APPEAL BY BFH AGAINST SECRETARY OF STATE FOR THE HOME DEPARTMENT FOR JUDICIAL REVIEW [2021] ScotCS CSIH_51 (05 October 2021)

APPEAL BY BFH AGAINST SECRETARY OF STATE FOR THE HOME DEPARTMENT FOR JUDICIAL REVIEW [2021] ScotCS CSIH_51 (05 October 2021)

The Lord Ordinary erred in finding the proceedings had no practical purpose post-asylum grant. Court findings on M's best interests may significantly influence the Secretary of State's review of asylum and are not academic. The proceedings remain important for establishing M's welfare, and dismissal was inappropriate.

Citation
[2021] CSIH 52 F85
Parties
Pursuer and Reclaimer: ZA; Pursuer and Reclaimer: MN; First Defender and Respondent: B; Second Defender and Respondent: A; Third Defender and Respondent: Advocate General for Scotland; First Party Minuter, Fourth Defender and Respondent: M; Second Party Minuter, Fifth Defender and Respondent: AI
Jurisdiction
Scotland
Judgment Date
05 October 2021
Procedural Posture
Family Law Specific Issue Order / Appeal (reclaiming Motion) Against Dismissal of First Conclusion
Outcome
Appeal allowed; dismissal of first conclusion recalled; case remitted for further proceedings.
Legal Topics
Specific Issue Orders, Asylum and Refugee Status, Child's Best Interests, Competency of Proceedings
Family Law Immigration Law Child Welfare Specific Issue Orders Asylum and Refugee Status Child's Best Interests Competency of Proceedings

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 3 Authorities cited 7 Party arguments 2
Sign in to unlock

Parties

ZA

Pursuer and Reclaimer

MN

Pursuer and Reclaimer

B

First Defender and Respondent

A

Second Defender and Respondent

Advocate General for Scotland

Third Defender and Respondent

M

First Party Minuter, Fourth Defender and Respondent

AI

Second Party Minuter, Fifth Defender and Respondent

Procedural Posture

Family Law Specific Issue Order / Appeal (reclaiming Motion) Against Dismissal of First Conclusion

Legal Issues

  1. 1 Whether the court can proceed with a specific issue order for return of a child granted asylum
  2. 2 Whether proceedings have practical purpose post-asylum grant
  3. 3 Whether section 11(7)(a) Children (Scotland) Act 1995 applies to dismissal of the first conclusion

Ratio Decidendi

The Lord Ordinary erred in finding the proceedings had no practical purpose post-asylum grant. Court findings on M's best interests may significantly influence the Secretary of State's review of asylum and are not academic. The proceedings remain important for establishing M's welfare, and dismissal was inappropriate.

Court Disposition

Appeal allowed; dismissal of first conclusion recalled; case remitted for further proceedings.

Orders

  • Recall Lord Ordinary's interlocutor of 29 July 2021 dismissing the first conclusion.
  • Remit to a different Lord Ordinary to proceed as accords.