| IMMIGRATION — Asylum — Removal — Divorced mother losing custody of child as consequence of removal — Whether infringement of right to family life — Human Rights Act 1998, Sch I, Pt1, arts 8, 14
EM (Lebanon) v Secretary of State for the Home Department (AF and others intervening) [2008] UKHL 64; [2008] WLR (D) 00; [2008] WLR (D) 325
HL: Lord Hope of Craighead, Lord Bingham of Cornhill, Baroness Hale of Richmond, Lord Carswell and Lord Brown of Eaton-under-Heywood: 22 October 2008
The removal of a foreign national from the United Kingdom was unlawful, as incompatible with the United Kingdom's obligations under art 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, if it would amount to a flagrant breach of her right to respect for her family life so as to completely deny or nullify that right in the destination country.
The House of Lords so when allowing an appeal by EM from the order of the Court of Appeal (Carnwath, Gage LJJ and Bodey J) [2007] UKHRR 1 dismissing her appeal against that part of a decision of the Asylum and Immigration Tribunal upholding an immigration judge's decision that her removal to Lebanon following the Secretary of State for the Home Departments' refusal of her claim to asylum would not breach her art 8 rights.
EM and her husband, both Lebanese Muslims with one child, AF, had divorced. Under Islamic law as applied in the Lebanon the father became automatically entitled to custody when the child became seven, with the mother thereafter only able to seek supervised access. When AF was approaching seven EM fled with him and claimed asylum in the United Kingdom. Her claim was refused but she claimed that if she and her son were removed to Lebanon her art 8 right would be infringed.
LORD BINGHAM said that by art 8, given domestic effect by the Human Rights Act 1998, everyone in the United Kingdom had the right to respect for their family life. Art 8 could in principle be engaged in relation to the removal of an individual from the United Kingdom but it had to be shown that the person risked suffering a flagrant denial of the right such as would completely deny or nullify the right in the destination country. Here, on return to Lebanon both EM's and AF's right to respect for family life would be completely denied and nullified. In no meaningful sense could occasional supervised visits by EM to AF at a place other than her home be described as family life. The effect of return would be to destroy the family life of EM and AF as it was now lived.
LORD HOPE, LADY HALE, LORD CARSWELL and LORD BROWN delivered concurring opinions.
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Appearances: Frances Webber and Stephanie Harrison (J M Wilson, Birmingham) for EM; Monica Carss-Frisk QC and Nicola Greaney (Treasury Solicitor) for the Secretary of State; Henry Setright QC, Teertha Gupta and Margaret Phelan (Dawson Cornwell) for AF, intervening; Rabinder Singh QC and Raza Husain (Freshfields Bruckhaus Deringer LLP) for JUSTICE and Liberty, intervening.
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