“39. The starting point for a consideration of the implications of A's refugee status will have to be, in my view, that at the very least it is unlikely to be appropriate for the family court to order A's return to Pakistan without first concluding that his situation did not, in fact, justify the protection afforded by the Secretary of State. It needs to be recognised that the position may go further in that, if some of the submissions made to us are correct, it might not even be permissible for the family court to order A's return unless and until his refugee status is revoked. The questions that will need to be addressed include at least the following: i) Is A's refugee status an absolute bar to the family court ordering his return to Pakistan? ii) If so, by what process can the father challenge the refugee status, given that he denies the allegations of violence by the mother and A upon which their asylum claims were based? By virtue of paragraphs 338A and 339AB of the Immigration Rules, a grant of refugee status shall be revoked where the Secretary of State is satisfied that the person's misrepresentation was decisive for the grant. The question arises as to how the determination is made that there has been a misrepresentation. Normally this would be a matter for the Secretary of State alone, but where the family court needs the issue resolved in order to decide what is in a child's best interests, can the family court determine it itself? Is it necessary for the Secretary of State to be joined in the proceedings, in those circumstances, not least with the intent that the family court's determination should be binding upon her too? Is it necessary for the grant of refugee status to be formally revoked by the Secretary of State prior to a return order being made or is some lesser process sufficient? iii) If the family court determines whether there has been a misrepresentation, on what basis does it do so? Is the usual process of making findings of fact on the balance of probabilities appropriate or is it necessary to take the sort of approach taken by the Secretary of State to the determination of asylum claims? iv) If A's asylum status is not an absolute bar, how should it be taken into consideration in the family proceedings? Once again, the question arises as to how the court should resolve the factual debate between the parties. v) Does it make any difference that, strictly speaking, A probably has humanitarian protection rather than protection as a refugee?”
“I recognise that it may be thought unhelpful to return the case to a Family Division judge without providing comprehensive guidance as to how the question of A's refugee status should be approached. However, I think it would be wrong to offer any definitive views about this at this stage. It is a very difficult question and the court will require as much help as it can possibly get, not only from the family law angle but also in relation to immigration and asylum law and practice.”
“26. In my view, the power to make immigration rules under the 1971 Act derives from the Act itself and is not an exercise of the prerogative. As its long title indicates, the purpose of the 1971 Act was to replace earlier laws with a single code of legislation on immigration control. Parliament was alive to the existence of the prerogative power in relation to enemy aliens and expressly preserved it by section 33(5). But prima facie, subject to the preservation of that power, the Act was intended to define the power to control immigration and say how it was to be exercised. 27. It is true that there is no provision in the 1971 Act which in terms confers on the Secretary of State the power or imposes on her the duty to make immigration rules. But for the reasons that follow, in my view it is implicit in the language of the Act that she is given such a power and made subject to such a duty under the statute.”
“Nothing in the immigration rules (within the meaning of the 1971 Act) shall lay down any practice which would be contrary to the Convention.”
“(1) The decision to consider material provided in the course of Family proceedings does not directly inform the actor of persecution of the fact the Child is a refugee nor that his refugee status is under consideration. Such an approach is not therefore inconsistent with either Article 38 of the PD or paragraph 339IA of the Immigration Rules [F72 and 73]. (2) Similarly, the provision of material by the Father does not result in his being “directly informed” that a consideration is being given to revoking the Child’s refugee status [76]. (3) Further and in any event, these issues do not arise where the Father is aware of the grant of asylum. (4) There is no circularity arising from the fact that the SSHD decides whether any evidence of misrepresentation justifies the revocation of asylum. In particular the SSHD is uniquely well placed to determine the impact any misrepresentation had on her decision making [74]. (5) The fact that they are no defined rules governing the provisions of information to the SSHD, whether a review should be instigated, and whether the Father should be informed that consideration is being given to revoking the Child’s refugee status and the outcome of the review provides no basis for concluding that judicial review is not an effective remedy. In any event, the short answer is that since the SSHD’s accepts that she is under a public law duty to consider material relevant to the question of revocation, it would be open to the Father in principle to challenge a failure to review such material on public law grounds. (6) The Father participates in this process by way of the evidence that he has given in the Family proceedings and the findings made by the Family Court. In any event, the lack of participation does not render ineffective the judicial process - in particular since it would be open to the Court to hear evidence from the Father if this was considered to be relevant. (7) The potential adverse impact of the Father not being able to travel to the UK is the same for both Family proceedings and judicial review proceedings.”
