Ss (Malaysia) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Moore-Bick,Lord Justice Rimer,Lord Justice Underhill |
| Judgment Date | 18 July 2013 |
| Neutral Citation | [2013] EWCA Civ 888 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C5/2013/3057 |
| Date | 18 July 2013 |
[2013] EWCA Civ 888
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(ASYLUM AND IMMIGRATION CHAMBER)
Upper Tribunal Judge Perkins
AA 08202 2011
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Moore-bick
Lord Justice Rimer
and
Lord Justice Underhill
Case No: C5/2013/3057
Miss Rebecca Chapman (instructed by Joint Council for the Welfare of Immigrants) for the appellant
Miss Lisa Busch (instructed by the Treasury Solicitor) for the respondent
Hearing date: 11th June 2013
Approved Judgment
This appeal raises some sensitive questions about a child's religious upbringing. The appellant is a national of Malaysia who was brought up as a Sikh but converted to Christianity as an adult and was received into the Roman Catholic church. In December 2006 she married another citizen of Malaysia who is of Nigerian origin. At the time of their marriage he was also a Roman Catholic, but in early 2010 he became interested in Islam and eventually indicated his intention to convert. The couple have one child, a boy called C, who was born in May 2006. He was baptised and received into the Roman Catholic church as a baby and has been brought up as a Catholic.
The appellant was very concerned at the prospect that her husband might convert to Islam and insist that C be brought up as a Muslim. She did not want that to happen, so in May 2010 she travelled to the United Kingdom with C to spend some time with her sister. She thought that would give her husband time to reflect on what he was doing. She did not tell him that she was planning to go abroad and not surprisingly, when he found that she had left taking their son with her, he contacted the police. By the end of 2010 the appellant's husband had become a convert to Islam.
The appellant entered this country on 14 th May 2010 and was granted 6 months' entry clearance. On 3 rd November 2010 she visited Paris briefly, returning the next day. She was then granted another 6 months' entry clearance. On 27 th May 2011 the appellant claimed asylum on the grounds that if she were returned to Malaysia she would be arrested by the authorities and would be at risk of ill-treatment from her husband, who would insist that C be brought up as a Muslim. On 23 rd June 2011 the Secretary of State rejected the appellant's claim on the grounds that her fears did not arise from any of the matters covered by the Refugee Convention and that she did not qualify for humanitarian protection.
The appellant's appeal to the First-tier Tribunal was heard by Designated Immigration Judge Digney on 2 nd November 2011. He accepted her account, but dismissed her appeal on the grounds that she was not at risk of ill-treatment at the hands either of the authorities or of her husband. He also held that removal would not disproportionately interfere with her rights under article 8 of the European Convention on Human Rights ("the Convention") and that it was in the best interests of C to be brought up by both his parents. He accepted that there was at least a reasonable degree of likelihood that, if he were returned to Malaysia, C would be brought up as a Muslim, but he held that any dispute over his religious upbringing should be decided by the courts of his own country.
The appellant was given permission to appeal to the Upper Tribunal where the matter came before Upper Tribunal Judge Perkins. The appellant relied heavily on the decision of the House of Lords in EM (Lebanon) v Secretary of State for the Home Department [2008] UKHL 64, [2009] 1 A.C. 1198, but the judge did not think that the facts of that case were at all comparable. He rejected the suggestion that Designated Immigration Judge Digney had failed to take proper account of the fact that any decision about C's religious upbringing would probably be made by a Syariah (i.e. Shari'a) court and that such courts show a predisposition in favour of Islam. Although he recognised that the family courts of this country would adopt a different approach, he did not think that it was necessary for that reason for him to take a course which would result in the imposition of the same values or remedies.
Upper Tribunal Judge Perkins accepted that the appellant's husband would wish to have C circumcised, but did not regard that as a reason for allowing him to remain in this country. He also noted that the appellant's concern arose from her fear that bringing up her child as a Muslim would be a precursor to separating him from her altogether. However, he found that she was not likely to be separated from her son in the short or medium term. The most likely outcome of the appellant's removal was that C would be allowed to live with his mother until he was about 15, but that she would not be allowed to bring him up as a nominal Christian. He recognised that that was an imperfect solution to a difficult problem, but in his view it was not one that involved unlawful interference with the rights of the appellant or C himself. He therefore held that there had been no error of law on the part of the First-tier Tribunal and dismissed the appeal.
The First-tier Tribunal found that the appellant would not be at risk of physical harm if she were returned to Malaysia and was unlikely to lose custody of C. Miss Chapman sought to challenge the latter finding by reference to the evidence of an expert in Malaysian law whose report had been put before the tribunal, but that report provided no more than isolated examples of instances in which disputes over custody had been decided adversely to the mother. It provided no sound basis for challenging the tribunal's finding. In those circumstances the appeal to this court ultimately turns on the significance to be attached to the fact that his father's...
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