England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT (FAMILY DIVISION)
(BENNETT J)

		Royal Courts of Justice Strand London WC2 Thursday, 9th May 2002

1. LORD JUSTICE LAWS: This is an application for permission to appeal against a decision of Bennett J given in the Family Division of the High Court on 24th April 2002, when, on their father's application, by way of originating summons issued on 5th October 2001, the judge ordered the return forthwith to India of two children: J, born on 11th September 1997, and V, born on 23rd February 1999. In making the application, the father invoked the wardship jurisdiction of the High Court. India has not ratified the convention on the civil aspects of international child abduction, signed at the Hague on 25th October 1980.
2. The defendant to the proceedings was the boy's mother. She had come to the United Kingdom with the two children, initially for a holiday. On 2nd October 2001 she made an application for asylum. She named the children as her dependents but no separate or independent claim for asylum was made on their behalf. Her asylum claim was rejected by the Secretary of State on 9th January 2002 but on 10th January the mother and children were granted exceptional leave to remain in the United Kingdom for four years. On 15th January 2002 she launched an appeal against the refusal to grant her indefinite leave as a refugee. That appeal remains outstanding.
3. The only point on which permission is realistically sought relates to section 15 of the Immigration and Asylum Act 1999, which provides:

"(1) During the period beginning when a person makes a claim for asylum and ending when the Secretary of State gives him notice of the decision on the claim, he may not be removed from or required to leave the United Kingdom.

(2) Subsection (1) does not prevent--

(a) direction for his removal being given during that period;

(b) a deportation order being made against him during that period.

(3) No such direction or order is to have effect during that period."

4. I should summarise the effect of rule 329 of the relevant immigration rules, which provides that, until an asylum application has been determined by the Secretary of State or he has issued a certificate under certain provisions of the Act of 1999, no action will be taken to require the departure of the asylum applicant or his dependents from the United Kingdom.
5. Bennett J, dealing with what perhaps I may be allowed to call the family or welfare issues in the case, concluded on the merits that the balance came down in favour of the children being returned to India pursuant to the father's application. I need not read the reasoning that led to that conclusion or the learned judge's treatment of the evidence about it that was before him. Having so concluded, he proceeded to deal with the distinct submission to the effect that in the circumstances section 15 of the Act of 1999 precluded the children's return to India. After a very careful discussion of the submissions made to him, the judge said at the end of paragraph 112 of his judgment:

"However, in my judgment, Mr Setright is broadly correct in submitting that the purpose of section 15 is to prevent the executive, ie the Government, from removing or requiring to leave those who have made applications for asylum pending their determination. Section 15, upon a proper construction, in my judgment does not prevent a family judge from carrying out his obligations or powers, whether under international convention, statute or wardship, to return a child to the country of its habitual residence whether or not the child is the dependant of any asylum applicant or has made an application in his own right."

6. Accordingly, he concluded that section 15 constituted no inhibition to his making an order for the return of the children to India or indeed for the execution of that order.
7. He proceeded to deal with certain alternative submissions that were advanced before him. They are recorded in summary form in paragraph 116 thus:

"... even if section 15 is applicable, it does not preclude a court from ordering the return of a child, where that child was not applying in its own right for asylum but nevertheless was a dependant of a parent who had applied for asylum."

8. Those submissions also were accepted (see paragraphs 118 and 119). So it was the order for return was made.
9. Mr Turner QC now advances his application for permission to appeal that order. Taking the matter shortly, to my mind there is only one question. That is whether it is arguable that section 15 prevents the removal of a person to another country by order of a court, such as was done here. For my part I consider there is much force in the arguments which the judge accepted; but on the face of it section 15(1) is in unqualified terms and I cannot think that the point is beyond argument. It must in my view also be arguable whether any prohibition, if that is imposed by section 15, extends also to the case of dependants such as the children here. For those reasons I would grant permission to appeal.
10. Mr Turner has also sought to persuade the court to admit further evidence as to the facts of the matter relating to the circumstance, of which he has informed us, that the mother has now decided that in any event she will not return to India. In my view there is no arguable point of appeal which would require the admission of any such evidence.
11. If my Lord agrees that permission should be granted, I would propose that the case be expedited and a day fixed in the near future. The matter should not take more than half a day to dispose of.
12. LORD JUSTICE THORPE: I agree with all that my Lord has said in explaining the grant of permission in this case. Permission is therefore granted. Paragraph 1 of the order of 24th April is stayed pending the determination of the appeal. There is to be an expedited hearing of the appeal, to be listed before me, my Lord and another Lord Justice, if practicable. There is a time estimate of half a day.
13. MR TURNER: I am very grateful, my Lords.