EM (Lebanon) (FC) (Appellant) (FC) v Secretary of State for the Home Department (Respondent)
20. The appellant EM is a Lebanese national now aged 36. She came to this country on 30 December 2004 with her son AF, the second intervener, who was born on 16 July 1996 and is now aged 12. She claimed asylum.
21. The appellant is Muslim and married in Lebanon according to Muslim rites. Her evidence, accepted as true in these proceedings, is that during her marriage her husband subjected her to violence, beating her, trying to throw her off a balcony and trying, on one occasion at least, to strangle her. She had a mental breakdown. Her husband was imprisoned for theft from her fathers shop and, later, for failing to support AF. He ended her first pregnancy by hitting her on the stomach with a heavy vase, saying he did not want children. On the day AF was born he came to the hospital with his family to take the child away to Saudi Arabia, but was prevented from doing so. He has not seen AF since.
22. The appellant divorced her husband in Lebanon because of his violence. Under the prevailing law the father retained legal custody of AF, but the divorce court ruled that the child should remain in the appellants care until he reached the age of seven. Thereafter, Islamic law as applied in Lebanon entitled the father to require that physical custody should be transferred to himself or to a male member of his family.
23. After the divorce the appellant supported herself and AF by running a hairdressing salon. When AF was approaching the age of seven she began trying to leave the country to avoid having the child taken from her. After AFs birthday, she moved out of her parents house and lived in hiding to prevent his removal from her care. Her former husband issued proceedings in the Lebanese court. The police attended at her parents house and her former husband harassed them. The appellant and her child left Lebanon with the assistance of an agent, leaving the country on 20 December 2004. It appears that, if she returned to Lebanon, she would be at risk of imprisonment on a charge of kidnapping AF.
24. There was unchallenged evidence before the lower courts of Islamic law as applied in Lebanon in custody cases where (as in this case) the husband or both parties are Muslim. Even during the seven year period when a child is cared for by the mother, the father retains legal custody and may decide where the child lives and whether the child may travel with the mother. In the absence of consent by the father, the transfer to the father at the stipulated age is automatic: the court has no discretion in the matter and may not consider whether transfer is in the best interests of the child. As a result, women are often constrained to remain in abusive marriages for fear of losing their children. If the father were found to be unfit as a parent, the child would be passed to the paternal grandfather or some other member of the fathers extended family, not to the mother. The evidence was that in this situation the mother might, or might not, have contact with the child. The parent with physical custody cannot be compelled to send the child to the other parents home on visits, but if ordered by the court must bring the child to a place where the mother could see him or her. A custody hearing, if held in Lebanon, would not consider whether custody should remain with the mother but only the appropriateness of allowing the appellant to have access to AF during supervised visits.
25. The appellants application for asylum was refused by the Secretary of State in a letter of 21 February 2005, largely devoted to issues arising under the Refugee Convention. But the Secretary of State considered, and rejected, her claim under article 8 of the European Convention on Human Rights, ruling that she had not demonstrated a real risk of mistreatment such as to engage article 8. It was not accepted that she would be unable to obtain a reasonable, fair and impartial administration of her case in both the religious and civil courts.
26. The appellant exercised her right of appeal. In a decision dated 8 June 2005 the Immigration Judge (Mr C J Deavin) found that the appellant did not have a well-founded fear of persecution for a (Refugee) Convention reason, and so rejected her asylum claim. He also held (para 94) that she could not choose where she wished to lead her life, and that her removal would not engage article 8. In para 95 of his Decision he said:
It is likely, of course, that her child will be taken away from her, in accordance with the law of the land, but there is every likelihood that she will be allowed visitation rights. It is unrealistic on her part to expect to have the child entirely to herself.
27. On an application for reconsideration of this decision, a Senior Immigration Judge (Mr Andrew Jordan) thought it arguable that inadequate consideration had been given to whether removal would violate the appellants human rights and (perhaps) those of AF, if those were justiciable. He was also troubled at the prospect that the case had to be considered on the basis of the appellants rights, paying scant regard to those of AF and, in particular, his best interests. He acknowledged the difficulty of ruling on the best interests of AF in the absence of the father. He was also concerned about certain aspects of the asylum claim. He ordered reconsideration.
28. The matter then came before the Asylum and Immigration Tribunal (Mr C M G Ockelton, Deputy President, Mr N W Renton, Senior Immigration Judge, and Mr D R Humphrey, Immigration Judge) which gave its Determination and Reasons on 22 November 2005. The AIT first considered, and rejected, the appellants asylum claim. With reference to her claim under article 8, the AIT referred to recent decisions of the House in R (Ullah) v Special Adjudicator  UKHL 26,  2 AC 323 and R (Razgar) v Secretary of State for the Home Department  UKHL 27,  2 AC 368, which (para 15) established that 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". The tribunal continued (para 16):
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.
