International law provides that states have control over the expulsion of aliens. Since the decision of Soering v. UK (1989) 11 E.H.R.R. 439, the Strasbourg Court has developed jurisprudence that tempers this rule in certain limited circumstances. In so-called “foreign” cases, as described in R. (on the application of Ullah) v. Special Adjudicator [2004] 2 A.C. 323, the applicant's claim is that Convention rights will be infringed as a result of treatment the expelled alien is likely to suffer in the receiving foreign country. But how far should the responsibility of a state party to the ECHR extend? The significant decision of the House of Lords in EM (Lebanon) (FC) v. Secretary of State for the Home Department [2008] UKHL 64, [2008] 3 W.L.R. 931 addressed this issue in the context of Article 8 ECHR, the right to respect for family life, and Article 14, the right to non-discrimination. Their Lordships held that in this exceptional case, the prospect of a flagrant denial of the right to respect for family life of a mother and child precluded their return to Lebanon.

EM appealed from an order of the Court of Appeal dismissing her appeal against the decision of the Secretary of State for the Home Department that she and her son, AF, must be returned to Lebanon. The appellant, a Lebanese national, and AF had fled Lebanon in 2004 and claimed asylum. After a violent marriage, the appellant divorced her husband and the child remained in her care until he reached seven years of age. Shari'a law, as applied in Lebanon, then transfers the physical custody of the child to the father or a male member of his family. A court has no discretion to consider the wishes of the child or other relevant factors. If considered appropriate, a court may order that the mother should have access during supervised visits. AF had already passed the age of custodial transfer.

At first instance, EM had unsuccessfully argued that she was a refugee and that her human rights would be violated if she were forced to return. In the House of Lords, as in the Court of Appeal, the appeal was limited to issues relating to Articles 8 and 14 of the ECHR. Since the decision of Ullah in 2004, it has been accepted in principle, that ECHR rights other than Articles 2 or 3 could be engaged in a “foreign” case but that the threshold of success would be a very high one. In applying the test as laid down in Ullah, Carnwarth L.J. in the Court of Appeal in EM (Lebanon) [2006] EWCA Civ 1531 commented that the various formulations used to describe the test, such as “flagrant denial or gross violation” and “a complete denial or nullification”, lacked clarity, at [38]. The members of the House of Lords agreed that while such differing formulations had been used, all of them referred to a single test. Lords Carswell, Hope and Baroness Hale cited with approval the more recent decision in Mamatkulov and Askarov v. Turkey (2005) 41 E.H.R.R. 494: “what the word ‘flagrant’ is intended to convey is a breach … which is so fundamental as to amount to a nullification, or destruction of the very essence, of the right guaranteed …” (Judges Bratza, Bonello and Hedigan, at [537]). Lords Bingham and Hope considered any attempt to paraphrase the test would risk confusion (Lord Bingham, at [35]) and should be resisted (Lord Hope, at [4]).

After clarifying the threshold test, the court applied it to the facts of this particular case and concluded that the removal of the appellant and her son to Lebanon would so flagrantly violate her and his Article 8 rights as to completely deny or nullify those rights. Their Lordships unanimously agreed that the only family life experienced by AF had been with his mother and the effect of removal would be to destroy the very essence of that right. Lord Bingham, at [43] and Baroness Hale, at [48–49], emphasised the importance of hearing the child's perspective as a separate consideration.

The discrimination issue proved more difficult and the Lords had to look beyond the mere wording of the threshold test for guidance. The Lords, with the exception of Baroness Hale, agreed that save in “exceptional circumstances, aliens cannot claim any entitlement upon the Convention to remain here to escape from the discriminatory effects of the system of family law in their country of origin”: (Lord Hope, at [13]). Lord Hope analysed the Strasbourg decisions. First, he drew upon the comments of the Grand Chamber of the European Court in N v. UK (Application No 26565/05 (unreported) 27 May 2008), which found that the expulsion from the UK of a woman suffering from an AIDS-defining illness, for which treatment would not be available in Uganda was not contrary to Article 3. He noted a distinction had been drawn between, on the one hand, social and economic rights, and, on the other, civil and political rights and that Article 3 does not require a contracting state to guarantee unlimited healthcare to all aliens. Secondly, referring to F v. UK (Application No. 17341/03) (unreported) 22 June 2004 (an Iranian national who feared persecution as a homosexual if removed to Iran), a further distinction was drawn between guarantees of fundamental importance and qualified civil and political rights such as freedom of religion or rights to family life. The European Court had concluded that a contracting state, for pragmatic reasons, could not be expected to guarantee such qualified rights for individuals “outside the umbrella of the Convention”, at [13].

In order to distinguish between cases where a breach of Articles 8 and 14 will be flagrant and those where it will not, Lord Hope identified the phrase “compelling humanitarian grounds” taken from N v. UK as the key, at [17]. By adopting this standard, the appellant's argument that Lebanese family law as it applied in her particular case was discriminatory, failed. According to Lord Bingham, Lebanese family law “reflects a religious and cultural tradition … observed throughout much of the world. This country has no general mandate to impose its own values on other countries who do not share them”, at [42]. Arguably, there is a fine line between stating that the court is not judging the discriminatory character of Shari'a law while concluding that a flagrant breach of the right to family life is likely if the appellant and her son are returned to Lebanon, at [42]. The majority appeared unwilling to pass judgment on such a politically sensitive issue. In contrast to the majority, Baroness Hale viewed the arbitrary and discriminatory laws of Lebanon as the reason for the real risk to Article 8 rights and why it was not possible to justify the interference, at [47].

This decision is highly significant as it is the first time in either the domestic or Strasbourg jurisprudence that a claim in a foreign case has succeeded on the basis of Article 8. Although the Lords have attempted to clarify the appropriate test in such cases, the distinctions drawn between different types of rights claims and the importing of “compelling humanitarian grounds” from Article 3 cases has resulted in considerable uncertainty concerning the ambit of “foreign” cases. It is disappointing that the majority rejected the appellant's arguments that discrimination and inequality in family law can lead to a flagrant breach of Convention rights.