Royal Courts of Justice
Strand, London, WC2A 2LL
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM The Immigration Appeal Tribunal
Mr C.M.G. Ockelton (Deputy President)
Mr N.W. Renton (Senior Immigration Judge)
Mr D.R. Humphrey (Immigration Judge)
Case No. AS/04832/2005
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE GAGE
MR JUSTICE BODEY
| EM (LEBANON)
|- and -
|SECRETARY OF STATE FOR THE HOME DEPT
Nicola Greaney (instructed by Treasury Solicitor) for the Respondent
Hearing date : 9th October, 2006
Crown Copyright ©
The AIT decision
"She says that her husband married her only because of her father's money and that he did not want children. Their son was born in 1996, and her husband sought to abduct him to Saudi Arabia immediately after the birth. He failed in that endeavour and subsequently subjected her to violence of the most extreme kind. She obtained a divorce from the Islamic court and was awarded custody of her son until his seventh birthday. She says (and this is supported by the report on Islamic law in Lebanon) that after that date she would lose custody: her husband or his relatives will have a right to it. Because she did not want to be bound by that rule of law, she arranged to leave Lebanon on false documents, taking her son with her. She says that she is, as a result, sought for the offence of kidnapping and that she is accordingly at risk of ill-treatment in prison and, she suggests, death. She further claims that she would be the subject of discrimination in legal proceedings for custody. She further claims that her separation of her son from her, albeit in accordance with Islamic law as applied in Lebanon, is contrary to her human rights." (para 3)
They noted that the son had made no separate claim, it being accepted that his claim was dependent on that of his mother, and that the Secretary of State would not remove one of them to Lebanon without the other.
"The Lebanese judiciary is generally impartial and independent except in the application of Shari'a law as it relates to the custody of the child after the age of custodial transfer – it is predetermined that in the absence of the approval of the child's father to allow the mother to retain custody, custody is transferred to the father or the father's extended family at the age of custodial transfer.
A mother generally has a right to physical, not legal, custody of her child until the child reaches the age of custodial transfer, at which time the child is returned to the physical custody of the child's father or the father's family. The father always retains legal custody and the right to determine where the child will live and whether the mother may travel with the child. Under Shari'a, a father is the natural guardian (al waley) of his children's persons and property, and some jurisdictions may also give the child's paternal grandfather joint guardianship. In all instances, a child's paternal grandfather is his or her natural guardian after the father. Under the law of Lebanon, guardianship passes to the next relative on the father's side if the father and paternal grandfather are unable to act as guardian….
… even if the courts were to find the father unfit as a parent due to past finding of his unacceptable moral standards, the child would be passed to the paternal grandfather or male member of the extended paternal family…"
"If (the claimant) were to return to Lebanon, the child's father, paternal grandfather, or other male member of the extended paternal family would retain legal custody of the child and (the claimant) may, or may not, be allowed visitation. While the parent with physical custody cannot be compelled to send the child to the other parent's residence for visits, he must bring the child to a place where the other parent can see the child if ordered by the court… If a custody hearing were to be held in Lebanon it would not address custody but would most likely be to determine the appropriateness of allowing (the claimant) access to the child during supervised visits, under no circumstances would custody remain with the mother…."
"We cannot see that it would be right to say on the basis of the information before us that the Appellant would not see her child again."
For the purposes of the present appeal, as I understand it, Miss Webber accepts that the claimant has not established to the necessary standard that she would not obtain visitation rights. Accordingly, her case stands or falls on the apparently certain prospect of loss of custody of her child.
"… to the effect that any ill-treatment of the Appellant on her return to Lebanon would be for the Convention reason of membership of a particular social group, that is to say women in Lebanon. This argument is based on selected sentences from a very large bundle, which are said to establish that "there is clearly no regard for a woman's rights in Lebanon". "
In the Panel's view the country evidence came "nowhere near establishing that proposition", and was "a world away" from the facts in Shah and Islam  2 AC 629 (in which the House of Lords upheld the asylum claims of two women, on the grounds of lack of effective legal protection against marital violence in Pakistan):
"Muslims in Lebanon are governed, in family matters, by Muslim law. The fact that the rules of Muslim law operate in a way which some Western societies might regard as discriminatory does not show that all women are deprived of standing before the law. On the contrary: the Appellant's own claimed history demonstrates that she has been able to obtain relief from the courts."
"… it is not easy to see that this Tribunal should take it upon itself to pass judgment on the general law of another country save in exceptional circumstances."