The tribunal refused leave to appeal against its decision but Buxton LJ granted it on one ground, later enlarged. The appellants claim to asylum lapsed.
29. The appellants appeal to the Court of Appeal came before Carnwath and Gage LJJ and Bodey J, each of whom gave judgments:  UKHRR 1. In his leading judgment, Carnwath LJ made detailed reference to four authorities in particular: Ullah and Razgar, mentioned above, In re J (A Child) (Custody Rights: Jurisdiction)  UKHL 40,  1 AC 80, and Marckx v Belgium (1979) 2 EHRR 330. The critical divide between the parties was as to the appropriate test in a foreign case under article 8 and its application to the facts of the appellants case. For the appellant Ms Webber contended that her right to have her claim to custody reviewed on a non-discriminatory basis would be completely denied or nullified if she and AF were returned to Lebanon. Ms Greaney, for the Secretary of State, criticised this as too narrow a formulation of the appellants right. Article 8 protected the right to family life. Although the appellant would lose custody of her son, this did not establish that she would lose all contact with him. Thus her enjoyment of family life with her child, though severely restricted, would not be completely denied or nullified. Carnwath LJ said (paras 36-40):
36. With considerable misgivings, I am forced to the conclusion that Miss Greaney is correct. My misgivings are due principally to the natural reluctance of an English judge to send a child back to a legal system where a crucial custody issue will be decided without necessary reference to his welfare. That would be an overriding consideration in other jurisdictions, but it is not suggested that it can be determinative in the context of asylum law.
37. In addition I have not found it easy to give effect to the different expressions which have been used to define the test. If complete denial or nullification is the test, I agree with Miss Greaneys analysis. The right in question is the right protected by article 8, of which custody is but one important aspect. On the evidence her article 8 right would not be completely denied.
38. However, one finds many other formulations in the passages of high authority cited above: flagrant denial', gross violation', flagrant violation of the very essence of the right', flagrant, gross or fundamental breach', gross invasion of [her] most fundamental human rights, particularly flagrant breaches. To my mind there is a difference in ordinary language between complete denial of the rights guaranteed by article 8, and flagrant breach or gross invasion of those rights. In short, the former is quantitative; the latter qualitative.
39. If one or more of the latter expressions provided the test, I would find it difficult to think they are not satisfied in this case. This is not a case where the answer could realistically be affected by representations from the receiving state (a factor mentioned by Lord Bingham of Cornhill in Ullah, para 24). The parent/child relationship is a fundamental aspect of the rights guaranteed by article 8, perhaps the most fundamental; in Lord Steyns words, it goes to the very essence of the right to family life. The ability to participate in that relationship on an equal basis to the father is similarly fundamental to the rights guaranteed by article 14. Those rights are also recognised as fundamental by the wider international community. The facts disclose the almost certain prospect of an open breach or violation of those rights. A breach which is open, unmitigated, and in Convention terms indefensible can fairly be described as flagrant in the ordinary use of that word.
40. However, I am persuaded that that is not the right approach. The word flagrant was first used in Soering v United Kingdom (1989) 11 EHRR 439 not, I think, as a definitive test, but to illustrate the extreme circumstances which would be needed to bring the Convention into play in a foreign case. As Lord Bingham of Cornhill pointed out in Ullah, the Strasbourg case-law reveals no examples of cases which have been held to meet that test. The different expressions used in the domestic cases have been used for a similar purpose. Linguistic analysis and comparison is unlikely to be helpful. Lord Bingham of Cornhills adoption of the Devaseelan formula, with the agreement of the whole House, was clearly intended to provide a single authoritative approach. Applying that test, I conclude that the appeal on this central issue must fail.
The appellants appeal under article 14 of the European Convention was also rejected.
30. Gage LJ reached the same conclusion, also with misgiving. He noted (para 54) that the well-established principle of domestic law which requires the welfare of the child to be treated as paramount was agreed to be irrelevant, and continued:
55. For my part I have not found this an easy case. On the one hand to deny a mother the right to care for her child seems totally wrong. Judge Martens in a different context described the right to care for your own children as a fundamental element of an elementary right (see Gül v Switzerland (1996) 22 EHRR 93). To deny this right offends against all principles of fairness to a party involved in litigation over the custody of her child or children. It will undoubtedly place a substantial obstacle in the way of this appellant maintaining and fostering her relationship with her son. It is an entirely arbitrary rule without any apparent justification.
56. On the other hand I see the force of the submission made on behalf of the respondent that not all the appellants rights as a mother will be denied. She will have rights of visitation and will not lose contact with her son. In that sense her rights cannot be said to be completely nullified.
