West Law Report

Mother’s removal would breach family rights

Posted in House of Lords (case), Times Law Report by mrkooenglish on November 9, 2008

From The Times
October 24, 2008
Mother’s removal would breach family rights

House of Lords

Published October 24, 2008

EM (Lebanon) v Secretary of State for the Home Department

Before Lord Hope of Craighead, Lord Bingham of Cornhill, Baroness Hale of Richmond, Lord Carswell and Lord Brown of Eaton-under-Heywood

Speeches October 22, 2008

The removal of a foreign national from the United Kingdom would be incompatible with the United Kingdom’s obligations under article 8 of the European Convention on Human Rights as it would completely deny or nullify her right to family life in the destination country.

The House of Lords so held in giving reasons for having allowed an appeal by EM, the mother of AF, from the dismissal by the Court of Appeal (Lord Justice Carnwath, Lord Justice Gage and Mr Justice Bodey) ([2007] UKHRR 1) of her appeal against that part of a decision of the Asylum and Immigration Tribunal upholding an immigration judge’s decision that her removal to Lebanon following the Secretary of State for the Home Department’s refusal of her claim to asylum would not breach her article 8 rights.

Miss Frances Webber and Ms Stephanie Harrison for EM; Mrs Monica Carss-Frisk, QC and Ms Nicola Greaney for the Home Secretary; Mr Henry Setright, QC, Mr Teertha Gupta and Ms Margaret Phelan for AF, intervening; Mr Rabinder Singh, QC and Mr Raza Husain for JUSTICE and Liberty, both intervening.

LORD BINGHAM said that by article 8, given domestic effect by the Human Rights Act 1998, everyone in the United Kingdom had the right to respect for their family life, which could be the subject of interference by a public authority only if the interference was lawful, proportionate and directed to a legitimate end.

The enjoyment of that right was, by article 14 of the Convention, to be secured without discrimination on any ground such as sex.

EM claimed that if she and her son were removed to Lebanon her right to respect for her family life would be infringed on a discriminatory basis attributable to her being a woman. That claim rested not on any treatment she or AF would suffer in the United Kingdom but on the consequences if she and her son were returned to Lebanon.

It was thus what had been described as a foreign case: the only conduct by a British authority of which EM complained was her removal to a place where she would suffer those consequences. The burden lying on a claimant in a foreign case was a very exacting one.

EM was Muslim and had married in Lebanon according to Muslim rites. Her evidence, accepted as true in the present proceedings, was that during her marriage her husband had subjected her to violence and had tried, on one occasion at least, to strange her.

On the day that their son, AF, was born the husband had come to the hospital with his family to take AF to Saudi Arabia but had been prevented from doing so. He had not seen AF since.

The parents had divorced in Lebanon. Under the prevailing law the father retained legal custody of AF but the divorce court ruled that the child should remain in EM’s care until he reached the age of seven.

Thereafter, Islamic law as applied in the Lebanon entitled the father to require that physical custody should be transferred to himself or to a male member of his family. The mother was then only entitled to apply for supervised visits to the child.

When AF was approaching seven EM fled with him and claimed asylum in the United Kingdom. It appeared that if she was returned to Lebanon she would be at risk of imprisonment on a charge of kidnapping AF.

In R (Ullah) v Special Adjudicator (The Times June 18, 2004; [2004] 2 AC 323) the House had held, inter alia, that article 8 could in principle be engaged in relation to the removal of an individual from the United Kingdom.

His Lordship had stated in that case that it had to be shown that the person risked suffering a “flagrant denial” of the right and had approved the test used in Devaseelan v Secretary of State for the Home Department ([2003] Imm AR 1), that the right had to be “completely denied or nullified in the destination country”.

In so doing, his Lordship had been assimilating those expressions. The threshold test required a flagrant breach of the relevant right such as would completely deny or nullify the right in the destination country.

There was no predetermined model of family or family life to which article 8 had to be applied. The article required respect to be shown for the right to such family life as was or might be enjoyed by the particular applicant or applicants before the court, always bearing in mind the participation of other members who shared in the life of that family.

In the present case, the Court of Appeal appear to have held that EM’s article 8 right would be flagrantly violated if she were returned to Lebanon, but had felt unable to conclude that her right would be completely denied or nullified.

But as indicated above, those expressions did not propound different tests. In his Lordship’s opinion, on return to Lebanon both EM’s and AF’s right to respect for family life would not only be flagrantly violated but also completely denied and nullified.

In no meaningful sense could occasional supervised visits by EM to AF at a place other than her home be described as family life. The effect of return would be to destroy the family life of EM and AF as it was now lived.

Although emphasis had been laid in argument on the arbitrary and discriminatory character of the family law applied in Lebanon, which would fall foul of both article 8 and article 14, Lebanon was not a party to the Convention.

Its family law reflected a religious and cultural tradition which, in one form or another, was respected and observed throughout much of the world. The United Kingdom had no general mandate to impose its own values on other countries who did not share them.

His Lordship therefore questioned whether it would have availed EM to rely on the arbitrary and discriminatory character of the Lebanese custody regime had she not shown that return to Lebanon would flagrantly violate, or completely deny or nullify, her and AF’s right to respect for their family life together.

Lord Hope, Lady Hale, Lord Carswell and Lord Brown delivered concurring opinions.

Solicitors: J. M. Wilson, Birmingham; Treasury Solicitor; Dawson Cornwell; Freshfields Bruckhaus Deringer LLP.

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