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EM (Lebanon) (FC) (Appellant) (FC) v Secretary of State for the Home Department (Respondent)
HOUSE OF LORDS
 UKHL 64
on appeal from:EWCA Civ 1531
OF THE LORDS OF APPEAL
FOR JUDGMENT IN THE CAUSE
EM (Lebanon) (FC) (Appellant) (FC) v Secretary of State for the Home Department (Respondent)
Lord Hope of Craighead
Lord Bingham of Cornhill
Baroness Hale of Richmond
Lord Brown of Eaton-under-Heywood
(Instructed by J M Wilson Solicitors)
First Intervener (ALF)
Henry Setright QC
(Instructed by Dawson Cornwell)
Monica Carss-Frisk QC
(Instructed by Treasury Solicitors)
Second Intervener (Justice and Liberty)
Rabinder Singh QC
(Instructed by Freshfields Bruckhaus Deringer LLP)
21 and 22 JULY 2008
WEDNESDAY 22 OCTOBER 2008
HOUSE OF LORDS
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
EM (Lebanon) (FC) v Secretary of State for the Home Department (Respondent)
 UKHL 64
LORD HOPE OF CRAIGHEAD
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 States 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 States 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  2 AC 323 and R (Razgar) v Secretary of State for the Home Department  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  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 Steyns 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  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 others 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 courts 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)  2 AC 296.
8. In Ns 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 applicants 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 issue under article 3, but only in a very exceptional case, where the humanitarian grounds against the removal are compelling.
In para 44 the Grand Chamber recalled that, although many of the rights it contains have implications of a social or economic nature, the Convention is essentially directed at the protection of civil and political rights.
Advances in medical science, together with social and economic differences between countries, entail that the level of treatment available in the Contracting State and the country of origin may vary considerably. While it is necessary, given the fundamental importance of article 3 in the Convention system, for the court to retain a degree of flexibility to prevent expulsion in very exceptional cases, article 3 does not place an obligation on the Contracting State to alleviate such disparities through the provision of free and unlimited health care to all aliens without a right to stay within its jurisdiction. A finding to the contrary would place too great a burden on the Contracting States.
10. That was a case about article 3, not one of the qualified Convention rights. Yet even in such a case, where there was a very real risk that the harm that would result from the applicants expulsion to the inferior system of health care in her country of origin would reach the severity of treatment prescribed by that article, the court held that, other than in very exceptional cases, there was no obligation under the Convention to allow her to remain here. This was because it was not the intention of the Convention to provide protection against disparities in social and economic rights. To hold otherwise, even in an article 3 case, would place too great a burden on the Contracting States. Similar observations about the limits that must be set on practical grounds to the qualified obligations that they have undertaken in the area of civil and political rights are to be found in F v United Kingdom (Application No 17341/03) (unreported) 22 June 2004 and Z and T v United Kingdom (Application No 27034/05) (unreported) 28 February 2006. These decisions were not available to the House when it was considering the cases of Ullah  2 AC 323 and Razgar  2 AC 368, the judgments in which were delivered on 17 June 2004.
11. In F v United Kingdom the applicant was an Iranian citizen who had claimed asylum here on the basis that he feared persecution as a homosexual. His application for asylum was rejected. But he claimed that there would be a breach of article 8 if he were to be removed to Iran because a law in that country prohibited adult consensual homosexual activity. His application was declared inadmissible by the Strasbourg court. At p 12 of its decision the court observed that its case law had found responsibility attaching to Contracting States in respect of expelling persons who were at risk of treatment contrary to articles 2 and 3 of the Convention. It said that this was based on the fundamental importance of these provisions, whose guarantees it was imperative to render effective in practice: Soering v United Kingdom (1989) 11 EHRR 439, para 88. But it went on to say this:
Such compelling considerations do not automatically apply under the other provisions of the Convention. On a purely pragmatic basis, it cannot be required that an expelling Contracting State only return an alien to a country which is in full and effective enforcement of all the rights and freedoms set out in the Convention.
