EM (Lebanon) (FC) (Appellant) v Secretary of State for the Home Department (Respondent)

Removal to a non-Convention country may engage a qualified Convention right where there is a real risk of a flagrant violation. The violation must be so fundamental that it nullifies or destroys the very essence of the right. This is a stringent threshold, ordinarily satisfied only in very exceptional cases.

In assessing family life under article 8, the decision-maker must examine the family life actually enjoyed and separately consider every affected family member, including each child. A foreign legal system's discriminatory character does not alone satisfy the threshold. Removal is prohibited where its concrete effect would destroy the only family life a child has known and compelling humanitarian circumstances establish the requisite real risk.

The appellant, a Lebanese mother, fled to the United Kingdom with her son. Under the Islamic family law applicable in Lebanon, the child's physical custody passed automatically at seven to his father or another male paternal relative. The court had no discretion to consider the child's welfare. The father had been violent towards the appellant and had had no meaningful contact with the child.

The Secretary of State refused asylum and rejected the human-rights claim. An Immigration Judge and the Asylum and Immigration Tribunal dismissed the appeal. The Court of Appeal, [2006] EWCA Civ 1531, also dismissed it, holding that the anticipated restrictions would not completely nullify the mother's family life because some supervised contact might remain.

The issue before the House was whether removal created a real risk of a flagrant violation of the mother's and child's rights under article 8, alone or with article 14.

1. Appeal allowed unanimously. Lord Bingham delivered the principal speech. Lord Carswell agreed with his reasons and conclusions; Baroness Hale added reasoning from the child's perspective; and Lord Hope and Lord Brown reached the same result. The orders below were set aside and the Secretary of State's removal decision was quashed.
2. Per Lord Bingham, a qualified Convention right can be engaged in a foreign case, but the threshold is exceptionally high. The question is whether removal creates a real risk of a violation so flagrant that it completely denies or nullifies the right, or destroys its very essence. Those expressions describe one test, not competing quantitative and qualitative standards. Lord Hope adopted the same formulation from Mamatkulov and Askarov v Turkey (2005) 41 EHRR 25. Lord Carswell stressed that retaining a mere vestige of family contact does not necessarily defeat the claim.
3. Per Lord Bingham, article 8 protects the family life actually enjoyed by the particular people concerned. The appellant and her son constituted the only family that had existed for several years. Their relationship involved deep love and mutual dependence. Occasional supervised meetings could not meaningfully preserve that family life. Removal would transfer the child to a violent father or paternal relatives whom he did not know and would therefore destroy the family life of mother and child.
4. Baroness Hale held that the effect on the child carried particular weight. The mother's care was the only family life he had ever known. Automatic removal from her, without regard to his interests, would destroy the essence of his article 8 right and could not be justified under article 8(2). The discriminatory Lebanese rules created the real risk, but the decisive matter was their effect on the child's existing family life.
5. Per Lord Bingham, the arbitrary and discriminatory nature of a foreign custody regime does not by itself establish a flagrant violation. The Convention does not give the United Kingdom a general mandate to impose its values on non-Convention states. Lord Hope and Lord Brown likewise treated the highly exceptional facts and compelling humanitarian effects, rather than disparity between legal systems, as decisive.
6. The Secretary of State and immigration tribunals must separately consider the article 8 rights of everyone affected by a decision. This includes ascertaining and communicating a child's views where appropriate. Separate consideration does not normally require separate representation, although representation may be necessary where a genuine conflict exists.

1. House of Lords: Allowed the appeal unanimously, set aside the orders below and quashed the Secretary of State's removal decision: [2008] UKHL 64.
2. Court of Appeal: Dismissed the appeal, with each member expressing misgivings: [2006] EWCA Civ 1531; [2007] UKHRR 1.
3. Asylum and Immigration Tribunal: Rejected both the asylum claim and the claim under article 8, holding that removal to Lebanon would not breach the Convention.
4. Immigration adjudication: The Immigration Judge rejected the asylum and article 8 claims. A Senior Immigration Judge subsequently ordered reconsideration because the human-rights implications and the child's interests arguably had received inadequate attention.
5. Secretary of State: Refused the asylum application and rejected the article 8 claim by decision dated 21 February 2005.