NA (Dismissal of Application Under Hague Convention), Re [2015] EWHC 3686 (Fam)

Case No FD15P00274[2015] EWHC 3686 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Venue Royal Courts of JusticeDate Friday, 11 th December 2015
Before
MR JUSTICE HOLMAN(Sitting throughout in public)
Between
Applicant FatherApplicantRespondent motherRespondent
Re: NA
(Dismissal of application under Hague Convention)
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NICHOLAS ANDERSON appeared on behalf of the Applicant Father.
MERCY AKMAN appeared on behalf of the Respondent mother.
J U D G M E N T
[1]This is an application by a father for an order for the summary return of his son to Belgium, pursuant to the Hague Convention on the Civil Aspects of International Child Abduction. It is a case with some relatively unusual features, as a result of which I intend to dismiss the application. I must of course give my reasons for doing so, but they can be relatively brief.[2]In a sentence, this child cannot be returned to Belgium because the state of Belgium would not permit either the child or his mother lawfully to enter Belgium and remain there.[3]Both parents originate from Iran and they are each citizens of Iran and of no other state. The father is now aged thirty-four and the mother twenty-eight. They were both born and brought up in Iran. They began a relationship and married in Iran in 2005. In 2008 they travelled together to Belgium, where they each applied for asylum. Their applications were refused in 2009 and further appeals were dismissed. They tried again to seek asylum in Belgium in 2011 but that application, too, was refused. In November 2011 their only child, a son, NA, was born, so he is now aged just four. He was born in Belgium but is not a citizen of Belgium. Difficulties arose in the relationship between the parents, and in early 2013 there was physical separation between them. The son remained in the care of the mother. There is some dispute between the parents as to the exact chronology in the first few months of 2013 but it is no longer relevant.[4]In May 2013 the mother travelled with their son to England, where they have physically resided ever since. On 12th May 2013 the mother applied to the United Kingdom authorities for asylum here. At that time the Secretary of State for the Home Department was aware, or did learn, that there had been an earlier and first claim for asylum in Belgium. As a result, she (the Secretary of State) could have returned the mother and her dependent child to Belgium for her fresh asylum claim to be considered there. As I understand it, the Belgian authorities would at that time have “taken back” the mother and the child, pursuant to the provisions of the EU Council regulation known as Dublin II. However, the Secretary of State did not at that stage attempt to remove the mother and child to Belgium, nor, indeed, take any other active steps in relation to them. Although I have no evidence, I assume that that was simply a period of inactivity or delay on the part of the Secretary of State due to the enormous burden upon her of coping with asylum and immigration applications which, as is well known, has led to considerable backlogs.[5]Meantime, in October 2013 the father made a yet further and fresh application for asylum in Belgium, and in November 2013 he was granted refugee status and permanent residency in Birmingham. That, however, pertained to him alone and not to his wife or child, who were not then in Belgium, nor actively seeking asylum in Belgium.[6]There was indirect contact between the father and the child on occasions during 2014. In June 2015 the father issued an application for the return of his son to Belgium pursuant to the Hague Convention, thereby commencing the present proceedings. It is to be noted that that application was issued a little more than two years after the removal of the child from Belgium, and accordingly the application would in any event have raised a lively question as to whether it was “demonstrated that the child is now settled in its new environment” within the meaning of, and for the purpose of, Article 12 of the Convention. That issue and, indeed, any other “defences” under the Hague Convention has never been considered, nor determined, by the court; for in the meantime the question arose whether, even if ordered to return the child to Belgium, the mother could, in fact, lawfully do so, because it appeared that neither she nor the child would be permitted to enter Belgium. As I have indicated, that difficulty arose because the period within which the state of Belgium would have been required to take back the mother and child pursuant to the regulation Dublin II had long since elapsed. It appeared, therefore, that the mother herself could not lawfully voluntarily return with the child to Belgium. It appeared also that the Secretary of State for the Home Department could not now remove the mother and child to Belgium, although it might have been open to the Secretary of State to remove them to Iran, being the state of which they are both citizens.[7]During the last few months there have been several brief hearings before the court, and most recently on two earlier occasions before myself, whilst efforts have been made fully to explore the immigration status of the mother and child here; the intentions of the Secretary of State with regard to removing them; and the question whether the mother and child could be forcibly removed to Belgium or, indeed, voluntarily return to that state. One possibility that was mooted was that, upon application to it, the state of Belgium might exercise a discretion to permit the mother and child to return to and enter Belgium on the basis of a “family reunion visa”. The difficulty with that particular suggestion was and is that there is no question of “family reunion”, because the mother makes crystal clear that she is not willing to return to live with, or in any way be “reunited” with, the father.[8]Against that background I made an order dated 28th October 2015, which anyone with a proper interest in this matter could read for its full terms and effect. There were two recitals, which essentially recorded the position as it was or appeared to be at that date, namely:
“1. Upon it now appearing from the reply from the Home Office dated 28th October 2015 to the request for information in Form EX660 that the mother and child cannot now be returned to Belgium pursuant to the Council Regulation Dublin II, and that the Home Office is now substantively considering the mother’s and child’s claim for asylum, which (it appears) are likely to result in the Home Office either granting asylum or seeking to return the mother and the child to Iran; 2. And upon the present evidence from the Belgian authorities and in relation to Belgium appearing to indicate that the mother and child could be granted admission on a ‘family reunion visa’, but that there cannot be a ‘family reunion’ as the mother would not agree to living again with the father, and would not voluntarily agree to the child living with the father; but that it is possible (but speculative) that the Belgian authorities might permit the mother and the child lawfully to enter Belgium (without passports) on some alternative basis.”
[9]Upon the basis of those recitals, this case was further adjourned until today, and my order made plain, in summary and in effect, that the father had an opportunity meantime to obtain evidence and material from the state of Belgium to the effect that the mother and child would both be permitted lawfully to enter and remain in Belgium and that any fresh application by the mother and child for asylum in Belgium would be considered by that state. The order made clear that the documents and material required to be produced by the father would have to include an original authentic official actual laissez-passer or similar document in respect of each of the mother and the child, which would actually permit each of them lawfully to enter and remain in the state of Belgium.[10]Over six weeks have elapsed since that order, and the father has not been able to obtain or produce any such material or documents and, quite frankly, it would seem that there is no realistic prospect now of the Belgian authorities permitting this mother and child to return to and enter Belgium on any basis.[11]Meantime, there has been a further very significant development. By a decision letter dated 16th November 2015 the Home Office informed the mother and the child that they have been granted asylum in the United Kingdom for a period of five years, with leave to remain here until 12th November 2020. The letter makes clear that if they wish to remain after that date, they must make an application for further leave before the leave now granted expires.[12]So, the position now is that the ability of the mother and child to remain here for the next five years is no longer tenuous but has been granted. There is, therefore, no further imminent possibility or prospect of the mother and child being forcibly removed by the Secretary of State to Iran. Equally, there is no longer the slightest scope for the application of Council Regulation Dublin II or the mother’s claim for asylum being considered in Belgium, since she and the child have been granted asylum here.[13]In those somewhat unusual circumstances I simply dismiss this claim for a return of the child summarily to Belgium pursuant to the Hague Convention, on the short grounds that it is not practicable or possible for either the mother or the court or, indeed, anyone else to give lawful effect to an order if one was made for the return of this child to Belgium. As I have indicated, there may have been a range of other “defences” to the application, but in the circumstances I have not given any consideration to them and dismiss this application on the short basis that I have described.