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

JurisdictionUK Non-devolved
JudgeLORD BROWN OF EATON-UNDER-HEYWOOD,LORD BINGHAM OF CORNHILL,BARONESS HALE OF RICHMOND,LORD CARSWELL,LORD HOPE OF CRAIGHEAD
Judgment Date22 October 2008
Neutral Citation[2008] UKHL 64
Date22 October 2008
CourtHouse of Lords
EM (Lebanon)(FC)
(Appellant)(FC)
and
Secretary of State for the Home Department
(Respondent)

[2008] UKHL 64

Appellate Committee

Lord Hope of Craighead

Lord Bingham of Cornhill

Baroness Hale of Richmond

Lord Carswell

Lord Brown of Eaton-under-Heywood

HOUSE OF LORDS

Appellant:

Frances Webber

Stephanie Harrison

(Instructed by J M Wilson Solicitors)

First Intervener (ALF)

Henry Setright QC

Teertha Gupta

Margaret Phelan

(Instructed by Dawson Cornwell)

Respondent:

Monica Carss-Frisk QC

Nicola Greaney

(Instructed by Treasury Solicitors)

Second Intervener (Justice and Liberty)

Rabinder Singh QC

Raza Husain

(Instructed by Freshfields Bruckhaus Deringer LLP)

LORD HOPE OF CRAIGHEAD

My Lords,

1

After the conclusion of the hearing, and following deliberation, the parties were informed that the appeal would be allowed for reasons to be given later. The following are my reasons for inviting the House to allow the appeal, to set aside the orders below and to quash the Secretary of State's decision that the appellant and her son must be returned to Lebanon.

2

The case for allowing the appellant and her son to remain in this country on humanitarian grounds is compelling. That is shown by the facts that my noble and learned friend Lord Bingham of Cornhill has described. But the appellant does not wish to rely on the Secretary of State's discretion. She claims that she has a right to remain here under article 8 of the European Convention on Human Rights read in conjunction with article 14. So the question is whether she has established that she and her son would run a real risk of a flagrant denial of the right to respect for their family life guaranteed to her by those articles if they were to be removed from this country to Lebanon.

3

I take the wording of the test to be applied to determine whether there would be a flagrant denial of this right from what Judges Bratza, Bonello and Hedigan said in their joint partly dissenting opinion in Mamatkulov and Askarov v Turkey (2005) 41 EHRR 494, 537-539. That was a case where political dissidents claimed that they would not receive a fair trial if they were extradited to Uzbekistan because, among other things, torture was routinely used to secure guilty verdicts and because suspects were frequently denied access to a lawyer. Their case was that they ran a real risk of a flagrant denial of justice. In para O-III14 the judges said:

"In our view, what the word 'flagrant' is intended to convey is a breach of the principles of fair trial guaranteed by article 6 which is so fundamental as to amount to a nullification, or destruction of the very essence, of the right guaranteed by that article."

In paras O-III17 and O-III19 they used the expression "a real risk" to describe the standard which the evidence has to achieve in order to show that the expulsion or extradition of the individual would, if carried out, violate the article.

4

I have gone directly to what those judges said about the test in Mamatkulov rather than to what was said in R (Ullah) v Special Adjudicator, Do v Immigration Appeal Tribunal [2004] 2 AC 323 and R (Razgar) v Secretary of State for the Home Department [2004] 2 AC 368 for several reasons. First, their description of it is the most up to date guidance that is available from Strasbourg. Second, it combines in a simple formula the approach described in Devaseelan v Secretary of State for the Home Department [2003] Imm AR 1, para 111 referred to with approval by Lord Bingham of Cornhill and Lord Carswell in paras 24 and 69 of Ullah with Lord Steyn's use of the expression "the very essence of the right" in para 50 of Ullah. And, third, it shows that Carnwath LJ in the Court of Appeal [2007] UKHRR 1, paras 37-38 was, with great respect, wrong to regard words such as "complete denial" or "nullification" on the one hand and "flagrant breach" or "gross invasion" on the other as indicating different tests. Attempts to explain or analyse the formula should be resisted, in the absence of further guidance from Strasbourg. There is only one test, although I think that how it is to be applied in an article 8 read with article 14 case needs some explanation. The use by the partly dissenting judges of the expression "a real risk" is also significant. It shows that what was said about the standard of proof in the context of article 3 in Soering v United Kingdom (1989) 11 EHRR 439, para 91, applies to cases such as this where the rights in issue are among the qualified rights to be found elsewhere in the Convention.