12. In Z and T v United Kingdom the applicants were citizens of Pakistan. They were also Christians. They feared that they would be subjected to attack by Muslim extremists if they were to be returned to Pakistan because they were Christians. The case raised a question as to the approach to be taken to article 9 rights that were allegedly at risk on expulsion. It was argued that the flagrant denial test should not be applied, as this would fail to respect the primacy of the applicants religious rights. The Strasbourg court rejected this argument. It found that, even assuming that article 9 was capable of being engaged in the case of the expulsion of an individual by a Contracting State, the applicants had not shown that they were personally at risk or were members of such a vulnerable or threatened group, or in such a precarious position as Christians, as might disclose a flagrant violation of article 9 of the Convention. But at p 7 of its judgment the court said that it considered that very limited assistance, if any, could be obtained from article 9 by itself:
Otherwise it would be imposing an obligation on Contracting States effectively to act as indirect guarantors of freedom of worship for the rest of the world. If, for example, a country outside the umbrella of the Convention were to ban a religion but not impose any measure of persecution, prosecution, deprivation of liberty or ill-treatment, the court doubts that the Convention could be interpreted as requiring a Contracting State to provide the adherents of that banned sect with the possibility of pursuing that religion freely and openly on their own territories. While the court would not rule out the possibility that the responsibility of the returning state might in exceptional circumstances be engaged under article 9 of the Convention where the person concerned ran a real risk of flagrant violation of that article in the receiving state, the court shares the view of the House of Lords in the Ullah case that it would be difficult to visualise a case in which a sufficiently flagrant violation of article 9 would not also involve treatment in violation of article 3 of the Convention.
The reference in the last sentence endorses Lord Carswells observation in para 67 of his opinion in Ullah  2 AC 323 that he found it difficult to envisage a case, bearing in mind the flagrancy principle, in which there could be a sufficient interference with the article 9 rights which did not also come within the article 3 exception.
13. Running through these three recent cases is a recognition by the Strasbourg court that, while the Contracting States are obliged to protect those from other jurisdictions who can show that for whatever reason they will suffer persecution or are at real risk of death or serious ill-treatment or will face arbitrary detention or a flagrant denial of a fair trial in the receiving country, limits must be set on the extent to which they can be held responsible outside the areas that are prescribed by articles 2 and 3 and by the fundamental right under article 6 to a fair trial. Those limits must be seen against the background of the general principle of international law that states have the right to control the entry, residence and expulsion of aliens. In N v United Kingdom a distinction was drawn between civil and political rights on the one hand and rights of a social or economic nature on the other. Despite its fundamental importance in the Convention system, article 3 does not have the effect of requiring a Contracting State to guarantee free and unlimited health care to all aliens who are without a right to stay within its jurisdiction. In F v United Kingdom, an article 8 case, a distinction of a different kind was drawn. On the one hand there are those guarantees which, as they are of fundamental importance, must always be rendered effective in practice. On the other there are the qualified rights of a civil or political nature which, on a purely pragmatic basis, the Contracting States cannot be required to guarantee for the rest of the world outside the umbrella of the Convention.
14. As this case shows, the principle that men and women have equal rights is not universally recognised. Lebanon is by no means the only state which has declined to subscribe to article 16(d) of the United Nations Convention on the Elimination of All Forms of Discrimination against Women of 18 December 1979 which declares that States Parties shall ensure, on a basis of equality of men and women, the same rights and responsibilities as parents, irrespective of their marital status, in all matters relating to their children and that in all cases the interests of the children shall be paramount. For the time being that declaration remains in most, if not all, Islamic states at best an aspiration, not a reality. As the court said in Soering, para 91, there is no question of adjudicating on or establishing the responsibility of the receiving state, whether under general international law, under the Convention or otherwise. Everything depends on the extent to which responsibility can be placed on the Contracting States. But they did not undertake to guarantee to men and women throughout the world the enjoyment without discrimination of the rights set out in the Convention or in any other international human rights instrument. Nor did they undertake to alleviate religious and cultural differences between their own laws and the family law of an aliens country of origin, however extreme their effects might seem to be on a family relationship.
