A child, who had been born in Pakistan to Pakistani parents, visited the United Kingdom in August 2014 accompanied only by his mother. The mother and child remained in the UK despite the father’s protestations and he issued proceedings in the High Court for the child’s summary return. By the time of the hearing both mother and child had applied in the UK for asylum. The judge made an order by consent for the child’s return to Pakistan but the child was not returned within the specified period. Before the father could obtain an enforcement order the Secretary of State for the Home Department granted both mother and child refugee status. The Court of Appeal subsequently upheld the mother’s appeal, and application for a stay, against the enforcement order obtained by the father and remitted the matter to the High Court for the determination, prior to the final hearing, of preliminary issues including (i) whether the decision of the Secretary of State to grant the child refugee status provided an absolute bar to the Family Court ordering his return to Pakistan and, if so, (ii) by what process the father could challenge the refugee status, given that he denied the allegations of violence by the mother and child on which their asylum claims had been based.
On the preliminary issues—
Held, (1) in relation to the first issue, the cumulative effect of the Convention and Protocol relating to the Status of Refugees, the Immigration Act 1971 and immigration rules, and Council Directives 2004/83/EC and 2005/85/EC led to the clear conclusion that the determination of the refugee status of any adult or child fell entirely within “an area entrusted by Parliament to a particular public authority”, here the Secretary of State for the Home Department, and the High Court could not exercise its powers, however wide, so as to intervene on the merits in an area of concern entrusted by Parliament to another public authority irrespective of the fact that such a public authority acted administratively rather than judicially. Accordingly, the grant of refugee status to the child by the Secretary of State was an absolute bar to any order by the Family Court seeking to effect the return of the child to an alternative jurisdiction (paras 23–40, 41, 42, 44).
In re W (A Minor) (Wardship: Jurisdiction) [1975] AC 791, HL(E) applied.
In relation to the second issue, (2) the Secretary of State was actively obliged, pursuant to the immigration rules, to revoke the grant of asylum where she was satisfied that the evidence established that the person’s misrepresentation or omission of facts, including the use of false documents, had been decisive for the grant of refugee status. The Secretary of State was bound by immigration rules and public law principles to ensure that her position was both reasonable and rational, did not ignore any material consideration and gave appropriate weight to the relevant factors such that, were the Family Court to ultimately make findings of fact which undermined the allegations made by the mother against the father in her asylum claim then the Secretary of State would be required to reconsider her decision with such findings included within the scope of her consideration (paras 45–47, 63).
(3) The requirements of procedural fairness and the father’s rights under article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms obliged the court to ensure that he was able to participate effectively in the proceedings and present welfare arguments. However, in determining what material should be disclosed by the Secretary of State in the proceedings, the father’s rights had to be balanced against the competing importance of the maintenance of confidentiality in the asylum process (paras 56–60, 62).
Per curiam. Although voluntary disclosure of the allegations made by the mother against the father in her claim for asylum has been provided by the Secretary of State in the present case, that is unlikely to reflect her approach in future. The balancing of competing rights may lead to disclosure in only a very limited number of cases but to create a presumption that disclosure should be “exceptional” is corrosive to the integrity of the balancing exercise itself. The Secretary of State will frequently be better placed than the court to conduct the balancing exercise when identifying whether or to what extent disclosure should take place (paras 61, 62).
Deirdre Fottrell QC, Thomas Wilson and Michelle Brewer (instructed by Goodman Ray Solicitors) for the father.
Henry Setright QC and Brian Jubb (instructed by Maya Solicitors, Oldham) for the mother.
David Williams QC and Jacqueline Renton (instructed by Freemans Solicitors) for the child.
Andrew Norton QC and Alan Payne (instructed by Treasury Solicitor) for the Secretary of State.
Kathryn Cronin and Julia Gasparro (of Joint Counsel for the Welfare of Immigrants) for the interested party.