When an asylum seeker flees their home country then the Refugee Convention 1951 demands they are not refouled to that country to risk persecution. But when a child is abducted across international borders, the Hague Convention 1980 requires that the child is immediately returned to their habitual residence. What happens when that child, or the abducting parent, is also an asylum seeker? In the recent case of G v G [2021] UKSC 9, the Supreme Court considered the approach when these two Conventions collide.

Two Conventions
The Refugee Convention 1951, formed after WWII, is the basis of UK asylum law. The key protection enshrined in the Refugee Convention is that refugees should not be refouled to their home country. UK and EU law extends that protection to asylum seekers, until their claim is determined. The Hague Convention 1980 is aimed at a wholly different situation in which an abducting parent removes a child from the jurisdiction without the consent of the left-behind parent. The protection afforded in that Convention is that the child will be immediately returned unless an exception applies.

The problem
On its face, the two Conventions can march hand in hand: if a child is a refugee then it would amount to an exception to implementing a return order under the Hague Convention. However, the problem lies in the practicalities. Return orders should be made as soon as possible so the child arrangements can be determined in their home jurisdiction, but asylum claims usually take years to determine. So how to ensure refugees are not refouled without opening the door for spurious asylum claims by abducting parents, designed to delay and ultimately thwart a return order?

Four scenarios
The Court of Appeal identified four scenarios: (i) where a child is granted asylum, (ii) where a child’s asylum application is pending, (iii) where a child’s asylum appeal is pending, and (iv) where the child is a dependant on the parent’s asylum application. The Court of Appeal concluded that there was a bar to implanting a return order in Hague proceedings in scenarios (i) and (ii), there was no bar in scenario (iv), and was not required to decide in scenario (iii). The Supreme Court took a different view.

The decision
The Supreme Court ruled that there is a bar to implementing a return order in all four scenarios. The main reason for the change of position in respect of pending appeals is that there is an obligation under (retained) EU law that there should be an effective in-country remedy (para. 152). The Court accepted this is likely to have a “devastating impact” on Hague proceedings and urged a legislative solution (but gave no indication of what such a solution might involve). The Supreme Court also decided that there was a bar in scenario (iv), having concluded the protection against refoulement extends to dependent children (para. 121).

Procedural steps
Many family practitioners may be aghast at the potential issues G v G may cause in child abduction cases, especially in a judgment written by Lord Stephens, a child abduction specialist. The Court listed various steps to smooth the procedural process where there are parallel proceedings, including:

• The SSHD to intervene in Hague proceedings.
• The child to be joined as a party to the Hague proceedings.
• Disclosure of asylum papers to the child’s representative in Hague proceedings.
• There should usually be disclosure of Hague papers to the SSHD.
• Consideration of disclosing asylum papers in the Hague proceedings.

Marching hand in hand?
The Home Office has also set up a “specialist asylum team” to deal with such cross-over cases. In addition, the Court recommended that asylum appeals should be heard by a Family Division High Court judge and annexed draft standard directions to its judgment. It remains to be seen whether these steps will effectively deal with the key issue of delay that drives a wedge between these two Conventions, and instead allow them to march hand in hand.

Mark Smith specialises in international family law, extradition and immigration. Mark Smith was part of the team acting on behalf of reunite ICAC in G v G. Reunite ICAC intervened in the appeal, alongside Richard Harrison QC and Jennifer Perrins of 1 King's Bench Walk Chambers and Kim Lehal at Brethertons LLP.

Introduction
Whilst there has been reasonable transparency concerning the impact of the UK’s departure from the EU where resident European nationals are concerned, there was altogether less clarity regarding international cooperation in criminal justice matters.

Extradition falls in the overlap between the two areas; typically concerning European nationals who are habitually resident in the UK but whose return to another jurisdiction is sought. This article attempts to examine how the extradition courts have dealt with the lack of EUSS clarity.

EU Settlement Scheme
The provisions of the EU Settlement Scheme (EUSS) as governed by Appendix EU of the Immigration Rules will be well known to immigration practitioners. Appendix EU was brought into force by the Statement of Changes of 20 July 2018 (ie command paper CM 9675). Initially taking effect from 28 August 2018 on a limited basis, but fully taking effect on the 30 March 2019. Rules EU15, 16 and 17 set out when the basis on which an application under Appendix EU may be refused on suitability grounds.

Guidance as to whether an applicant meets the EUSS suitability requirements was published in April 2021, and must be used when considering whether the suitability requirements in Appendix EU are met. Within the guidance it states that an application may be transferred from UK Visas and Immigration, to Immigration Enforcement (IE) and states (emphasis added):

Referral to Immigration Enforcement
This section tells you when an application under the EU Settlement Scheme is to be referred from UK Visas and Immigration (UKVI) to Immigration Enforcement (IE).

