UK: Supreme Court reiterates that a refugee cannot be removed until claim is assessed

On 19 March 2021, the Supreme Court of the United Kingdom handed down its judgment in G v G [2021] UKSC 9. The case concerns G, an eight-year-old national of South Africa whose mother applied for international protection in the UK listing G as a dependent and whose father had brought international child abduction proceedings for under the Hague Convention the breach of his right to custody of his child.

In its analysis, the Supreme Court reiterated, inter alia, that under the 1951 Geneva Convention, the recognition of an of refugee status as a declaratory act. It emphasised that the obligation not to refoule an individual arises due to their circumstances meeting the definition of “refugee” rather than because of the recognition of a Contracting State that the definition is met. Despite this, the Court also highlighted that the Convention has not been incorporated into UK domestic law and instead, UK legislation has closely assimilated to the Convention.

The Court confirmed that an application for international protection made by a parent which includes a child should be considered as an application by the child “if objectively it can be understood as such”. It stated that it is inherently likely that any fear of persecution experienced by the parent will also apply to the child and that this understanding would protect the interests of the child. Secondly, the Court considered that the child applicant for international protection is protected from refoulement while the determination of an application for international protection is still pending and until such a determination is made, a return order under the 1980 Hague Convention cannot be implemented. Nevertheless, it further considered that, while a return is not enforceable, the proceedings under the Hague Convention should continue or at least not wait until the asylum claim has been determined.

Photo: Jeff Djevdet, February 2016, Flickr (CC)

This item was reproduced with the permission of ECRE from the ELENA Weekly Legal Update. The purpose of these updates is to inform asylum lawyers and legal organizations supporting asylum seekers and refugees of recent developments in the field of asylum law. Please note that the information provided is taken from publicly available information on the internet. Every reasonable effort is made to make the content accurate and up to date at the time each item is published but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by ECRE.