UK Supreme Court holds abducted child in asylum process protected by principle of non-refoulment

In this case, the UK Supreme Court considered the relationship between the 1980 Hague Convention and principle of non-refoulment. The Convention is an international agreement which allows for the return of a child that was abducted from his/her country by a parent, while the principle of non-refoulment in asylum law protects refugees from being returned to their home country if they have a well-founded fear of persecution.

The applicant and respondent in the case were the parents of an eight year old girl, who was born in South Africa and had been resident in the country. The applicant separated from the respondent and identifies as lesbian. She claims after coming out she received death threats from her family and was subjected to violence. In March 2020 the applicant removed the child from South Africa and travelled to England where she applied for asylum. The child was listed as a dependent on her mother’s asylum application.

The respondent made an application for the child’s return under the Hague Convention. The applicant opposed the application alleging that the child would also be subjected to harm if returned to South Africa. The child did not make her own application for asylum.

The Supreme Court considered whether the child, being listed as a dependent on the applicant’s asylum claim, is also protected by the principle of non-refoulment, and therefore cannot be returned to South Africa until the final determination of the asylum application. The Court noted that an asylum application can take several months, or longer, to be decided, while the Hague Convention requires a quick determination. The month’s long or yearlong process for an asylum determination could affect the relationship between the child and the parent.

The Supreme Court held that ‘an individual who can be understood to be seeking refugee status’ can avail of the principle of non-refoulment. A child listed as a dependent on their parent’s asylum application can be understood to be seeking refugee status. The Court held that the child is protected by non-refoulment and while the High Court can make an order for the return of the child, it cannot do so until the Home Secretary’s decision on the asylum application.

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