How can developments in Immigration Law affect Family Law?

How can developments in Immigration Law affect Family Law?

The case of Re K (Children) (Application for return orders: Concurrent asylum claims) [2025] EWHC 450 (Fam) considered whether the Family Courts had the power to issue return Orders for children under the Hague Convention 1980 when the subject children have outstanding claims for asylum in the UK. Solicitor apprentice, Beatrice Hill summaries the case as follows.

The two subject children, MIK and MAK were aged just 6 and 9 when they made the journey from France to the UK across the English Channel on a small boat and arrived in the UK on 19 July 2024. It was understood the children took this journey at the instigation of their parents. The family’s country of origin is not revealed in the judgment. Due to arriving in the UK as unaccompanied minors, the children’s applications for asylum were automatically made and they were placed in foster care in Kent.

The parents made an application for entry clearance to the UK on 21 August 2024 and later admission to the UK as a form of interim relief on 27 September 2024. Both these applications were denied by the Secretary of State.

Kent applied to the Family 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”. Before the Court could consider Kent’s application, the Family Court needed to resolve 3 legal issues:

(i) The basis for the court's jurisdiction.

(ii) Whether Kent should be given permission to make the application pursuant to s100(4) Children Act 1989; and

(iii) Whether any order to reunify the family in France can be implemented pending the determination of the children's asylum applications.

It was agreed by all parties that the Court had jurisdiction, and Kent should be given permission to make their application.

To determine the final point, namely if the children could be returned to France by the Family Court whilst their applications for asylum were pending, the Judge had to consider recent developments in the law, particularly because of Brexit. The leading authority on this point, G v G [2012] UKSC 9 stated that the Family Court could not make return Orders under the Hague Convention whilst the asylum application was pending as a result of section 77 of Nationality, Immigration and Asylum Act 2002.

The Judge noted the law had changed since G v G had been heard and the Nationality and Borders Act 2022 had since been implemented. The Nationality and Borders Act 2022 allows for asylum claimants to be removed to a safe third country of which the individual is not a national or a citizen.

The Judge therefore allowed Kent’s application and made return Orders for the children to be reunited with their family in France, pending their asylum application in the UK.

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