceedings relating to her immigration.

 

But before we continue any further, a bit of context to the case. The respondent mother, the father and the child are all Italian nationals. The parents had been in a relationship for a number of years but did not marry. The respondent and her child came to the UK in 2021 following a separation from the child’s father in August 2021 in which they remained living together.

 

The father did not know the whereabouts of the mother and child until he received a text from the mother stating that she was in England and would return on 7th September 2021, however they did not.

 

Mother made an asylum claim in the UK

 

The father then made an application pursuant to the Convention on the Civil Aspects of International Child Abduction 1980 (the 1980 Hague Convention) for the return of the child.  In February 2022, the Court made a return order, requiring the child be returned to Italy by 13th February 2022.

 

Prior to this order being made, the mother made an asylum claim in the UK, which was deemed inadmissible under para 326E of the Immigration Rules. These rules states that EU asylum applications will be declared inadmissible unless there are exceptional circumstances which require the application to be admitted for full consideration. There is no right of appeal.

 

The mother made an application for judicial review in relation to her immigration decision. Thereafter, she applied to the Family Division for a stay (postponement) of her return order until her judicial review application had been determined.

 

The judgement of the Court

 

R v G [2022] EWHC 655 (Fam)

 

The Court considered the mother’s (respondent) application and refused her application. They held:

 

(i)  there was no right of appeal against the decision by the Secretary of State for the Home Department that the asylum claim was ‘inadmissible’;

 

(ii)  as a consequence, there was no ‘in country’ appeal in accordance with the Nationality, Immigration and Asylum Act 2002 and therefore, the protection afforded for such a situation by section 78 of the Nationality, Immigration and Asylum Act 2002 did not apply; and

 

(iii)  it rejected the mother’s submission that it should treat her application for judicial review as having the same effect as an ‘in country’ appeal on the basis that it was the only route by which the admissibility decision could be challenged.

 

Court orders child to be returned to Italy

 

The Court held that there was no breach in the principles set out in the recent case G v G [2021] 4 All ER 113 that prevented the return order from being implemented. The Court subsequently ordered that the child be returned to Italy by 23rd March 2022. This would give the opportunity for the mother to consider if she would return to Italy with the child, and if she didn’t then the child would be returned to Italy in the care of the father.

 

Our comments:

 

This judgement makes it clear that a person is afforded protection in an in-country right of appeal under the Nationality, Immigration and Asylum Act 2002. A judicial review application does not have the same effect and does not afford the same protection.

 

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