“i) Practitioners acting for the parent in the family proceedings have an ongoing duty to remain au courant with what is going on elsewhere even if the other matter is being handled by other professionals. ii) The parents, as part of their ongoing obligation to be frank and open with the court, are under a duty to instruct those advising them in any other relevant matter to keep their family solicitors informed of what is going on. And it is the duty of those advising them in the other matter, having received such authority, to keep the family solicitors informed accordingly. iii) Practitioners involved in family proceedings have a duty to take adequate steps before each hearing to find out, from the solicitors or other professional advisers acting for their client in any other relevant matter, what has been going on, where the other matters have got to and, in cases where some formal decision is anticipated, when that decision is likely to be given. iv) With a view to minimising the room for uncertainty or misunderstanding, it is preferable to obtain copies of the correspondence and other documents on the other solicitors’ files rather than attempting to find out what is going on by means of questions and answers in correspondence which may, through lack of understanding, miss the point or be misunderstood. v) If the practitioners acting for the parent in the family proceedings are finding it difficult to obtain the relevant information from the solicitors or other professional advisers acting for their client in the other matter, then prompt consideration needs to be given – and at the earliest possible stage – to approaching the court with a view to inviting the court either to make a peremptory order that the other advisers deliver a complete copy of their file to the solicitors acting in the family proceedings or to make an order pursuant to the Protocol. Such applications should not be left to the next directions or other hearing which has already been fixed if waiting until then may generate inappropriate delay. i) Where the outcome in the family proceedings is dependent upon or likely to be affected by the decision of some third party, consideration should be given – at the earliest possible stage in the proceedings – as to whether and if so how that third party decision maker should be brought into some appropriate form of direct engagement with the family proceedings.”
“ensure that authorities implementing this Directive are bound by the confidentiality principle as defined in national law, in relation to any information they obtain in the course of their work.”
“Confidentiality is a vital element for the working of the asylum system and the proper discharge by the UK of its obligations under the Refugee Convention, QD and ECHR. The need for those seeking asylum to have confidence that the information they provide will not be made public means that there is a compelling public interest in ensuring that this confidentially is protected. This applies a fortiori to those granted refugee status (where the risk of harm has been established). For these reasons the SSHD considers that such disclosure should not take place absent exceptional circumstances and a Court order.”
“…the mutual enjoyment by parent and child of each other’s company constitutes a fundamental element of family life and domestic measures hindering such enjoyment amount to an interference with the right protected by Article 8. ”
“… while the essential object of Article 8 is to protect the individual against arbitrary interference by the public authorities, there may in addition be positive obligations inherent in effective ‘respect’ for family life. As to the State’s obligation to take positive measures, Article 8 includes the right of a parent – in this case the father – to the taking of measures with a view to his or her being reunited with his or her child and an obligation on the national authorities to take such action…’ ”
“‘To that end the Court must ascertain whether the domestic courts conducted an in-depth examination of the entire family situation and of a whole series of factors, in particular of a factual, emotional, psychological, material and medical nature, and made a balanced and reasonable assessment of the respective interests of each person, with a constant concern for determining what the best solution would be for the abducted child in the context of an application for his return to his country of origin.’ ”
“In consequence, the Court considers thatArticle 8 of the Convention imposes on the domestic authorities a particular procedural obligation in this respect: when assessing an application for a child’s return, the courts must not only consider arguable objection to the child’s return, but must also make a ruling giving specific reasons in the light of the circumstances of the case. Both a refusal to take account of objections to the return capable of falling within the scope of Articles 12, 13 and 20 of the Hague Convention and insufficient reasoning in the ruling dismissing or accepting such objections would be contrary to the requirements ofArticle 8 of the Convention and also to the aim and purpose of the Hague Convention. Due consideration of such allegations, demonstrated by reasoning of the domestic courts that is not automatic and stereotyped, but sufficiently detailed in the light of the exceptions set out in the Hague Convention, which must be interpreted strictly (see Maumousseau and Washington, cited above, § 73), is necessary. ”
“In this respect, the Court reiterates that the Convention is designed to “guarantee not rights that are theoretical or illusory but rights that are practical and effective” (see, among other authorities, Airey v. Ireland,9 October 1979 , § 24, Series A no. 32). As regards litigation involving opposing private interests, equality of arms implies that each party must be afforded a reasonable opportunity to present his case – including his evidence – under conditions that do not place him at a substantial disadvantage vis-à-vis his opponent. ‘When examining the overall decision-making process the Court cannot disregard the fact that the file before the domestic courts contained controversial pieces of evidence. The Court finds that giving the first applicant the opportunity to present his case either directly or through written submissions was of paramount importance for ensuring the fairness of the decision-making process.”
“While the Supreme Court has determined that, in the context of Hague Convention proceedings, the Convention jurisprudence does not require an abandonment of the summary approach to determining applications in the abduction context (Re E (Children) (Abduction: Custody Appeal)[2012] 1 AC 144 ), it remains a fundamental principle of Convention jurisprudence that Article 8 imposes an obligation on the State to ensure that a ‘left-behind’ parent is able to participate effectively and present welfare arguments. ”
“Accordingly, when considering whether to order disclosure the Court will need to consider whether disclosure would be compatible with the refugee’s ECHR rights, and in particular their Article 3 and 8 rights. In addition, in considering proportionality under Article 8 the Court will need to attach particular weight to the wider powerful public interest in protecting the confidentiality of the asylum process. This is particularly so where the applicant for disclosure is the alleged persecutor. Against these considerations the Court will need to weigh, in the case of an application made by a family member, any adverse Article 6 and/or 8 impact of disclosure not being provided to the person making the application. The SSHD’s position is that only where an exceptional case is established by an applicant will disclosure be necessary.”