57. In my judgment this is a case, as envisaged by Lord Carswell in Ullah, where the concept of flagrant breach or violation is not easy to apply. Not without some hesitation, I have concluded that the risk of such breaches of her human rights as may occur in respect of the appellants right to care for her son are not sufficient to be categorised as flagrant. In reaching this conclusion, in my view, the appellants rights of visitation/contact must be taken into account and set against the denial of the right to custody/residence of her child. It is important to note that we are considering her rights and not those of her son. There is no reason to suppose that the Shari'a Court will prevent the appellant from seeing her son. The form and nature of visitation rights remain undefined but in my judgment it must be supposed that the appellant will continue to be permitted to see her son. In that way her ability to maintain her relationship with him will still exist, albeit on a less intense level than before. In the circumstances I would hold, as the AIT held, that the risk of breaches of her article 8 and 14 rights in all the circumstances are not such as can be said to be flagrant. For the avoidance of doubt I would also hold that the discrimination against her on grounds of gender in the Shari'a Court whether considered as a breach of her article 8 rights or separately as a breach of article 14 rights, is not sufficient to tip the balance so as to cross the high threshold required.
58. For these reasons and the reasons given by Carnwath LJ, with which I agree, I would dismiss this appeal, and dispose of the applications as he proposes. This not an outcome for which I have any enthusiasm.
31. Acknowledging the right to care for ones child as a fundamental element of an elementary human right (as quoted by Baroness Hale of Richmond, in Razgar  2 AC 368, para 53), Bodey J regarded the anticipated interference with the appellants right to respect for her family life to be flagrant, both by virtue of article 8 read alone and especially when read with article 14 (paras 66, 76). But applying what he understood to be the correct test, he concluded with express misgivings that the appellant could not cross the threshold to obtain relief (paras 66, 71, 76, 80-82).
32. In R (Ullah) v Special Adjudicator, Do v Immigration Appeal Tribunal  2 AC 323 the appellants sought to resist removal to Pakistan and Vietnam respectively on the ground that they would be unable to practise their religion in those countries as guaranteed by article 9 of the European Convention. Thus, as in the present case, the appellants claims rested not on the conduct of the British authorities (save in removing her) but on the expected consequences in the foreign country. Theirs were foreign cases in the same sense as the appellants. The question in the appeal was whether removal could be resisted in reliance on any article of the Convention other than article 3. That removal could be resisted in a foreign case engaging article 3 was clearly established by well-known authority, notably Soering v United Kingdom (1989) 11 EHRR 439 and Chahal v United Kingdom (1996) 23 EHRR 413. But could other articles of the Convention be relied on? The Court of Appeal  EWCA Civ 1856,  1 WLR 770, para 64, had held that where the Convention was invoked on the sole ground of the treatment to which an alien, refused the right to enter this country or remain here, was likely to be subjected by the receiving state, and that treatment was not sufficiently severe to engage article 3, the English court was not required to recognise that any other article of the Convention was or might be engaged. The decision of the Secretary of State in such cases was not subject to the constraints of the Convention.
33. Although separate opinions were delivered, the members of the House were at one in giving two answers to the question. First, they held that articles other than article 3, including article 8, could in principle be engaged in relation to the removal of an individual from this country: paras 21, 35, 39 - 49, 52, 53, 62, 67. Secondly, they held that the threshold of success in such a case was a very high one. In para 24 of my opinion, to which much argument was addressed in the present case, in the courts below and in argument before the House, I expressed myself as follows:
24. While the Strasbourg jurisprudence does not preclude reliance on articles other than article 3 as a ground for existing extradition or expulsion, it makes it quite clear that successful reliance demands presentation of a very strong case. In relation to article 3, it is necessary to show strong grounds for believing that the person, if returned, faces a real risk of being subjected to torture or to inhuman or degrading treatment or punishment: Soering, para 91; Cruz Varas, para 69; Vlvarajah, para 103. In Dehwari, para 61 (see para 15 above) the Commission doubted whether a real risk was enough to resist removal under article 2, suggesting that the loss of life must be shown to be a near certainty'. Where reliance is placed on article 6 it must be shown that a person has suffered or risks suffering a flagrant denial of a fair trial in the receiving state: Soering, para 113 (see para 10 above); Drodz, para 110; Einhorn, para 32; Razaghi v Sweden; Tomic v United Kingdom. Successful reliance on article 5 would have to meet no less exacting a test. The lack of success of applicants relying on articles 2, 5 and 6 before the Strasbourg court highlights the difficulty of meeting the stringent test which that court imposes. This difficulty will not be less where reliance is placed on articles such as 8 or 9, which provide for the striking of a balance between the right of the individual and the wider interests of the community even in a case where a serious interference is shown. This is not a balance which the Strasbourg court ought ordinarily to strike in the first instance, nor is it a balance which that court is well placed to assess in the absence of representations by the receiving state whose laws, institutions or practices are the subject of criticism. On the other hand, the removing state will always have what will usually be strong grounds for justifying its own conduct: the great importance of operating firm and orderly immigration control in an expulsion case; the great desirability of honouring extradition treaties made with other states. The correct approach in cases involving qualified rights such as those under articles 8 and 9 is in my opinion that indicated by the Immigration Appeal Tribunal (Mr C M G Ockelton, deputy president, Mr Allen and Mr Moulden) in Devaseelan v Secretary of State for the Home Department  Imm A R 1, para 111:
The reason why flagrant denial or gross violation is to be taken into account is that it is only in such a case - where the right will be completely denied or nullified in the destination country - that it can be said that removal will breach the treaty obligations of the signatory state however those obligations might be interpreted or whatever might be said by or on behalf of the destination state.