Where the result of the check of the Police National Computer (PNC), Warnings Index (WI) or immigration records indicates that:

• the applicant has, in the last 5 years, received a conviction which resulted in their imprisonment

• the applicant has, at any time, received a conviction which resulted in their imprisonment for 12 months or more as a result of a single offence (it must not be an aggregate sentence or consecutive sentences)
…

UKVI must refer the case to IE for a case by case consideration as to whether or not the individual in question ought to be deported or excluded.

Overseas Criminality
Where an applicant has declared previous overseas criminality, or a check of the PNC or WI indicates that an applicant either:

• was previously extradited from the UK
• is subject to an outstanding arrest warrant issued by a member state of the EU or Interpol alert
• has an overseas conviction
You must make further enquiries to establish if there is police interest (where there is an outstanding arrest warrant) or to establish further information about an overseas conviction.

Once the details of an overseas conviction or an outstanding arrest warrant case are known, consideration must be given to whether any previous convictions require referral to IE for deportation consideration.

These provisions reveal that for EU nationals with overseas convictions, applications for settled status come with barriers and uncertainty, even where offending is historic. At present there is no significant case law on the interpretation of the guidance, and given the typically slow pace of Home Office decision making it is likely that we will be waiting some time for any such jurisprudence to develop.

EU Settlement Scheme and Extradition
The impact of this uncertainty in the EU Settlement Scheme on individuals’ Article 8 rights, when resisting extradition, was considered for the first time in any substantial way in Antochi v Germany [2020] EWHC 3092 (Admin).

In this case Fordham J accepted that a lack of clarity concerning a Requested Person’s ability to return and re-establish themselves in the UK through the settled status scheme was relevant to the Article 8 assessment of proportionality both in terms of the subjective anxiety it will cause to any family unit and as an objective factor establishing substantial risk that the subject individual may be unable to return to their life here. [Paras 50 – 52]

The reasoning in Antochi was followed by Cranston J in Rybac v District Court of Lublin, Poland [2021] EWHC 712 (Admin). At paragraph 36 he stated:

‘In my view, the District Judge ought to have taken into account the potential difficulties in the appellant returning to the UK as an express factor in the Celinski balancing exercise. His decision was handed down on 21 January 2020, two days before the European Union (Withdrawal Agreement) Act 2020 became law. It was clear that free movement between the UK and the European Union would come to an end at some point.’

The consequence of the above line of authority is that the uncertainty concerning return to the UK for European nationals subject to extradition proceedings is to be considered as a factor which will weigh against their removal.

Therefore, Brexit, whilst making the detection of European criminals in the UK harder through the loss of the Schengen Information System, appears to have also added an extra layer of difficulty in seeking their removal even when apprehended. The uncertain application of the EUSS to European criminals brought before the extradition courts will provide an additional avenue of challenge unless and until there is precedent addressing the application of the suitability requirements to those individuals.

Court of Appeal criticises the Immigration Rules and says Masum Ahmed decision is wrong

The Court of Appeal handed down its long awaited decision in Hoque & Ors v SSHD [2020] EWCA Civ 1357 on the 23 October 2020, here they address the issue of gaps in lawful residence in 10 Years Long residence applications. Specifically, it was the operation of 276B(v) with 39E, which had provided an exception for overstayers, where periods of overstaying could fall to be disregarded under 276B(v), that was the subject of much scrutiny by the Court.

It is rare that a 10 years long residence application is straightforward. Many clients will have what at first appearance appears to be a break in a period of lawful residence. This could be because they had not applied in time to renew their Leave To Remain (“LTR”) or where they were initially refused and there were administrative delays, leaving some short but conspicuous gaps in periods of lawful residence. Lawyers in these circumstances assiduously check periods of section 3C leave under the Immigration Act 1971 and/or whether the gaps in their immigration history may attract the operation of paragraph 39E and 276B(V) of the Immigration Rules and thus be disregarded.

10 Years Long Residence
The Immigration Rules (“the Rules”) allow people to apply to remain in the UK on the basis of long residence. Under paragraph 276B of the Rules, people who have 10 years of continuous lawful residence are able to apply for indefinite leave to remain (“ILR”). Paragraph 276A of the Rules sets out the key definitions. Where a person overstays this is deemed unlawful residence and could potentially break a period of continuous lawful residence. However, Paragraph 39E of the rules provides exceptions to overstaying and when read with 276B(v) had often been relied on by Immigration practitioners to “cure” any periods of overstaying.

Watch our INTERPOL & Extradition Act 2003 Webinar which took place on Tuesday 9 March 2021 at 17:30 (GMT) via Zoom.

Presented by our team of expert barristers who specialise in Immigration, Extradition and INTERPOL:

• Ben Keith
• Louisa Collins
• Amy Woolfson

Topics covered:
Post-Brexit, INTERPOL has an increased significance in extradition proceedings. The seminar examines how INTERPOL Red Notices and diffusions can be challenged and provides an overview of the new power of arrest contained in the Extradition (Provisional Arrest) Act 2020.

The seminar also covers practical considerations for those advising clients who are subject to a Red Notice or diffusion.