EM (Lebanon) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Gage,Mr Justice Bodey |
| Judgment Date | 21 November 2006 |
| Neutral Citation | [2006] EWCA Civ 1531 |
| Docket Number | Case No: C5/2006/0410 |
| Court | Court of Appeal (Civil Division) |
| Date | 21 November 2006 |
[2006] EWCA Civ 1531
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM The Immigration Appeal Tribunal
Mr C.M.G. Ockelton (Deputy President)
Mr N.W. Renton (Senior Immigration Judge)
Mr D.R. Humphrey (Immigration Judge)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Carnwath
Lord Justice Gage and
Mr Justice Bodey
Case No: C5/2006/0410
Case No. AS/04832/2005
Frances Webber (instructed by Messrs. J.M. Wilson) for the Appellant
Nicola Greaney (instructed by Treasury Solicitor) for the Respondent
Background
The claimant, who is now 34, is a citizen of the Lebanon. She arrived in this country in December 2004 with her son, born in July 1996. Following refusal of her claim for asylum, directions for removal were given in February 2005. She appealed on both asylum and human rights grounds. The appeal was rejected on 13 th June 2005 by a single immigration judge (Mr C Deavin) , and that decision was confirmed, following an order for reconsideration, on 22 nd November 2005 by a panel chaired by Mr Mark Ockelton, Deputy President ("the Panel") . Permission to appeal was granted by Buxton LJ on one ground only (Article 8) . Applications to renew on two other grounds (Article 14 and Refugee Convention) are also before us.
The AIT decision
The AIT Panel were willing to take her personal evidence "at its highest". They summarised her "central assertions":
"She says that her husband married her only because of her father's money and that he did not want children. Their son was born in 1996, and her husband sought to abduct him to Saudi Arabia immediately after the birth. He failed in that endeavour and subsequently subjected her to violence of the most extreme kind. She obtained a divorce from the Islamic court and was awarded custody of her son until his seventh birthday. She says (and this is supported by the report on Islamic law in Lebanon) that after that date she would lose custody: her husband or his relatives will have a right to it. Because she did not want to be bound by that rule of law, she arranged to leave Lebanon on false documents, taking her son with her. She says that she is, as a result, sought for the offence of kidnapping and that she is accordingly at risk of ill-treatment in prison and, she suggests, death. She further claims that she would be the subject of discrimination in legal proceedings for custody. She further claims that her separation of her son from her, albeit in accordance with Islamic law as applied in Lebanon, is contrary to her human rights." (para 3)
They noted that the son had made no separate claim, it being accepted that his claim was dependent on that of his mother, and that the Secretary of State would not remove one of them to Lebanon without the other.
The contention that, if returned to the Lebanon, she would automatically lose custody of her child, was not in dispute. The only relevant evidence was in the form of a written report by Kristine Uhlman, an expert in Islamic law and customs relating to marriage, divorce and child custody. She confirmed that, in accordance with the principle of Islamic law that "the male is seen as the leader of the family unit", legal custody of a child lies with the father. In recognition of "the infant's need for female care" physical custody is given to the mother until the age of custodial transfer, generally set at the age of seven, but thereafter reverts automatically to the father.
It was clear from her evidence that in the Lebanese courts there would be no room for the exercise of judicial discretion in respect of custody:
"The Lebanese judiciary is generally impartial and independent except in the application of Shari'a law as it relates to the custody of the child after the age of custodial transfer – it is predetermined that in the absence of the approval of the child's father to allow the mother to retain custody, custody is transferred to the father or the father's extended family at the age of custodial transfer.
A mother generally has a right to physical, not legal, custody of her child until the child reaches the age of custodial transfer, at which time the child is returned to the physical custody of the child's father or the father's family. The father always retains legal custody and the right to determine where the child will live and whether the mother may travel with the child. Under Shari'a, a father is the natural guardian (al waley) of his children's persons and property, and some jurisdictions may also give the child's paternal grandfather joint guardianship. In all instances, a child's paternal grandfather is his or her natural guardian after the father. Under the law of Lebanon, guardianship passes to the next relative on the father's side if the father and paternal grandfather are unable to act as guardian….
