FE v YE

FE v YE

A grant of asylum to the subject children, or a pending asylum claim (including all appeal rights), is an absolute bar to a return order under the 1980 Hague Convention. The principle of non-refoulement overrides the procedural relief of the Hague Convention. No return order can be made or take effect while an asylum claim or appeal is pending. If an asylum claim is refused and all appeal rights are exhausted, a return order may be implemented, subject to judicial discretion regarding further appeals.

Parties
Applicant: FE; Respondent: YE; Intervener: Secretary of State for the Home Department
Jurisdiction
England and Wales
Judgment Date
25 August 2017
Procedural Posture
Hague Child Abduction / Family Law / Judgment After Full Hearing
Outcome
Return order granted, but stayed pending asylum appeal outcome.
Legal Topics
Hague Convention 1980, Asylum and Refugee Law, Non Refoulement, Child Abduction, Jurisdictional Conflict
Family Law Immigration Law International Law Hague Convention 1980 Asylum and Refugee Law Non Refoulement Child Abduction Jurisdictional Conflict

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Parties

FE

Applicant

YE

Respondent

Secretary of State for the Home Department

Intervener

Procedural Posture

Hague Child Abduction / Family Law / Judgment After Full Hearing

Legal Issues

  1. 1 Does a pending or granted asylum claim by subject children bar or halt a return order under the 1980 Hague Child Abduction Convention?
  2. 2 Can a return order be made or take effect while an asylum claim or appeal is pending?
  3. 3 Does the principle of non-refoulement override the procedural relief of the Hague Convention?

Ratio Decidendi

A grant of asylum to the subject children, or a pending asylum claim (including all appeal rights), is an absolute bar to a return order under the 1980 Hague Convention. The principle of non-refoulement overrides the procedural relief of the Hague Convention. No return order can be made or take effect while an asylum claim or appeal is pending. If an asylum claim is refused and all appeal rights are exhausted, a return order may be implemented, subject to judicial discretion regarding further appeals.

Court Disposition

Return order granted, but stayed pending asylum appeal outcome.

Orders

  • Children to be returned to Israel; order not to take effect until 15 days after promulgation of First-tier Tribunal decision on asylum appeal.
  • If appeal allowed, return order stayed.