Having noted that the complaint was not of any action or inaction by the UK Government, but of the possible actions of the Lebanese authorities if she were returned, they continued:
"11. The law in these circumstances is well established. It is to be found in the decisions of the House of Lords in Razgar,  UKHL 27, and Ullah  UKHL 26,  Imm AR 419. 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.
12. 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."
"There is no reason to suppose that the Appellant is not entitled to the protection of the law in respect of any attacks by her husband, whom she had indeed not seen for some years before her departure for the United Kingdom. There is therefore no real risk from him. If the Appellant is subject to criminal proceedings for kidnapping, she may possibly serve a prison sentence. We were not asked to find, and we would not have found, that that risk of itself could cause the United Kingdom to be in breach of her rights under Article 3 by returning her. We should, however, observe that our conclusions on Article 2 and Article 3 to an extent support the conclusion we reached on the refugee claim: even if any ill-treatment that she may receive on return had been for a Convention reason, there does not seem to be any real risk that she would be subject to such treatment as might amount to persecution. " (para 17)
The issues in the appeal
"Removing a child from the mother's custody for the sole reason of her sex, without regard to the interests, wishes or welfare of either mother or child, constitutes a flagrant denial of rights to equal treatment in the enjoyment of the 'elementary' right to care for one's own child and corresponding right of the child to be cared for by his mother.
Such a flagrant denial of fundamental rights…
(i) engages the United Kingdom's obligations under the Human Rights Convention and renders the forcible return of mother and child to Lebanon disproportionate to the legitimate aims entailed in immigration control;
(ii) constitutes persecution, alone or together with the likelihood of imprisonment of a mother who acts in breach of such a measure."
"1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2.. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
"The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."
"9. Domestic cases as I have defined them are to be distinguished from cases in which it is not claimed that the state complained of has violated or will violate the applicant's Convention rights within its own territory but in which it is claimed that the conduct of the state in removing a person from its territory (whether by expulsion or extradition) to another territory will lead to a violation of the person's Convention rights in that other territory. I call these "foreign cases", acknowledging that the description is imperfect, since even a foreign case assumes an exercise of power by the state affecting a person physically present within its territory…"
"24. While the Strasbourg jurisprudence does not preclude reliance on articles other than article 3 as a ground for resisting 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, paragraph 91; Cruz Varas, paragraph 69; Vilvarajah, paragraph 103. In Dehwari, paragraph 61 (see paragraph 13 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, paragraph 113 (see paragraph 10 above); Drodz, paragraph 110; Einhorn, paragraph 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  IAT 702,  Imm AR 1, paragraph 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"."
Both parties before us rely on the test as there formulated by the AIT (presided over as in the present case by Mr Ockelton). For ease of reference I shall call this "the Devaseelan formula".
"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." (para 50)
It is apparent from the preceding paragraphs that he regarded this test as applicable not only under article 8, but also under what he called the "cluster of qualified guarantees" comprising articles 9-11 and 14.
"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 paragraph 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 at p 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."
On the facts of the case, assuming article 9 to be engaged, he did not consider that the appellants came within "the possible parameters of a flagrant, gross or fundamental breach of that article".
"Another way of putting this distinction is that in domestic cases the contracting state is directly responsible, because of its own act or omission, for the breach of Convention rights. In foreign cases, the contracting state is not directly responsible: its responsibility is engaged because of the real risk that its conduct in expelling the person will lead to a gross invasion of his most fundamental human rights." (p 41)
She also referred to the acceptance in the Strasbourg jurisprudence of "the state's obligation to take positive steps to enable family life to develop between parent and child" (recognised since the "ground-breaking decision of Marckx v Belgium (1979) 2 EHRR 330), and of "the elementary human right, the right to care for your children" (para 53).
