High Court judge says children who crossed Channel in boat can be returned to France pending determination of their asylum claims

A judge has ruled that the operation of immigration and asylum law no longer prevents the High Court from implementing a decision to return a child to another State before their asylum claim here has been determined by the Home Secretary, provided that the “general principle of non-refoulement” is upheld.

In K (Children) (Application for return orders: Concurrent asylum claims) [2025] EWHC 450 (Fam), Mr Justice Garrido observed that the general principle permits return to either the country of nationality, if there is no risk of persecution, or a safe third country.

He said: “In exercise of its 1980 Hague Convention or inherent welfare jurisdiction, the High Court can make those determinations of risk and safety when considering holistically, as it must, whether to order a return.”

The case concerned two children, aged 6 and 9, who travelled to the UK from France at their parents' instigation on a small boat. They travelled without their parents, who it is said became separated from the children as a result of a violent incident and were therefore left behind in France.

On arrival, the children were placed with foster carers pursuant to Kent County Council's obligations under section 20, Children Act 1989. It was anticipated by the local authority that the parents would follow the children very shortly afterwards by the same means.

However, the parents did not arrive in England. Nor did they exercise their parental responsibility to require the council to return their children to them.

In August 2024, the parents applied for entry clearance to the UK to join their children, and the council decided to await the outcome of that application. By then, the children, as unaccompanied minors, were deemed to have made their own applications for asylum.

Following their applications for entry clearance, the parents also sought admission to the UK as a form of interim relief pending the outcome of an application for judicial review made by them on 27 September 2024. The resulting tribunal orders were subject to appeal by the Secretary of State for the Home Department (SSHD).

The Court of Appeal handed down judgment on 20 December 2024. The Court set aside tribunal decisions requiring the SSHD to admit the parents to the UK and permitted her to delay any decision on entry clearance until at least after the conclusion of the present family proceedings.

However, the SSHD did not await the outcome of the present proceedings. She refused the parents' application for entry clearance on 30 December 2024, and they remain in France.

The judge noted: “The parents have still not, it seems, applied for asylum in France, although there is no dispute that they would be entitled so to do.

“The net result is that these traumatised children have been separated from their parents for six months. If nothing is done, or is capable of being done, by the family court, their separation may well continue for another six months, or conceivably longer, as the parents continue to pursue entry to the UK.”

In a late attempt to facilitate an earlier reunification of the children with their parents, Kent County Council applied to the court on 28 November 2024 for "such orders as are appropriate under the inherent jurisdiction, including an order for a return of the children to France."

An urgent hearing on 29 November was held, where the judge listed a final hearing on the earliest available dates in February 2025, and a further directions hearing on 10 December 2024.

On 6 December 2024 on paper, he refused an application by the parents to adjourn the directions hearing, after they had submitted that the case was “not urgent”, and the first hearing had been “procedurally unfair”.

At the final hearing, the judge said: “I note that there is still not a firm commitment by France to permit the children to return to their parents' care. A letter sent on behalf of the SSHD to the parties on the first day of this hearing states that the children could travel to France with a letter issued by the Home Office provided that the 'welfare process currently underway between [Kent] and [the French local child welfare authority]' is completed. If, by that, it is meant the completion of a welfare assessment being undertaken in France, I am told that could take up to 3 months. Kent has requested that the local welfare assessment be expedited, and a response is awaited.

“[Meanwhile], the SSHD is yet to determine the children's claims for asylum, and a timescale for when that may happen was not provided at this hearing, despite my request.”

Mr Justice Garrido said: “In G v G [2021] UKSC 9, [2021] 2 WLR 705, [the] part of the Supreme Court's judgment that is relevant to the question that I must determine is summarised in the headnote as follows:

"(2) That, since the factual findings made by a court in proceedings under the Hague Convention were neither made by the determining authority for the purposes of Council Directive 2005/85 nor pursuant to a process which complied with the examination procedure in that Directive, they did not bring to an end the protection against refoulement which article 7 of the Directive conferred on an applicant for asylum; that, therefore, where there were parallel applications for asylum and under the Hague Convention, the protection conferred by article 7 of the Directive continued until the Secretary of State, as determining authority, had determined the asylum application; that, further, the obligation in article 7 bound the state in its entirety so as to preclude any emanation of the state, including the High Court, from implementing a return order so as to require an asylum applicant to leave the United Kingdom before the Secretary of State had determined their asylum application; that, moreover, an asylum applicant could also rely on paragraph 329 of the Immigration Rules to prevent their removal from the United Kingdom pursuant to a return order; and that, accordingly, a return order under article 12 of the Hague Convention which had been made in respect of a child who had applied for asylum, or was to be treated as having applied for asylum, could not be implemented until the child's asylum application had been determined by the Secretary of State (post, judgment of Lord Stephens JSC, paras 128—134)."”

