EM (Lebanon) v Secretary of State For The Home Department

The House allowed the appeal and quashed the Secretary of State's decision ordering the return of the appellant and her son to Lebanon. The court applied the "flagrant denial" test for "foreign" cases where removal would engage qualified Convention rights (in particular article 8 read with article 14), adopting the formulation in Mamatkulov and Askarov and the guidance in Ullah and Razgar. It held that removal would risk a "real risk of a flagrant denial" or the destruction of the very essence of the family life of the mother and child because Lebanese family law (as applied) would automatically transfer physical custody from mother to father on custodial transfer and permit only, at best, supervised visitation. The decision emphasised that the test is stringent and exceptional cases only will succeed, but that the child’s best interests and the highly compelling humanitarian facts in this case made it exceptional.

This was an appeal against decisions below ordering the return of a Lebanese national (the appellant) and her son to Lebanon. The appellant arrived in the United Kingdom with her son in December 2004 and claimed asylum; her asylum claim was refused and the Secretary of State rejected her Convention article 8 (family life) and article 14 (non-discrimination) arguments. The Immigration Judge and the Asylum and Immigration Tribunal rejected her claims; the Court of Appeal ([2007] UKHRR 1) dismissed her appeal. She appealed to the House of Lords.

The nature of the claim: a "foreign case" challenge to removal: the appellant sought to resist removal under article 8 read with article 14 on the grounds that return to Lebanon would result in a flagrant denial of the right to respect for family life because Shari'a family law in Lebanon would automatically transfer custody from mother to father when the child reached the age of custodial transfer.

Issues framed by the court:

• What is the appropriate test in a foreign case under article 8 (read with article 14) — specifically the meaning and application of a "flagrant denial" or nullification of the very essence of the right?
• Whether, on the facts, return to Lebanon would create a real risk of such a flagrant denial of family life for the appellant and her son.

Court’s reasoning: The House adopted the wording of the test articulated in Mamatkulov and Askarov (and the high threshold explained in Ullah and Razgar): a removal will be unlawful only where there is at least a real risk of a flagrant violation amounting to destruction of the very essence of the Convention right. The court reviewed Strasbourg authority and domestic authorities and noted that the threshold is exacting and will be met only in very exceptional cases. The judges then examined the facts: the appellant had fled domestic violence and had sole family life with her son in the United Kingdom; Lebanese law, as applied, afforded no discretion to refuse transfer of custody and would, in practice, destroy the family life as it existed in the United Kingdom. The House found the case to be very exceptional and that there was a real risk of a flagrant denial of article 8 rights (particularly from the child’s perspective). The appeal was allowed and the Secretary of State’s decision quashed.

Appeal allowed. The House held that, although the threshold for a "foreign case" under article 8 read with article 14 is stringent (requiring a real risk of a flagrant denial that destroys the very essence of the right), the facts of this case were very exceptional. Return to Lebanon would, on the evidence, nullify the family life of the appellant and her son because Lebanese Shari'a-based custody rules would automatically transfer physical custody away from the mother and would not preserve the mother–child family life. The Secretary of State's decision was therefore quashed.

Asylum refusal and initial Immigration Judge decision (8 June 2005); reconsideration and determination by the Asylum and Immigration Tribunal (Determination dated 22 November 2005) refusing the article 8 claim; leave to appeal granted and appeal heard in the Court of Appeal ([2007] UKHRR 1) which dismissed the appeal; allowed on final appeal to the House of Lords ([2008] UKHL 64).