FD25P00187 - [2025] EWHC 2629 (Fam)

In G v G [2021] UKSC 9, the United Kingdom Supreme Court held that an applicant pursuing a protection claim has protection from refoulement (i.e. expulsion or return of an individual to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion per Art 33 of the 1951 Geneva Convention) pending the determination of claim. Accordingly, the Supreme Court was satisfied that a return order granted pursuant to the 1980 Hague Convention could not be implemented until all legal challenges to the decision of the Secretary of State, in respect of which there is an in-country appellate process, have been exhausted.

In Re A and Others (Care Proceedings: Inherent Jurisdiction: Order for Return to Austria) [2024] EWFC 178 Gwynneth Knowles J determined that implementation of a return order does not need to wait for the asylum claim to be finally determined if the return in question is to a safe third country, having regard to changes to the legislation implemented since the decision of the Supreme Court in G v G comprising the effect of the Immigration and Social Security Coordination (EU Withdrawal) Act 2020 on the relevant provisions of the Procedures Directive and s.77 of the Nationality, Immigration and Asylum Act 2002 as amended by the Nationality and Borders Act 2022, in relation to claims made after 28 June 2022, to the effect that removal to a safe third country can occur pending the determination of an individual's asylum claim.

Within the foregoing context, and in circumstances where as I have noted the Secretary of State has confirmed that Brazil is not treated as a safe third country for the purposes of s.77(2B) of the Nationality, Immigration and Asylum Act 2002 as amended, the current protection claims in respect of the children launched by the paternal grandmother will delay the implementation of any return order made by the court in these proceedings under the 1980 Hague Convention unless the applications in respect of the children are now withdrawn or the appeals are dismissed.