Lord Steyn (para 50) said:
It will be apparent from the review of Strasbourg jurisprudence that, where other articles may become engaged, a high threshold test will always have to be satisfied. It will be necessary to establish at least a real risk of a flagrant violation of the very essence of the right before other articles could become engaged.
Lord Walker of Gestingthorpe agreed with my opinion (para 52) and Baroness Hale of Richmond with those of myself, Lord Steyn and Lord Carswell, while deferring detailed analysis of article 8 to R (Razgar) v Secretary of State for the Home Department  2 AC 368, which was heard by the same committee immediately following Ullah. Lord Carswell, in paras 69-70 of his opinion, said:
69. The adjective flagrant has been repeated in many statements where the court has kept open the possibility of engagement of articles of the Convention other than article 3, a number of which are enumerated in para 24 of the opinion of Lord Bingham of Cornhill in the present appeal. The concept of a flagrant breach or violation may not always be easy for domestic courts to apply - one is put in mind of the difficulties which they have had in applying that of gross negligence - but it seems to me that it was well expressed by the Immigration Appeal Tribunal in Devaseelan v Secretary of State for the Home Department  Imm AR 1, 34, para 111, when it applied the criterion that the right in question would be completely denied or nullified in the destination country. This would harmonise with the concept of a fundamental breach, with which courts in this jurisdiction are familiar.
70. If it could be said that in principle article 9 is capable of engagement, it does not seem to me that the case of either appellant comes within the possible parameters of a flagrant, gross or fundamental breach of that article such as to amount to a denial or nullification of the rights conferred by it. I accordingly agree that both appeals should be dismissed.
The difficulty of resisting removal in reliance on article 9 was evidenced by the rejection of the appellants claims on the facts. In Razgar the answers given in Ullah were treated as laying down the relevant principles (paras 2, 26, 32, 37, 41-42, 66, 72) although opinion was divided on the application of those principles to the facts of that case.
The threshold test
34. It was not submitted in argument that the threshold test laid down in Ullah misrepresented or understated the effect of the Strasbourg authority as it stood then or stands now. It is true, as Carnwath LJ pointed out in the Court of Appeal (para 38), that different expressions have at different times been used to describe the test, but these have been used to describe the same test, not to lay down a different test. Nor, as I would understand the joint partly dissenting opinion of Judges Bratza, Bonello and Hedigan in Mamatkulov and Askarov v Turkey (2005) 41 EHRR 494, 537, para OIII 14, did they envisage a different test when they said, with reference to article 6 (omitting footnotes):
While the court has not to date found that the expulsion or extradition of an individual violated, or would if carried out violate, article 6 of the Convention, it has on frequent occasions held that such a possibility cannot be excluded where the person being expelled has suffered or risks suffering a flagrant denial of a fair trial in the receiving country. What constitutes a flagrant denial of justice has not been fully explained in the courts jurisprudence but the use of the adjective is clearly intended to impose a stringent test of unfairness going beyond mere irregularities or lack of safeguards in the trial procedures such as might result in a breach of article 6 if occurring within the Contracting State itself. As the court has emphasised, article 1 cannot be read as justifying a general principle to the effect that a Contracting State may not surrender an individual unless satisfied that the conditions awaiting him in the country of destination are in full accord with each of the safeguards of the Convention. 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.
35. In adopting and endorsing the test formulated by the AIT in Devaseelan I did not in para 24 of my opinion in Ullah  2 AC 323 understand that tribunal to be distinguishing a flagrant denial or gross violation of a right from a complete denial or nullification of it but rather to be assimilating those expressions. This was how the point had been put to the House by the Attorney General for the Secretary of State, as is evidenced from the report of his argument (p 337D):
If other articles can be engaged the threshold test will require a flagrant breach of the relevant right, such as will completely deny or nullify the right in the destination country: see Devaseelan v Secretary of State for the Home Department  Imm AR 1. A serious or discriminatory interference with the right protected would be insufficient.
It is difficult, with respect, to see how the point could be put more clearly, and any attempt at paraphrase runs the risk of causing confusion.
The right to respect for family life