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Another take on Soering: House of Lords upholds state responsibility for denial of family life upon expulsion

On 22 October, the House of Lords upheld the appeal, in EM (Lebanon) v Secretary of State for the Home Department [2008] UKHL 64, where a mother sought to challenge her removal to Lebanon on the grounds that it would generate a “flagrant denial of her right to family life” under Article 8 ECHR (and a Press Release, here). The appellants’ case was that “they ran a real risk of a flagrant denial of justice” through the violation of the “right to remain [in the UK] under article 8 of the European Convention on Human Rights read in conjunction with article 14” if they were to be removed from the country to Lebanon (para. 2-3 of the judgment).

Lord Hope cited the case of Mamatkulov and Askarov v Turkey (2005) 41 EHRR 494 of the European Court where political dissidents claimed that they would not receive a fair trial if they were extradited to Uzbekistan because, among other things, torture was routinely used to secure guilty verdicts and because suspects were frequently denied access to a lawyer. The judges in this case upheld the following:

“In our view, what the word ‘flagrant’ is intended to convey is a breach of the principles of fair trial guaranteed by article 6 which is so fundamental as to amount to a nullification, or destruction of the very essence, of the right guaranteed by that article.”

The Court admits that they do not possess an intention to undertake to guarantee to men and women throughout the world the enjoyment without discrimination of the rights set out in the Convention or in any other international human rights instrument. Alternatively, the House confirmed that “[e]verything depends on the extent to which responsibility can be placed on the Contracting States” (para. 14 of the judgment). Therefore, the Court endured the following:

“The question to be determined in this appeal is accordingly this: whether, on the particular facts of this case, the removal of the appellant and AF to Lebanon will so flagrantly violate her, his and their article 8 rights as to completely deny or nullify those rights there. This is, as Ms Carss-Frisk QC for the Secretary of State emphasised, a very hard test to satisfy, never found to be satisfied in respect of any of the qualified Convention rights in any reported Strasbourg decision.” (para. 38)

The decision was also distinguished from the case of N v United Kingdom (App No 26565/05) (unreported) (judgment of 27 May 2008), where a Ugandan HIV/AIDS patient was refused asylum in the UK and the ECHR’s Grand Chamber upheld that the expulsion, which prevented the applicant from continuing to benefit from the medical services available in the territory of the state, was not sufficient to give rise to a breach of Article 3 ECHR. This is because the Court has never had the intention to provide protection against disparities in social and economic rights (para. 7-9 of the EM judgment). The Court notes, in addition, that it would not seek to provide protection against expulsion in the case of violations of qualified obligations in the area of civil and political rights (para. 10 of the EM judgment). In a different case it was also declared that Strasbourg cannot be seen to impose an obligation on member states to act as indirect guarantors of the freedom of worship for the rest of the world (para. 12 of the EM judgment).

The Court concluded, after a series of deliberations on the constitution of the test to be used for the assessment of the gravity of the violation of the right resulting from expulsion, that in this case,  where the only family life that this child has ever known is with his mother, the family would be destroyed  as a result of expulsion for reasons, which could never be justified under article 8(2) because they are purely arbitrary and pay no regard to the child’s interests. Baroness Hale’s judgment placed a laudable emphasis on the child’s best interests:

“The violation of his right is in my view of greater weight than the violation of his mother’s right. Children need to be brought up in a stable and loving home, preferably by parents who are committed to their interests. Disrupting such a home risks causing lasting damage to their development, damage which is different in kind from the damage done to a parent by the removal of her child, terrible though that can be.” (para. 48)

All in all, the House’s judgment contributes significantly to the extension of the spatial application of human rights to non-nationals vis-à-vis the state, which is obliged under the ECHR to ensure that all rights are enjoyed by all those within its jurisdiction, particularly where it is able to prevent a flagrant violation, denial and nullification of one of the most fundamental rights in an exceptionally heart-breaking situation.  Notably, the House has admitted that such a conclusion would not have been reached just in any case, and that future instances would be examined upon the facts – in other words, as per Lord Hope, “where the humanitarian grounds against removal are compelling, it must follow that there is an obligation not to remove” (para. 17 of the judgment).

Prospectively, it is yet to be seen how far this rationale, based on the gravity of the violation and the exceptionality (and compassionate nature) of the facts of the case, could lead in future  determinations. It is not untenable that such a decision, stregthening the core of the right to family life in cases of expulsions or failed asylum-seekers whose applications took years to process, could become a protective tool for those whose lives are devastated due to removal from the UK. More over, the  “flagrancy test” is yet to be considered by Strasbourg, who are being awaited by the House before the latter are ready to adopt any conclusive approach in this case. If such a conclusion would be reached by the European Court on the basis of an argument in favour of ‘indirect state responsibility’ produced by the act of expulsion to another country which will engage in the violation of these rights, it is envisaged to produce a legal tool of comparable force to the rationale in Soering v United Kingdom 11 ECHR (Series A) (1989) – a landmark case where the Court upheld a violated of Article 3 ECHR as a result of an extradiction to the US to face death penalty charges – which has since produced many ripples in the pond.

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