Muslim mother wins right to stay in the UK after asylum victory at Lords

A Muslim mother who fears having her child taken from her under Sharia if sent back to her homeland won the right to stay in the UK from the House of Lords yesterday.

Five law lords ruled that the human rights of the Lebanese woman, EM, and her 12-year-old son, AF, who cannot be named for legal reasons, would be “flagrantly violated” and “nullified” if forced to return to Lebanon.

The 36-year-old Muslim claimed asylum in the UK in December 2004, saying that she had divorced her husband because of his violence and fled from Lebanon in order to keep her child.

Under Sharia, the woman’s “violent” ex-husband would automatically be granted full custody rights.

But yesterday her challenge to a Court of Appeal ruling that upheld the Home Secretary’s decision refusing asylum was upheld.

And in critical observations on Sharia as applied in Lebanon, one of the law lords, Lord Hope of Craighead, said that it was “created by and for men in a male-dominated society”.

He added: “There is no place in it for equal rights between men and women” and was by our standards “arbitrary” because it did not allow for exceptions; and was “discriminatory” because it denied women custody of their children after a certain age, simply because they were women.”

The case for allowing mother and child to remain in the UK were “compelling,” he said.

The ruling in the case, which was backed by campaign groups Justice and Liberty, overturns earlier rulings by the Court of Appeal, by the Asylum and Immigration Tribunal and the Home Secretary, that returning the woman to Lebanon would flagrantly violate their rights to family life.

After the ruling, James Welch, Liberty’s legal director, said: “How can the Government speak of equal treatment in one breath and seek to deport mother and child to face separation under Sharia law in another?

“The law lords have rightly upheld basic protections which must be available to us all.”

Quashing the Home Secretary’s decision, Lord Bingham of Cornhill, said of EM: “Her evidence, accepted as true in these proceedings, is that during her marriage her husband subjected her to violence, beating her, trying to throw her off a balcony and trying, on one occasion at least, to strangle her.

“She had a mental breakdown. Her husband was imprisoned for theft from her father’s shop and, later, for failing to support AF.

“He ended her first pregnancy by hitting her on the stomach with a heavy vase, saying he did not want children.

“On the day AF was born he came to the hospital with his family to take the child away to Saudi Arabia, but was prevented from doing so. He has not seen AF since.”

The father retained legal custody of AF, but the divorce court ruled that the child should remain in the mother’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 divorce, EM supported herself and AF by running a hairdressing salon. After AF’s seventh birthday, she moved out of her parents’ house and lived in hiding before fleeing the country.

Lord Bingham said: “It appears that, if she returned to Lebanon, she would be at risk of imprisonment on a charge of kidnapping.”

There was unchallenged evidence that Islamic law, as applied in Lebanon, meant that the father retained legal custody of children and the courts had no discretion in the matter.

“As a result, women are often constrained to remain in abusive marriages for fear of losing their children.”

If the father were found to be unfit as a parent, the child would be passed to the paternal grandfather or some other member of the father’s extended family, not to the mother.

In this situation the mother might, or might not, have contact with the child.

Lord Bingham said that in his opinion it was clear that on return to Lebanon “both the appellant’s and AF’s right to respect for their family life would not only be flagrantly violated but would also be completely denied and nullified”.

This would be in breach of their right to a private and family life under Article 8 of the European Convention on Human Rights.

He said: “The evidence makes plain that the bond between the two is one of deep love and mutual dependence.

“It cannot be replaced by a new relationship between AF and a father who has inflicted physical violence and psychological injury on the mother, who has been sent to prison for failing to support him, whom he has never consciously seen and towards whom AF understandably feels strongly antagonistic.

“Nor can it be replaced by a new relationship with an unknown member or members of the father’s family.”

Lord Bingham said that Lebanon was not party to the European convention, and the court had no standing to enforce observance of any other international laws to which Lebanon was party.

“Its family law reflects a religious and cultural tradition which, in one form or another, is respected and 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.”

The judge questioned whether EM could have won her case by relying on the “arbitrary and discriminatory” nature of the Lebanese regime dealing with child custody, had she not shown that return would deny and nullify her human rights.

Also allowing the appeal, Lord Hope of Craighead said: “The close relationship that exists between mother and child up to the age of custodial transfer [seven] cannot survive under that system of law where, as in this case, the parents of the child are no longer living together when the child reaches that age.

“There is a real risk in all these cases that the very essence of the family life that mother and child have shared together up to that date will be destroyed or nullified.”

Lord Hope said that Sharia, as it was applied in Lebanon, “was created by and for men in a male-dominated society”.

He added: “There is no place in it for equal rights between men and women. It is, as Lord Bingham points out, the product of a religious and cultural tradition that is respected and observed throughout much of the world.

“But by our standards the system is arbitrary because the law permits of no exceptions to its application, however strong the objections may be on the facts of any given case.

“It is discriminatory too because it denies women custody of their children after they have reached the age of custodial transfer simply because they are women.”

The case for allowing mother and child to remain in the UK were “compelling.”

Baroness Hale of Richmond, Lord Carswell and Lord Brown of Eaton-under-Wood also agreed the appeal should be allowed and the Home Secretary’s decision quashed.