SS (Malaysia) v Secretary of State for the Home Department

Removal will not ordinarily breach an alien’s Convention rights merely because family law in the receiving state is religiously or culturally discriminatory by United Kingdom standards. The decisive question is the effect of removal. Wholly exceptional circumstances may arise where the foreign legal regime would destroy or nullify existing family life.

A restriction on a parent sharing her faith with a child did not meet that threshold where mother and child would remain together. The prospect of male circumcision likewise did not establish a Convention breach on the findings of supportive family care and cultural context.

The appellant, a Malaysian national and Roman Catholic convert, brought her young son to the United Kingdom after her husband converted to Islam. She claimed asylum and relied on her fear that, on return to Malaysia, the father’s wish for the child to be raised as a Muslim, and circumcised, would prevail.

The First-tier Tribunal dismissed her appeal. It found no risk of physical harm or likely loss of custody, and held that return was proportionate and was in the child’s best interests. The Upper Tribunal found no error of law and dismissed her further appeal.

Before the Court of Appeal, the central issue was whether the likely religious upbringing and circumcision of the child in Malaysia would amount to a flagrant breach of the appellant’s or child’s Convention rights, or make return contrary to the child’s best interests.

1. Appeal dismissed unanimously. The appellant had not shown that return to Malaysia would amount to a flagrant denial of her Convention rights, of the child’s rights, or of the child’s best interests.

2. The court applied the effects-based approach in EM (Lebanon) v Secretary of State for the Home Department [2008] UKHL 64. A person subject to removal cannot ordinarily remain in the United Kingdom merely to avoid family law in the receiving state which is discriminatory or objectionable by domestic standards. The exceptional case is one in which return would destroy or nullify the existing family life.

3. That threshold was not met. Although the appellant would be unable to bring the child up as a Christian, and this would cause her great sorrow, she and the child would continue to share family life. The restriction did not fundamentally undermine that relationship or flagrantly deny her ability to practise her religion. The child, then aged six, had not formed an independent religious faith and could make his own religious choices when older.

4. The court left open whether male circumcision might in some circumstances infringe articles 3 or 8 of the European Convention on Human Rights. On the tribunal’s findings, however, it gave no basis for resisting return. The child would have his father’s emotional support, would conform to the expectations of the society in which he would live, and could continue to receive his mother’s loving care. Male circumcision could not be equated with female genital mutilation: see K v Secretary of State for the Home Department, Fornah v Secretary of State for the Home Department [2006] UKHL 46.

5. Primary consideration of a child’s best interests is important, but how it is expressed depends on the issues. There was no serious structural flaw in the First-tier Tribunal’s approach; moreover, that complaint had not been advanced in the Upper Tribunal or covered by permission to appeal.

• Court of Appeal (Civil Division): Dismissed the appellant’s appeal and upheld the Upper Tribunal’s decision.
• Upper Tribunal (Asylum and Immigration Chamber): Upper Tribunal Judge Perkins held that the First-tier Tribunal had made no error of law and dismissed the appeal.
• First-tier Tribunal: Designated Immigration Judge Digney dismissed the appeal against the refusal of asylum and related human-rights protection.