Judgments - EM (Lebanon) (FC) (Appellant) (FC) v Secretary of State for the Home Department (Respondent)

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36.    The importance of the right to respect for family life has been recognised in Strasbourg and domestic jurisprudence. The Strasbourg case law has recognised the bond which arises at birth between child and parent (Ahmut v Netherlands (1996) 24 EHRR 62, para 60) and reference has been repeatedly made to “the mutual enjoyment by parent and child of each other’s company” as “a fundamental element of family life” (McMichael v United Kingdom (1995) 20 EHRR 205, para 86; Johansen v Norway (1996) 23 EHRR 33, para 52; Bronda v Italy (1998) 33 EHRR 81, para 51; P, C and S v United Kingdom (2002) 35 EHRR 1075, para 113). Judge Martens, in a dissenting judgment, has described the right to care for one’s own children as “a fundamental element of an elementary human right” (Gül v Switzerland (1996) 22 EHRR 93, 120, para 12). More general statements are found in the domestic case law. In M v Secretary of State for Work and Pensions [2006] UKHL 11, [2006] 2 AC 91, para 5, reference was made to “the love, trust, confidence, mutual dependence and unconstrained social intercourse which are the essence of family life". In Huang v Secretary of State for the Home Department [2007] UKHL 11, [2007] 2 AC 167, para 18, it was said:

“Human beings are social animals. They depend on others. Their family, or extended family, is the group on which many people most heavily depend, socially, emotionally and often financially. There comes a point at which, for some, prolonged and unavoidable separation from this group seriously inhibits their ability to live full and fulfilling lives".

My noble and learned friend Baroness Hale has said (In re B (Children) (Care Proceedings: Standard of Proof) (CAFCASS intervening) [2008] UKHL 35, [2008] 3 WLR 1, para 20) that “Taking a child away from her family is a momentous step, not only for her, but for her whole family …”

37.    Families differ widely, in their composition and in the mutual relations which exist between the members, and marked changes are likely to occur over time within the same family. Thus there is no pre-determined model of family or family life to which article 8 must be applied. The article requires respect to be shown for the right to such family life as is or may be enjoyed by the particular applicant or applicants before the court, always bearing in mind (since any family must have at least two members, and may have many more) the participation of other members who share in the life of that family. In this context, as in most Convention contexts, the facts of the particular case are crucial.

38.    The question to be determined in this appeal is accordingly this: whether, on the particular facts of this case, the removal of the appellant and AF to Lebanon will so flagrantly violate her, his and their article 8 rights as to completely deny or nullify those rights there. This is, as Ms Carss-Frisk QC for the Secretary of State emphasised, a very hard test to satisfy, never found to be satisfied in respect of any of the qualified Convention rights in any reported Strasbourg decision.

The present case

39.    It seems likely that, following her marriage, the appellant’s immediate family consisted of herself and her husband. It would have been the life of that family which would have fallen within the purview of article 8 had the Convention applied in Lebanon, which it did (and does) not. But there has been no familial contact between the appellant and her husband since the birth of AF, and AF has never seen his father since the day he was born. Nor has he had any contact with any of his father’s relatives. Thus, realistically, the only family which exists now or has existed for the last five years at least consists of the appellant and AF. It is the life of that family which is in issue: Beoku-Betts v Secretary of State for the Home Department [2008] UKHL 39, [2008] 3 WLR 166.

40.    It is no doubt a feature of their family life together that the appellant renders for AF the sort of services which a mother ordinarily does render for a growing adolescent. But it would be wrong to regard the relationship between the appellant and AF as simply one in which the mother renders services for the son. The evidence makes plain that the bond between the two is one of deep love and mutual dependence. It cannot be replaced by a new relationship between AF and a father who has inflicted physical violence and psychological injury on the mother, who has been sent to prison for failing to support him, whom he has never consciously seen and towards whom AF understandably feels strongly antagonistic. Nor can it be replaced by a new relationship with an unknown member or members of the father’s family.

41.    Two members of the Court of Appeal, although taking no account of AF’s right, appear to have held that the appellant’s article 8 right would be flagrantly violated if she were returned to Lebanon, but felt unable to conclude that her right would be completely denied or nullified. As indicated above, these expressions do not propound different tests. But it is in my opinion clear that on return to Lebanon both the appellant’s and AF’s right to respect for their family life would not only be flagrantly violated but would also be completely denied and nullified. In no meaningful sense could occasional supervised visits by the appellant to AF at a place other than her home, even if ordered (and there is no guarantee that they would be ordered), be described as family life. The effect of return would be to destroy the family life of the appellant and AF as it is now lived.

42.    Considerable emphasis was laid in argument for the appellant and the second interveners on the arbitrary and discriminatory character of the family law applied in Lebanon, and it is plain that this would fall foul of both article 8 and article 14. But Lebanon is not a party to the European Convention, and this court has no standing to enforce observance of other international instruments to which Lebanon is party. Its family law reflects a religious and cultural tradition which, in one form or another, is respected and observed throughout much of the world. This country has no general mandate to impose its own values on other countries who do not share them. I would therefore question whether it would avail the appellant to rely on the arbitrary and discriminatory character of the Lebanese custody regime had she not shown, as in my opinion she has, that return to Lebanon would flagrantly violate, or completely deny and nullify, her and AF’s right to respect for their family life together.