5

There is however one aspect of this case which I have found particularly difficult. The appellant came to this country as a fugitive from Shari'a law. Her son had reached the age of seven when, under the system that regulates the custody of a child of that age under Shari'a law in Lebanon, his physical custody would pass by force of law to his father or another male member of his family. Any attempt by her to retain custody of him there would be bound to fail. This is simply because the law dictates that a mother has no right to the custody of her child after that age. She may or may not be allowed what has been described as visitation. That would give her access to her son during supervised visits to a place where she could see him. But under no circumstances would his custody remain with her. The close relationship that exists between mother and child up to the age of custodial transfer cannot survive under that system of law where, as in this case, the parents of the child are no longer living together when the child reaches that age. There is a real risk in all these cases that the very essence of the family life that mother and child have shared together up to that date will be destroyed or nullified.

6

This system was described by counsel during the argument as arbitrary and discriminatory. So it is, if it is to be measured by the human rights standards that we are obliged to apply by the Convention. The mutual enjoyment by parent and child of each other's company is a fundamental element of family life. Under our law non-discrimination is a core principle for the protection of human rights. The fact is however that Shari'a law as it is applied in Lebanon was created by and for men in a male dominated society. The place of the mother in the life of a child under that system is quite different under that law from that which is guaranteed in the Contracting States by article 8 of the Convention read in conjunction with article 14. There is no place in it for equal rights between men and women. It is, as Lord Bingham points out, the product of a religious and cultural tradition that is respected and observed throughout much of the world. But by our standards the system is arbitrary because the law permits of no exceptions to its application, however strong the objections may be on the facts of any given case. It is discriminatory too because it denies women custody of their children after they have reached the age of custodial transfer simply because they are women. That is why the appellant removed her child from that system of law and sought protection against its effects in this country.

7

It seems to me that the Strasbourg court's jurisprudence indicates that, in the absence of very exceptional circumstances, aliens cannot claim any entitlement under the Convention to remain here to escape from the discriminatory effects of the system of family law in their country of origin. There is a close analogy between this case and N v United Kingdom (Application No 26565/05) ( unreported) 27 May 2008 which followed the decision of this House in N v Secretary of State for the Home Department (Terrence Higgins Trust intervening) [2005] 2 AC 296.

8

In N's case the appellant was found after her arrival in this country from Uganda to have an AIDS-defining illness for which she was still receiving beneficial medical treatment when the appeal was heard. She claimed that the treatment that she needed would not be available to her in Uganda and she would die within a matter of months if she were to be returned to that country, whereas she could expect to live for decades if she were to remain in this country. That being so, it was argued, the United Kingdom would be in breach of its obligations under article 3 of the Convention if she were to be returned to Uganda. As Lord Nicholls of Birkenhead said in para 1, the appeal raised a question of profound importance about the obligations of the United Kingdom in respect of the expulsion of people with HIV/AIDS. The cruel reality was that if the appellant were to be returned to Uganda her ability to obtain the necessary medication was at best problematic. In para 4 Lord Nicholls described her position as similar to having a life-support machine switched off. Yet the House, with considerable misgivings in what was plainly a very sad case, dismissed her appeal.

9

Following that decision the appellant lodged an application against the United Kingdom in Strasbourg. The Grand Chamber declared her application inadmissible. In para 42 of the decision it said:

"Aliens who are subject to expulsion cannot in principle claim any entitlement to remain in the territory of a Contracting State in order to continue to benefit from medical, social or other forms of assistance and services provided by the expelling State. The fact that the applicant's circumstances, including his life expectancy, would be significantly reduced if he were to be removed from the Contracting State is not sufficient in itself to give rise to breach of article 3. The decision to remove an alien who is suffering from a serious mental or physical illness to a country where the facilities for the treatment of that illness are inferior to those available in the Contracting State may raise an...

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