"The Convention is widely regarded as a great success, particularly in combating the paradigm case which its authors had in mind: the child who was living with one parent but snatched or spirited away by the other…. Obviously, the cultures and legal systems of the Contracting States will differ widely from one another. All are prepared to accept these differences for the sake of the reciprocal benefits which membership can bring. But one group of States is conspicuous by its absence. These are States which adopt some form of Shariah law." (para 21)
42. The fact remains that the unchallenged evidence before the trial judge was that the law in Saudi Arabia treats fathers and mothers differently and in significant respects the mother is in a less favourable position than the father. Under articles 8 and 14 of the European Convention on Human Rights, the right to respect for family life is to be enjoyed without discrimination on grounds of sex. The Court of Appeal held, at para 34, that the fact that the mother might experience in Saudi Arabia what would be regarded here as breaches of her Convention rights did not render the English court in breach of those rights if it returned F to Saudi Arabia. In reaching that conclusion the Court relied principally on the decision of the Court of Appeal in R (Ullah) v Special Adjudicator…: our obligations were only engaged if the likely treatment in another state would engage the prohibition against torture and inhuman or degrading treatment or punishment in article 3 of the Convention. This House has since held that our obligations may be engaged where there is a real risk of particularly flagrant breaches of other articles in the foreign country… This is not a case of such a risk. In relation to article 8, however, a distinction has also been drawn between 'domestic' cases, where a family life established here may be disrupted by a forced return to another country, and 'foreign' cases, where the only breach would take place abroad: see Lord Bingham of Cornhill, at paras 7 - 9. In practice, this adds nothing to the welfare inquiry, once it is accepted that the strength of the child's connection with this country, and the effect upon his parent here, are relevant to whether a summary return will be in his best interests.
43. However, there is another way in which the human rights considerations might have been relevant. Article 20 of the Hague Convention provides that:
"The return of the child under the provisions of article 12 may be refused if this would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms."
44. This was not included in the provisions incorporated into our law by the 1985 Act because at that time it would have been difficult to say what our fundamental principles relating to the protection of human rights and fundamental freedoms were. Now that we have incorporated the European Convention on Human Rights, that is no longer a problem. Mr Setright acknowledged that had the Human Rights Act 1998 preceded rather than followed the 1985 Act there would have been no reason not to incorporate article 20.
45. The importance of article 20 is that it asks whether what might happen in the foreign country would be permitted under those fundamental principles were it to happen here. (It thus goes further than the principle under consideration in Ullah, which asks whether it is a breach of this country's obligations to send a person away to a country where his human rights may be violated.) In this country, it would not be acceptable to distinguish automatically between father and mother in their relationship with their children. Non-discrimination between the sexes is a fundamental principle of our law. Were article 20 of the Hague Convention to be incorporated, we would be entitled, though not obliged, to decline to return a child on that ground alone. If we were, therefore, to be applying the spirit of the Hague Convention in a non-Convention case, there would be no reason not to apply the whole of the Hague Convention, including article 20. Any discrimination in the foreign country which was contrary to article 14 of the Convention on Human Rights would allow, but not require, the court to refuse to return the child. This consideration serves to reinforce the view that the legal system in the foreign country cannot be irrelevant to the issue of summary return."
"It remains to be ascertained what the "respect" for this family life required of the Belgian legislature in each of the areas covered by the application.
By proclaiming in paragraph 1 the right to respect for family life, Article 8 (art. 8-1) signifies firstly that the State cannot interfere with the exercise of that right otherwise than in accordance with the strict conditions set out in paragraph 2 (art. 8-2). As the Court stated in the "Belgian Linguistic" case, the object of the Article is "essentially" that of protecting the individual against arbitrary interference by the public authorities (judgment of 23 July 1968, Series A no. 6, p. 33, para. 7). Nevertheless it does not merely compel the State to abstain from such interference: in addition to this primarily negative undertaking, there may be positive obligations inherent in an effective "respect" for family life.
This means, amongst other things, that when the State determines in its domestic legal system the regime applicable to certain family ties such as those between an unmarried mother and her child, it must act in a manner calculated to allow those concerned to lead a normal family life. As envisaged by Article 8 (art. 8), respect for family life implies in particular, in the Court's view, the existence in domestic law of legal safeguards that render possible as from the moment of birth the child's integration in his family. In this connection, the State has a choice of various means, but a law that fails to satisfy this requirement violates paragraph 1 of Article 8 (art. 8-1) without there being any call to examine it under paragraph 2 (art. 8-2).
Article 8 (art. 8) being therefore relevant to the present case, the Court has to review in detail each of the applicants' complaints in the light of this provision." (emphasis added)
"32. … The Court's case-law shows that, although Article 14 (art. 14) has no independent existence, it may play an important autonomous role by complementing the other normative provisions of the Convention and the Protocols: Article 14 (art. 14) safeguards individuals, placed in similar situations, from any discrimination in the enjoyment of the rights and freedoms set forth in those other provisions. A measure which, although in itself in conformity with the requirements of the Article of the Convention or the Protocols enshrining a given right or freedom, is of a discriminatory nature incompatible with Article 14 (art. 14) therefore violates those two Articles taken in conjunction. It is as though Article 14 (art. 14) formed an integral part of each of the provisions laying down rights and freedoms…
Accordingly, and since Article 8 (art. 8) is relevant to the present case (see paragraph 31 above), it is necessary also to take into account Article 14 in conjunction with Article 8 (art. 14+8).
