EM (Lebanon) v Secretary of State For The Home Department  UKHL 64 (22 October 2008)
The House of Lords recently ruled that a foreign national could not be removed from the UK in circumstances that would completely deny or nullify her right to family life, since such removal would be incompatible with the UK's obligations under the European Convention on Human Rights, given domestic effect by the Human Rights Act 1998.
Article 8 of the European Convention confers on everyone in the UK 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. According to art 14, the enjoyment of this right is to be secured without discrimination on any ground.
The appellant, EM, is a 36 year old Lebanese national who came to the UK seeking asylum in 2004 with her son, AF, now aged 12. In Lebanon, EM was married to a man who beat her, attempted to throw her off a balcony and on at least one occasion tried to strangle her. Her first pregnancy was terminated by her then husband striking her in the stomach with a vase, ostensibly due to the fact that he did not want children. When AF was born, the former husband attempted to remove the infant from hospital and take him to Saudi Arabia, however, he was prevented from doing so and has not made any contact with AF since. At some stage, AF's father spent time in prison for theft and, on another occasion, for not supporting AF. EM suffered a breakdown and divorced her husband on the grounds of violence.
According to Shari'a law as applied to Muslim couples in Lebanon, following a divorce the father retains legal custody of the child at all times. The mother is permitted to retain physical custody of the child until age seven, at which time physical custody passes to the father or another male member of the father's family. Even prior to age seven the father has the right to decide where the child lives and whether the child may travel with the mother. The Lebanese courts have no discretion in this process. The mother may or may not be allowed supervised visits thereafter.
AF remained in the care of EM until age seven. After AF's seventh birthday, EM went in to hiding to prevent his removal from her care. Her former husband issued court proceedings and commenced harassing EM's family. EM and AF then fled Lebanon for the UK. The House of Lords accepted that if EM were to return to Lebanon, she would be at risk of imprisonment on a charge of kidnapping AF.
The UK Secretary of State refused EM's claim to asylum, which decision was upheld by the Asylum and Immigration Tribunal and the Court of Appeal. EM appealed to the House of Lords on the grounds that her removal to Lebanon would constitute a violation of her right to respect for family life afforded her by art 8 of the European Convention read in conjunction with art 14. EM argued that the lower courts did not correctly understand and apply the relevant test and that the interests of AF should be taken in to account.
EM's case was that the treatment that she would receive in Lebanon, in particular the removal of AF from her custody, would be discriminatory on the basis of her gender. It was accepted that the Lebanese legal system was 'created by and for men in a male dominated society' (at 6). The transfer of children to a male parent or a male member of the male parent's family is automatic, irrespective of the interests of the mother or child. The only conduct by British authorities complained of was the removal of EM and AF to a country where such discrimination occurs. This was thus a 'foreign case', aimed at escaping the discriminatory effects of the system of family law in Lebanon rather than alleging discrimination by British authorities.
Having analysed relevant Strasbourg jurisprudence, the House of Lords deduced that, except in wholly exceptional circumstances, aliens who are subject to expulsion cannot claim an entitlement to remain in the UK in order to benefit from the equality of treatment that they receive there which would be denied them in their country of origin. Lord Hope noted that Islamic law is practised in much of the world and from a pragmatic point of view, Contracting States to the European Convention cannot be expected to return aliens only to countries whose family law is compatible with the principle of non-discrimination contained in the Convention. Moreover Lord Bingham propounded that the UK had 'no general mandate to impose its own values on other countries who do not share them' (at 42). It was confirmed that the burden lying on a claimant in a foreign case is a 'very exacting one' (at 19).
The question before the court was whether, on the particular facts of the case, EM had established that if deported to Lebanon, she and AF would run a real risk of a flagrant denial of the right to respect for their family life such that this right would be completely denied or nullified. Cases where a denial would be considered flagrant are 'very exceptional' (at 17).
The House of Lords found that this was a very exceptional case. The decision confirmed that the parent/child relationship is a fundamental aspect of the family life referred to in art 8, between a child and both his mother and his father. However AF had not had any contact with his father or any member of his father's family in his lifetime, therefore in reality the only family that existed consisted of EM and AF and it is the life of that family that was in issue (at 39). Lord Bingham observed that the relationship between the two was one of deep love and mutual dependence and was not capable of being replaced by a new relationship with AF's father given his history of violence, crime and neglect, nor an unknown member of his father's family.
The risk of imprisonment if charged with kidnapping AF meant that EM would lose any chance of visitation rights. Even if allowed supervised visits, it was found that this could in no meaningful sense be described as family life (at 41). Importantly, the earlier hearings of this matter had not benefited from evidence from AF. The House of Lords noted with approval that this appeal had underscored the importance of ascertaining and communicating to the court the views of the child.
Relevance to the Victorian Charter
This decision is relevant to the scope and content of ss 13 and 17 of the Victorian Charter. Section 13 protects, inter alia, the right not to have one's family arbitrarily interfered with. Section 17 goes even further than the correlating articles of the European Convention and states that one's family is 'entitled to be protected by society and the State' and further that 'every child has the right, without discrimination, to such protection as is in his or her best interests'. There is clearly scope to utilise these provisions of the Charter to ensure that the right to family life and the rights of a child are given due consideration, particularly in the context of asylum seekers and family law disputes.
The decision is available at http://www.bailii.org/uk/cases/UKHL/2008/64.html.
Briohny Coglin is a lawyer with Minter Ellison