43.    The Court of Appeal and the courts below were disadvantaged by the absence of representations on behalf of AF. The hearing before the House has underscored the importance of ascertaining and communicating to the court the views of a child such as AF. In the great majority of cases the interests of the child, although calling for separate consideration, are unlikely to differ from those of an applicant parent. If there is a genuine conflict, separate representation may be called for, but advisers should not be astute to detect a conflict where the interests of parent and child are essentially congruent.

44.    For these reasons I would allow the appeal, set aside the orders below and quash the Secretary of State’s decision. The appellant and the Secretary of State are invited to make written submissions on costs within 14 days.

BARONESS HALE OF RICHMOND

My Lords,

45.  As to the test to be applied in these cases, I have nothing to add to what is said by my noble and learned friend, Lord Bingham of Cornhill, in paragraph 34 of his opinion. In the words of Judges Bratza, Bonello and Hedigan in Mamatkulov and Askarov v Turkey (2005) 41 EHRR 494, 537, para OIII 14, “. . . what the word ‘flagrant’ is intended to convey is a breach . . . which is so fundamental as to amount to a nullification, or destruction of the very essence, of the right guaranteed . . . “ So far as we are aware, Strasbourg has never yet found that test to be satisfied in a case where the breach of article 8 would take place in the foreign country to which a family is to be expelled, rather than as the result of the expulsion of one of its members (as in, eg, Al-Nashif v Bulgaria (2002) 36 EHRR 655). The possibility is, however, acknowledged, both in Bensaid v United Kingdom (2001) 33 EHRR 205, 219-220, paras 46-49, and in the dissenting opinion of Judges Tulkens, Bonello and Spielmann in N v United Kingdom (Application No 16565/05) (unreported) 27 May 2008, p 31, para 26.

46.  In this case, the only family life which this child has ever known is with his mother. If he were obliged to return to a country where he would inevitably be removed from her care, with only the possibility of supervised visits, then the very essence of his right to respect for his family life would be destroyed. And it would be destroyed for reasons which could never be justified under article 8(2) because they are purely arbitrary and pay no regard to his interests. The violation of his right is in my view of greater weight than the violation of his mother’s right. Children need to be brought up in a stable and loving home, preferably by parents who are committed to their interests. Disrupting such a home risks causing lasting damage to their development, damage which is different in kind from the damage done to a parent by the removal of her child, terrible though that can be.

47.  That is what makes this case so different from the general run of child abduction cases. In the general run of such cases, a family life of some sort has been established in the country of origin and it is the abduction rather than the return which has interfered with that family life. In this case there was no family life established in the Lebanon between this child and his father or his father’s family. A family lawyer in this country might raise an eyebrow at the fact that the mother was able to keep her child entirely away from his father. But the evidence is that, not only was he extremely violent towards her, but also that he had little or no interest in his own child. Be that as it may, from the child’s point of view, we have to deal with the situation as it now is. To deprive him of his mother’s care and place him in the care of people who are complete strangers to him and who have shown so little concern for his welfare would be to deprive him of the only family life he has or has ever had. The discriminatory laws of Lebanon are the reason why that is a real risk in this case. They are also the reason why the interference cannot be justified. But it is the effect upon the essence of the child’s right with which we have to be concerned.

48.  It has been a great help to be able to consider this case from the child’s point of view. In the oral hearing where we considered the child’s application to intervene, the Secretary of State acknowledged that the child might have a separate article 8 claim of his own. Our recent decisions in Beoku-Betts v Secretary of State for the Home Department [2008] UKHL 39, [2008] 3 WLR 166 and Chikwamba v Secretary of State for the Home Department [2008] UKHL 40, [2008] 1 WLR 1420 have made it clear that, not only the Secretary of State, but also the asylum and immigration appeal tribunal, must take account of the article 8 rights of all those who are affected by their decisions. This means, as Lord Bingham says in para 43 of his opinion, that they call for separate consideration.

49.   Separate consideration and separate representation are, however, two different things. Questions may have to be asked about the situation of other family members, especially children, and about their views. It cannot be assumed that the interests of all the family members are identical. In particular, a child is not to be held responsible for the moral failures of either of his parents. Sometimes, further information may be required. If the Child and Family Court Advisory and Support Service or, more probably, the local children’s services authority can be persuaded to help in difficult cases, then so much the better. But in most immigration situations, unlike many ordinary abduction cases, the interests of different family members are unlikely to be in conflict with one another. Separate legal (or other) representation will rarely be called for.

50.  For these reasons, which are merely a family lawyer’s post-script to those given by Lord Bingham, I too would allow this appeal.