He continued: “A number of matters are uncontroversial before me. First, the prohibition said to exist by the Supreme Court in respect of implementing return orders pursuant to the 1980 Hague Convention also applies to return orders under the High Court's inherent jurisdiction. Therefore, if the decision in G v G remains good law, the preliminary issue which I must decide is answered by binding authority.

“Second, the welfare assessment can and should be undertaken by me in exercise of the inherent jurisdiction in any event, even if just to inform the immigration law decision making process and to await its outcome before considering implementation.

“Third, it is well settled that the SSHD has sole responsibility in matters of asylum and immigration and all decisions relating to claims for asylum fall within her exclusive powers. The family court cannot trespass on the SSHD's function in that regard. When making a return order, however, the Family Division is exercising a different power to safeguard a child's welfare by promoting their best interests or complying with the obligations under the 1980 Hague Convention.”

He finally noted that Council Directive 2005/85 (the procedures directive) no longer applies in the United Kingdom and the domestic statute and Immigration Rules have subsequently been amended.

He said: “This latter point of consensus leads Kent and the SSHD to argue, with the support of the children's guardian, that because the reasoning of the Supreme Court was founded on the application of the procedures directive and old rules that no longer apply, I am free to determine afresh whether the prohibition on the High Court implementing a return order pending resolution of a child's asylum claim still holds. They submit that it does not.”

On behalf of the parents, it was submitted that the decision in G v G “has its foundations in the broader principle of non-refoulement” and therefore, despite the procedures directive no longer having effect in the UK, the High Court is still bound by G v G not to implement a return order pending determination by the SSHD of a child's asylum claim.

Analysing the case, the judge noted that the reasoning of the Supreme Court at paragraphs 124 to 133 of G v G that led to the conclusion that "until a request for international protection is determined by the Secretary of State a return order ... cannot be implemented" is “plainly based on the positive obligations and restrictions then imposed by article 7 of the procedures directive, and the old rule 329 of the Immigration Rules to which I have referred, and which no longer exist”.

He added: “The enhanced protection for claimants provided by article 7 of the procedures directive no longer applies and no other provision imposes a positive duty on the State to allow an asylum claimant to remain here pending determination of their claim. Therefore, the whole basis of the Supreme Court's conclusion falls away.”

The judge noted that support for his analysis could be found in the reasoning of Dame Siobhan Keegan LCJ in the judgment of the Court of Appeal of Northern Ireland, In the matter of AB (A Minor), “that although not binding on me and not resulting from full argument, nevertheless deserves the utmost respect”:

“[58] Article 7 was at the core of Lord Stephens' analysis of the obligation extending to all emanations of the state. The dicta at para 113 of G v G is of particular importance in highlighting that the safeguards within the immigration process do not extend beyond that, and, in particular, do not fetter a judge considering an application under the Hague Convention.”

He continued: “Further support for this analysis can be found in the judgment of Mrs Justice Gwynneth Knowles in Re A and Others (Care Proceedings: 1996 Hague Convention: Habitual Residence) where it was said at paragraph 69:

"I find myself drawn to the analysis in AB which recognises a different reality now applying to the determination of asylum claims from that which Lord Stephens considered in G v G in early 2021... Though I have not heard detailed argument on the point, AB is authority for the proposition that, as appears from the Supreme Court's decision in R (AAA), the Procedures Directive is no longer part of retained EU law in this jurisdiction. Thus, the reliance by Lord Stephens on article 7 of that Directive may no longer be sustainable as a matter of statute. Further, the amendments to section 77 of the Nationality, Immigration and Asylum Act 2002 which came into effect from 28 June 2022 and the amended paragraph 329 of the Immigration Rules operate together to rescind the positive obligations flowing from article 7 of the Procedures Directive which played so significant a role in Lord Stephen's decision...."

And at paragraph 71:

"...I am provisionally of the view that the operation of immigration and asylum law does not prevent this court from implementing a welfare decision which might result in the return of these children to Austria before their application for asylum in this jurisdiction has been determined..."

Concluding the case, Mr Justice Garrido said: “I have received full argument, including on behalf of the SSHD, and I respectfully agree with the analysis and reasoning of Keegan LCJ and Gwynneth Knowles J. For the reasons that they and I have given above, I have concluded that the operation of immigration and asylum law no longer prevents the High Court from implementing a decision to return a child to another State before their asylum claim here has been determined by the SSHD, provided that the general principle of non-refoulement is upheld.

“That general principle permits return to either the country of nationality, if there is no risk of persecution, or a safe third country. In exercise of its 1980 Hague Convention or inherent welfare jurisdiction, the High Court can make those determinations of risk and safety when considering holistically, as it must, whether to order a return.”

Lottie Winson