33. According to the Court's established case-law, a distinction is discriminatory if it "has no objective and reasonable justification", that is, if it does not pursue a "legitimate aim" or if there is not a "reasonable relationship of proportionality between the means employed and the aim sought to be realised"…"
34. In acting in a manner calculated to allow the family life of an unmarried mother and her child to develop normally (see paragraph 31 above), the State must avoid any discrimination grounded on birth: this is dictated by Article 14 taken in conjunction with Article 8." (emphasis added)
"It is true that, at the time when the Convention of 4 November 1950 was drafted, it was regarded as permissible and normal in many European countries to draw a distinction in this area between the "illegitimate" and the "legitimate" family. However, the Court recalls that this Convention must be interpreted in the light of present-day conditions (Tyrer judgment of 25 April 1978, Series A no. 26, p. 15, para. 31). In the instant case, the Court cannot but be struck by the fact that the domestic law of the great majority of the member States of the Council of Europe has evolved and is continuing to evolve, in company with the relevant international instruments, towards full juridical recognition of the maxim "mater semper certa est". (para 41)
Issues in the appeal
"… to ensure, on a basis of equality of men and women:
(d) the same rights and responsibilities as parents, irrespective of their marital status, in matters relating to their children; in all cases the interests of the children shall be paramount."
Such reservations have been categorised by the CEDAW Committee as "impermissible". Article 16 is described as a "core provision" of the Convention, and accordingly:
"… reservations to article 16, whether lodged for national, traditional, religious or cultural reasons, are incompatible with the Convention and therefore impermissible and should be reviewed and modified or withdrawn."
"… 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."
Here I think her criticism has more justification. The Tribunal is not asked to any kind of value judgment on the laws of Lebanon, still less to express a political opinion as to whether the citizens of that country should be subject to such laws. The issue is one purely of domestic law, incorporating the Convention. That was made clear in the leading case of Soering v UK (1989) 11 EHRR 439, discussed at length in Ullah. The claimant argued that extradition to the United States, because of his prospect of detention on death row if convicted, would infringe his rights under article 3. Although the claim was rejected on the facts, the court accepted in principle that such a claim might give rise to an issue under the Convention and hence "engage the responsibility" of a signatory state:
"The establishment of such responsibility inevitably involves an assessment of conditions in the requesting country against the standards of Article 3 of the Convention. Nonetheless, there is no question of adjudicating on or establishing the responsibility of the receiving country, whether under general international law, under the Convention or otherwise. In so far as any liability under the Convention is or may be incurred, it is liability incurred by the extraditing Contracting State by reason of its having taken action which has as a direct consequence the exposure of an individual to proscribed ill-treatment." (para 91, emphasis added)
There is no suggestion in Ullah that a different approach should apply to article 8.
Permission to appeal – article 14
Permission to appeal – the Refugee Convention
Lord Justice Gage:
"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 interference is shown."
Mr Justice Bodey:
"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" ( the test which Carnwath LJ has called " the Devaseelean formula").
"… it seems to me that it [the concept of a flagrant breach or violation] was well expressed by the Immigration Appeal Tribunal in Devaseelean, when it applied the criterion that the right in question would be completely denied or nullified in the destination country… it does not seem to me that either appellant comes within the possible parameters of a flagrant, gross or fundamental breach of [Article 9] such as to amount to a denial or nullification of the rights conferred by it". [Emphasis added, for a reason which will appear].
"… the fact that the rules of Muslim law operate in a way which some Western societies might regard as discriminatory does not show that all women are deprived of standing before the law. On the contrary, the appellant's own claimed history [her ability to obtain a divorce against the husband in the Lebanon] demonstrates that she has been able to obtain relief from the courts".
"… there is a judicial system [in the Lebanon] 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."
"… I appreciate that this may seem a harsh conclusion to draw. But this is a field in which harsh decisions sometimes have to be made. People have to be returned to situations which we would find appalling."
Coming at it from my particular perspective, I do find this to be a hard decision for the particular appellant mother and for the child, given the context of the expert evidence. However, it must be recognised that the high threshold test is imposed in such cases for the legitimate reason of preserving the efficacy of necessary immigration controls, in all but extreme cases. Any lower test would potentially give rise to an influx of such cases since, on the expert evidence, the anticipated Article 8 and Article 14 infringements (as we would say they objectively appear to be) are a 'given' in every "foreign" case which is or would be on an expulsion governed by Shari'a Law.