LORD CARSWELL

My Lords,

51.  I have had the advantage of reading in draft the opinion prepared by my noble and learned friend Lord Bingham of Cornhill. I agree so entirely with his reasons and conclusions that it would be superfluous to do more than add a few observations of my own.

52.  In deciding this appeal by the application of article 8 of the European Convention on Human Rights the House is applying the domestic law of this country, as it is bound to do. We have to do so by reference to the values enshrined in the Convention, the common values of the states who are members of the Council of Europe. We are not passing judgment on the law or institutions of any other state. Nor are we setting out to make comparisons, favourable or unfavourable, with Shari'a law, which prevails in many countries, reflecting, as Lord Bingham has said (para 42), the religious and cultural tradition of those countries. For this reason I share the doubts expressed by Lord Bingham and by my noble and learned friend Lord Hope of Craighead about the appellant’s right to rely on a claim of discrimination under article 14 of the Convention. I am satisfied, on the other hand, that she has established a good claim under article 8.

53.  Where the Court of Appeal went wrong was in misinterpreting the expressions of opinion of the House in R (Ullah) v Special Adjudicator [2004] UKHL 26, [2004] 2 AC 323 and R (Razgar) v Secretary of State for the Home Department [2004] UKHL 27, [2004] 2 AC 368. The test to be applied in this case, which belongs to the class described as “foreign cases", is whether the action of the United Kingdom authorities in removing the appellant to Lebanon would constitute a flagrant breach of her rights contained in article 8 of the Convention. The Court of Appeal concluded that for the test to be satisfied the appellant’s article 8 rights had to be completely denied or nullified, with the consequence that if she retained any vestige of those rights her claim must fail. That formula is excessively restrictive and sets the bar too high.

54.  I entirely agree with Lord Bingham (para 35) that any attempt at paraphrase of the test runs the risk of causing confusion, and I do not propose to make any such attempt. It is instructive, however, to re-examine what the members of the Appellate Committee said in Ullah and Razgar, which will reaffirm that the correct test (as set out in Mamatkulov and Askarov v Turkey (2005) 41 EHRR 494) is the destruction of the very essence of the right guaranteed by article 8.

55.  The members of the Committee in Ullah were all in agreement in their approach to the test to be applied. Lord Bingham at para 24 referred with approval to the formula of the Immigration Appeal Tribunal in Devaseelan v Secretary of State for the Home Department [2002] UKIAT 702, [2003] Imm AR 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.”

It may be noted, however, that he did so in the same paragraph as his consideration of the test applied under articles 2 and 3 of the Convention, defined by the European Court of Human rights as a “near-certainty” or “real risk". Lord Steyn stated in para 50, after a review of the Strasbourg case-law:

“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.”

56.  In para 69 of my opinion in Ullah I also expressed approval of the IAT’s formulation of the test in Devaseelan, but added significantly that this would harmonise with the concept of a fundamental breach. In Razgar (which was heard along with Ullah) at para 72 I used the phrase “a very grave state of affairs, amounting to a flagrant or fundamental breach of the article, which in effect constitutes a complete denial of his rights” (emphasis added). I returned to the topic in Government of the United States of America v Montgomery (No 2) [2004] UKHL 37, [2004] 1 WLR 2241. In para 26 of my opinion, with which the other members of the House agreed, I stated:

“In the Ullah case and the Razgar case the House accepted the validity of these propositions, but also underlined the extreme degree of unfairness which would have to be established for an applicant to make out a case of indirect effect. It was of opinion that it would have to amount to a virtually complete denial or nullification of his article 6 rights, which might be expressed in terms familiar to lawyers in this jurisdiction as a fundamental breach of the obligations contained in the article.”

57.  It may be seen from the expressions of opinion which I have quoted that it was not the intention of the House in either Ullah or Razgar to define the standard of flagrancy in the absolute terms adopted by the Court of Appeal in the present case. This accords with the views of Judges Bratza, Bonello and Hedigan in Mamatkulov (2005) 41 EHRR 494, para OIII 14, quoted by Lord Bingham at para 34 above, where they expressed the test in familiar Strasbourg terms of “destruction of the very essence” of the right guaranteed. The test therefore remains as set out in Ullah and Razgar and does not require redefinition or paraphrase, still less amendment. If correctly applied it forms a correct and workable means of determining “foreign cases", though it remains clear that it is a stringent test, which will only be satisfied in very exceptional cases.

58.  When it comes to applying it in the present case, I have no hesitation in reaching the conclusion, for the reasons summarised by Lord Bingham in paras 39 and 40, that the appellant’s article 8 rights would be flagrantly violated if she were removed to Lebanon. The facts of the case are very exceptional and, as my noble and learned friend Lord Brown of Eaton-under-Heywood says, provide compelling humanitarian grounds against removal. I should be prepared so to hold even without taking into account the effect upon the child AF, but when that is added into the scale -- as it is now clear that it should be taken into account - the conclusion is even more clear.

59.  I would therefore allow the appeal.

LORD BROWN OF EATON-UNDER-HEYWOOD

My Lords,

 
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