EM (Lebanon) v Secretary of State for the Home Department, ALF and others intervening [2008] UKHL 64, [2008] All ER (D) 206 (Oct)
House of Lords, Lord Hope, Lord Bingham, Baroness Hale, Lord Carswell and Lord Brown, 22 October 2008
There is no pre-determined model of family or family life to which Art 8 of the
European Convention on Human Rights has to be applied. The Article requires respect for the right to such family life as is or may be enjoyed by the particular applicants before the court, always bearing in mind other members.
Frances Webber and Stephanie Harrison (instructed by JM Wilson Solicitors) for the claimant. Monica Carss-Frisk QC and Nicola Greaney (instructed by the Treasury Solicitor) for the secretary of state, Henry Setright QC, Teertha Gupta and Margaret Phelan (instructed by Dawson Cornwell) for the first intervener, ALF. Rabinder Singh QC and Raza Hussain (instructed by Freshfields Bruckhaus Deringer LLP) for the second and third interveners, JUSTICE and Liberty.
The claimant, a Muslim, was a Lebanese national. She had married in Lebanon according to Muslim rites. During her marriage, her husband had subjected her to violence, causing her to suffer a mental breakdown. Their son, the first intervener, was born in July 1996. On the day the son was born, the father had tried but failed to take the child away to Saudi Arabia. He had not seen the child since.
The claimant divorced her husband in Lebanon on the ground of his violent conduct. Under Lebanese law, the father retained legal custody of the child, but the divorce court ruled that the child should remain in the claimant’s care until he reached the age of seven. Thereafter, Islamic law as applied in Lebanon entitled the father to require that physical custody should be transferred to himself or to a male member of his family. After the child’s birthday, the claimant tried to leave Lebanon to avoid having the child taken from her. After the child’s seventh birthday, she lived in hiding. Her former husband issued proceedings in the Lebanese court.
The claimant and her son left Lebanon and arrived in the UK in December 2004. There was unchallenged evidence that under Islamic law as applied in Lebanon in custody cases, where the husband or both parties were Muslim, the father retained legal custody even during the seven-year period and might, for example, decide where the child would live. In the absence of consent by the father, the transfer to him at the stipulated age was automatic so that the court had no discretion in the matter, and might not consider whether the transfer was in the best interests of the child.
The claimant’s application for asylum was refused by the secretary of state, who rejected her claim under Art 8 of the European Convention on Human Rights on the ground that she had not demonstrated a real risk of mistreatment such as to engage Art 8. Her attempts to challenge that decision were unsuccessful and she appealed to the House of Lords.
Lord Bingham of Cornhill:
His lordship referred to R (on the application of Ullah) v Special Adjudicator; Do v Secretary of State for the Home Department [2004] UKHL 26, [2004] 3 All ER 785.
The question was whether, on the particular facts of a foreign case, the removal of the claimant and her son to Lebanon would so flagrantly violate her, his and their Art 8 rights as completely to deny or nullify those rights there. That was a very hard test to satisfy, and a serious or discriminatory interference with the right protected would be insufficient.
The importance of the right to respect for family life had been recognised in Strasbourg and domestic jurisprudence.
Model family
There was no pre-determined model of family or family life to which Art 8 had to be applied. The Article required respect to be shown for the right to such family life as was or might be enjoyed by the particular applicant or applicants before the court, always bearing in mind (since any family had to have at least two members, and might have many more) the participation of other members who share in the life of that family. The particular facts were crucial.
It seemed likely that, following her marriage, the claimant’s immediate family consisted of herself and her husband. But there had been no familial contact between the claimant and her husband since the birth of their child, who had never seen his father since the day he was born. Nor had he had any contact with any of his father’s relatives. Thus, realistically, the only family which existed consisted of the appellant and AF. It was the life of that family which was in issue.
The relationship between the claimant and her son could not be replaced by a new one with the father or his relatives.
It was clear that on return to Lebanon both the claimant’s and the son’s right to respect for their family life would not only be flagrantly violated but would also be completely denied and nullified. In no meaningful sense could occasional supervised visits by the claimant to the son, even if ordered (and there was no guarantee that they would be ordered), be described as family life. The effect of return would be to destroy the family life of the claimant and her son as it was now lived.
The appeal would therefore be allowed. Lord Hope, Baroness Hale, Lord Carswell and Lord Brown delivered concurring opinions.
