In the case of EM (Lebanon) v SSHD [2008] UKHL 64 the House of Lords looked at Article 8 again (having done so earlier this year as well) and delivered another landmark judgment. It is believed to be the first time in European legal history that a higher court has found that a future, foreign breach of a non-absolute human right would be sufficiently serious so as to prohibit the victim’s removal to the country where there is a real risk the breach would take place.

The Lords were hearing an appeal from the judgment of the Court of Appeal in EM (Lebanon) [2006] EWCA Civ 1531. The facts were that the appellant had uncontradicted expert evidence that her child would automatically be removed from her care should she be returned to the Lebanon and given into the care of the father or the father’s family. She resisted removal to Lebanon on the basis that this would breach her Article 8 right to family life. The Court of Appeal had, with misgivings, dismissed the appeal on the basis that there would not be a complete nullification of the mother’s family life with the child as there was no evidence she would not be allowed contact with the child.

In the House of Lords, one novel feature of the case was that the child in question was permitted to intervene in the proceedings and was represented by a leading family QC and family and immigration juniors. Argument was heard by their Lordships from the child’s perspective and because of the earlier judgment in Beuko-Betts the effect on the child was to be considered directly. There was suggestion (see paragraph 46 of Baroness Hale’s judgment) that the breach caused by separation would have more of an impact on the child even than on the mother because the child was more dependent on the mother than the mother on the child.

The Lords held that the test in such cases, i.e. an extra-territorial or foreign breach of a non-absolute human right such as Article 8, is that of flagrant denial, gross violation or complete nullification. These phrases were all reflections of the same test, they did not suggest different standards.

The Lords also emphasised that in Article 8 family life cases (this would apply equally in many private life cases) the issue is the effect on the relationship that will be affected by the decision under challenge. Substitution of an alternative relationship in the future is no answer to the termination of the relationship the claimant seeks to protect. This offers useful authority to answer the common Home Office submission that a person can start up new family life relationships with other people if they are removed from the UK.

The judgments make the point that the rights of children need to be separately considered and also contemplate that it may be appropriate for children to be separately represented in some immigration proceedings. This is already commonplace in family law proceedings. Both Lord Bingham and Baroness Hale stress that this will be appropriate infrequently, and only where the interests of the child and adult are potentially or actually in conflict. In this particular case the mother had serious credibility issues whereas the child was not tainted in the same way and arguably the effect of separation would be greater on the child than on the mother. See paragraphs 43 and 49 of the judgments of Lord Bingham and Baroness Hale respectively. Baroness Hale goes as far as to encourage CAFCASS and social services departments to get involved in immigration proceedings where appropriate.

This is a fascinating judgment and should have a significant effect on all cases where a child is a party to proceedings or is otherwise going to be affected by the immigration decision under challenge.