EM (Lebanon) v Secretary of State for the Home Dept

In a foreign human-rights case, removal is resisted under Articles 8 and 14 only where treatment in the receiving state would completely deny or nullify the protected right. The inquiry is objective and concerns the Convention responsibility of the removing state, not a value judgment on foreign law. Loss of custody by a mother under a discriminatory rule may seriously infringe family life, but it does not meet that high threshold where meaningful contact or visitation remains possible. Article 14 is integral to Article 8, but gender discrimination does not by itself lower the foreign-case threshold.

The appellant, a Lebanese mother, challenged removal with her son to Lebanon after her asylum and human-rights claims had been refused. Expert evidence indicated that, when the child reached the relevant age, custody would automatically transfer to the father or male paternal relatives under Shari’a-based family law, although visitation might remain available.

The Immigration Appeal Tribunal confirmed the dismissal of her appeal. The Court of Appeal considered whether removal would expose the United Kingdom to responsibility for a foreign breach of Articles 8 and 14, and whether the evidence supported permission to appeal under the Refugee Convention.

Disposition. The Court of Appeal granted permission to pursue the Article 14 ground, dismissed the appeal under Articles 8 and 14, and refused the out-of-time application for permission under the Refugee Convention.

1. The case was a “foreign case”. Applying the approach adopted by the House of Lords in Ullah [2004] UKHL 26 and formulated in Devaseelan [2002] IAT 702, removal on the basis of a qualified Convention right will engage the removing state’s obligations only where the right would be completely denied or nullified in the receiving state.
2. The assessment is objective. The court must consider the anticipated treatment against Convention standards and the responsibility of the removing state. It is not deciding whether the receiving state’s legal system is acceptable generally: Soering v UK (1989) 11 EHRR 439.
3. Family life under Article 8 includes both day-to-day care and continuing contact. The automatic loss of custody was discriminatory and unacceptable by domestic standards, but the evidence did not establish that all contact would cease. Visitation therefore prevented a complete denial or nullification of the appellant’s Article 8 right. The child’s welfare was not the paramount consideration in this immigration appeal.
4. Article 14 has no independent existence but operates as an integral part of Article 8. The gender discrimination could engage both provisions, but it did not itself overcome the foreign-case threshold. Re J (a Child) [2005] UKHL 40 was distinguished because it concerned a private-law child-return dispute governed by a different welfare dynamic.
5. The proposed argument that prosecution for abduction was itself contrary to Convention principles was a wholly new point, neither integral nor obvious, and was excluded. The decision in Fornah [2006] UKHL 46 did not assist because it concerned the particular-social-group issue, not whether the feared treatment was sufficiently severe to amount to persecution.

Carnwath LJ gave the leading judgment. Gage LJ agreed. Bodey J reached the same result, emphasising that the decisive issue was the completeness of the denial, not merely the discriminatory quality of the interference.

1. Court of Appeal (Civil Division): appeal under Articles 8 and 14 dismissed; permission granted on Article 14; out-of-time Refugee Convention permission refused.
2. Immigration Appeal Tribunal: the Panel confirmed the Immigration Judge’s dismissal following reconsideration. The Immigration Judge had rejected the appeal on 13 June 2005, and the Panel confirmed the decision on 22 November 2005.