15. The guidance that is to be found in these decisions indicates that the Strasbourg court would be likely to hold that, except in wholly exceptional circumstances, aliens who are subject to expulsion cannot claim an entitlement to remain in the territory of a Contracting State in order to benefit from the equality of treatment as to respect for their family life that they would receive there which would be denied to them in the receiving state. The return of a woman who arrives here with her child simply to escape from the system of family law of her own country, however objectionable that system may seem in comparison with our own, will not violate article 8 read with article 14. Domestic violence and family breakdown occur in Muslim countries just as they do elsewhere. So the inevitable result under Shari'a law that the separated mother will lose custody of her child when he reaches the age of custodial transfer ought, in itself, to make no difference. On a purely pragmatic basis the Contracting States cannot be expected to return aliens only to a country whose family law is compatible with the principle of non-discrimination assumed by the Convention.
16. How then can one distinguish between those cases where a violation of articles 8 and 14 that results from applying Shari'a law will be flagrant from those where it will not? It is hard to envisage a case where the way the law deals with a child custody case will also violate article 3. The possibility of a violation of that article may have a part to play in the assessment in more extreme article 9 religious persecution cases, as Lord Carswells observation in Ullah, para 67 and its adoption by the Strasbourg court in Z and T, p 7, indicate. That may be the case in some article 8 cases, as in F. But it is likely to be absent in article 8 plus article 14 cases where the complaint is about the effects of discriminatory family law on the relationship that exists between individuals. It has not been suggested in this case that there is a risk that the application of the Shari'a law would result in persecution of the appellant approaching the level prescribed by article 3. So that check as to whether a flagrant breach has been established cannot be relied on in the assessment.
17. There remains the observation that the Grand Chamber made in N v United Kingdom, 27 May 2008, para 42, that an issue under article 3 may be raised only in a very exceptional medical treatment case where the humanitarian grounds against the removal are compelling. D v United Kingdom (1997) 24 EHRR 423, where the applicant was critically ill and close to death, was such a case. This suggests that the key to identifying those cases where the breach of articles 8 and 14 will be flagrant lies in an assessment of the effects on both mother and child of destroying or nullifying the family life that they have shared together. The cases where that assessment shows that the violation will be flagrant will be very exceptional. But where the humanitarian grounds against their removal are compelling, it must follow that there is an obligation not to remove. The risk of adding one test to another is obvious. But in the absence of further guidance from Strasbourg as to how the flagrancy test is to be applied in article 8 cases, I would adopt that approach in this case.
18. As I said as the outset of this opinion, the case for allowing the appellant and her son to remain in this country on humanitarian grounds is compelling. This is particularly so when the effects on the child are take into account. His mother has cared from him since his birth. He has a settled and happy relationship with her in this country. Life with his mother is the only family life he knows. Life with his father or any other member of his family in Lebanon, with whom he has never had any contact, would be totally alien to him. This enables me to conclude that this is a very exceptional case and that there is a real risk of a flagrant denial of their article 8 rights if the appellant and her child were to be returned to Lebanon. I would allow the appeal.
LORD BINGHAM OF CORNHILL
19. By article 8 of the European Convention on Human Rights, given domestic effect by the Human Rights Act 1998, everyone in this country has the right to respect for their family life, which may be the subject of interference by a public authority only if the interference is lawful, proportionate and directed to a legitimate end. The enjoyment of this right is, by article 14, to be secured without discrimination on any ground such as sex. The appellant claims that if she and her son AF are removed from this country to Lebanon on the direction of the respondent Secretary of State, her right to respect for her family life will be infringed and will be so on a discriminatory basis attributable to her being a woman. This claim rests not on any treatment she or AF will suffer in this country but on the consequences if she and her son are returned to Lebanon. Thus this is what has been described as a foreign case: the only conduct by a British authority of which the appellant complains is her removal to a place where she will suffer these consequences. Her challenge is directed to the decision to remove her. The burden lying on a claimant in a foreign case such as this is, the appellant acknowledges, a very exacting one. But she contends that, on the exceptional facts of her case, and recognising the interests of AF, she discharges it. The courts below held that she did not. The appellant submits that those courts did not correctly understand and apply the test laid down by the authorities, and that the interests of AF (who was first given leave to intervene in the House) should be taken into account. Her submissions are supported by AF, and also by JUSTICE and Liberty.