… even if the courts were to find the father unfit as a parent due to past finding of his unacceptable moral standards, the child would be passed to the paternal grandfather or male member of the extended paternal family…"
Of the claimant's prospects of maintaining contact with her child if returned to the Lebanon her evidence was less clearcut:
"If (the claimant) were to return to Lebanon, the child's father, paternal grandfather, or other male member of the extended paternal family would retain legal custody of the child and (the claimant) may, or may not, be allowed visitation. While the parent with physical custody cannot be compelled to send the child to the other parent's residence for visits, he must bring the child to a place where the other parent can see the child if ordered by the court… If a custody hearing were to be held in Lebanon it would not address custody but would most likely be to determine the appropriateness of allowing (the claimant) access to the child during supervised visits, under no circumstances would custody remain with the mother…."
6. The single judge felt able to infer that "there is every likelihood that she will be allowed visitation rights". The basis for this is not clear to me, but it is unnecessary to explore the point. The Panel simply observed:
"We cannot see that it would be right to say on the basis of the information before us that the Appellant would not see her child again."
For the purposes of the present appeal, as I understand it, Miss Webber accepts that the claimant has not established to the necessary standard that she would not obtain visitation rights. Accordingly, her case stands or falls on the apparently certain prospect of loss of custody of her child.
The Panel dealt shortly with the claim under the Refugee Convention, which they summarised as being:
"… to the effect that any ill-treatment of the Appellant on her return to Lebanon would be for the Convention reason of membership of a particular social group, that is to say women in Lebanon. This argument is based on selected sentences from a very large bundle, which are said to establish that "there is clearly no regard for a woman's rights in Lebanon"."
In the Panel's view the country evidence came "nowhere near establishing that proposition", and was "a world away" from the facts in Shah and Islam [1999] 2 AC 629 (in which the House of Lords upheld the asylum claims of two women, on the grounds of lack of effective legal protection against marital violence in Pakistan) :
"Muslims in Lebanon are governed, in family matters, by Muslim law. The fact that the rules of Muslim law operate in a way which some Western societies might regard as discriminatory does not show that all women are deprived of standing before the law. On the contrary: the Appellant's own claimed history demonstrates that she has been able to obtain relief from the courts."
As to the Human Rights claim, they noted that this rested on Article 8 alone. They observed:
"… it is not easy to see that this Tribunal should take it upon itself to pass judgment on the general law of another country save in exceptional circumstances."
Having noted that the complaint was not of any action or inaction by the UK Government, but of the possible actions of the Lebanese authorities if she were returned, they continued:
"11. The law in these circumstances is well established. It is to be found in the decisions of the House of Lords in Razgar, [2004] UKHL 27, and Ullah [2004] UKHL 26, [2004] Imm AR 419. The Appellant can only succeed if she can show that the country to which she returns has a flagrant disregard for the rights protected by Article 8.
12. On the material before us, that is clearly not so. There is a judicial system, to which the Appellant has access. The system of family law to which she, by her religion, is subject, is one which in this respect she does not like: but that does not permit her to choose the law of another country, nor does it permit us to say that it is a system to which nobody should be subject. As a result, we cannot say that the removal of the Appellant and her son to Lebanon would itself constitute a breach of the rights they have under Article 8 while they remain in the jurisdiction of this country. After their removal, they simply have no such rights: they are subject to the law of their own country, which is not a party to the European Convention on Human Rights."
No specific case having been made under Article 2 or 3, they dealt shortly with the suggested risks of maltreatment by the husband and of prosecution for kidnapping:
"There is no reason to suppose that the Appellant is not entitled to the protection of the law in respect of any attacks by...
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