SS (Malaysia) v Secretary of State for the Home Department

This appeal raises some sensitive questions about a child’s religious upbringing. The appellant is a national of Malaysia who was brought up as a Sikh but converted to Christianity as an adult and was received into the Roman Catholic church. In December 2006 she married another citizen of Malaysia who is of Nigerian origin. At the time of their marriage he was also a Roman Catholic, but in early 2010 he became interested in Islam and eventually indicated his intention to convert. The couple have one child, a boy called C, who was born in May 2006. He was baptised and received into the Roman Catholic church as a baby and has been brought up as a Catholic.

The appellant was very concerned at the prospect that her husband might convert to Islam and insist that C be brought up as a Muslim. She did not want that to happen, so in May 2010 she travelled to the United Kingdom with C to spend some time with her sister. She thought that would give her husband time to reflect on what he was doing. She did not tell him that she was planning to go abroad and not surprisingly, when he found that she had left taking their son with her, he contacted the police. By the end of 2010 the appellant’s husband had become a convert to Islam.

The appellant entered this country on 14^th May 2010 and was granted 6 months’ entry clearance. On 3^rd November 2010 she visited Paris briefly, returning the next day. She was then granted another 6 months’ entry clearance. On 27^th May 2011 the appellant claimed asylum on the grounds that if she were returned to Malaysia she would be arrested by the authorities and would be at risk of ill-treatment from her husband, who would insist that C be brought up as a Muslim. On 23^rd June 2011 the Secretary of State rejected the appellant’s claim on the grounds that her fears did not arise from any of the matters covered by the Refugee Convention and that she did not qualify for humanitarian protection.

The appellant’s appeal to the First-tier Tribunal was heard by Designated Immigration Judge Digney on 2^nd November 2011. He accepted her account, but dismissed her appeal on the grounds that she was not at risk of ill-treatment at the hands either of the authorities or of her husband. He also held that removal would not disproportionately interfere with her rights under article 8 of the European Convention on Human Rights (“the Convention”) and that it was in the best interests of C to be brought up by both his parents. He accepted that there was at least a reasonable degree of likelihood that, if he were returned to Malaysia, C would be brought up as a Muslim, but he held that any dispute over his religious upbringing should be decided by the courts of his own country.

The appellant was given permission to appeal to the Upper Tribunal where the matter came before Upper Tribunal Judge Perkins. The appellant relied heavily on the decision of the House of Lords in EM (Lebanon) v Secretary of State for the Home Department [2008] UKHL 64, [2009] 1 A.C. 1198, but the judge did not think that the facts of that case were at all comparable. He rejected the suggestion that Designated Immigration Judge Digney had failed to take proper account of the fact that any decision about C’s religious upbringing would probably be made by a Syariah (i.e. Shari’a) court and that such courts show a predisposition in favour of Islam. Although he recognised that the family courts of this country would adopt a different approach, he did not think that it was necessary for that reason for him to take a course which would result in the imposition of the same values or remedies.

Upper Tribunal Judge Perkins accepted that the appellant’s husband would wish to have C circumcised, but did not regard that as a reason for allowing him to remain in this country. He also noted that the appellant’s concern arose from her fear that bringing up her child as a Muslim would be a precursor to separating him from her altogether. However, he found that she was not likely to be separated from her son in the short or medium term. The most likely outcome of the appellant’s removal was that C would be allowed to live with his mother until he was about 15, but that she would not be allowed to bring him up as a nominal Christian. He recognised that that was an imperfect solution to a difficult problem, but in his view it was not one that involved unlawful interference with the rights of the appellant or C himself. He therefore held that there had been no error of law on the part of the First-tier Tribunal and dismissed the appeal.

The First-tier Tribunal found that the appellant would not be at risk of physical harm if she were returned to Malaysia and was unlikely to lose custody of C. Miss Chapman sought to challenge the latter finding by reference to the evidence of an expert in Malaysian law whose report had been put before the tribunal, but that report provided no more than isolated examples of instances in which disputes over custody had been decided adversely to the mother. It provided no sound basis for challenging the tribunal’s finding. In those circumstances the appeal to this court ultimately turns on the significance to be attached to the fact that his father’s wish that C be brought up as a Muslim is likely to prevail over that of the appellant (and that in consequence the appellant will be prevented from exposing him to the practice of her own faith) and that as a result he will have to undergo circumcision. Miss Chapman invited us to consider these matters separately from the different points of view of the appellant and of C respectively.

Miss Chapman submitted that to deny the appellant the opportunity of teaching her son about her own religious faith would amount to a flagrant breach of her right to respect for her private and family life under article 8 of the Convention and of her right under article 9 to practise her religion, so that the case falls within the principles enunciated in EM (Lebanon). That, however, was a very different case, because there was a finding that returning the appellant and her child to Lebanon, where, under Shari’a law as practised in that country, custody automatically passed to the father or one of his male relatives when the child reached the age of seven, would have resulted in the mother’s having no more than occasional supervised contact with him. It could truly be said, therefore, that to return the appellant and her child to Lebanon would destroy the family life together which they currently enjoyed. There are no comparable findings in the present case.

The importance of EM (Lebanon) for present purposes lies in the court’s approach to problems of this kind. Although he described the effect of Shari’a law in this context as arbitrary and discriminatory by our own standards, Lord Hope recognised that it is the product of a religious and cultural tradition that is respected and observed throughout much of the world. He concluded that

“7.

. . . the Strasbourg court’s jurisprudence indicates that, in the absence of very exceptional circumstances, aliens cannot claim any entitlement under the Convention to remain here to escape from the discriminatory effects of the system of family law in their country of origin.”

Later he said:

“14.

. . . Everything depends on the extent to which responsibility can be placed on the contracting states. But they did not 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. Nor did they undertake to alleviate religious and cultural differences between their own laws and the family law of an alien’s country of origin, however extreme their effects might seem to be on a family relationship.

15.

The guidance that is to be found in these decisions indicates that the Strasbourg court would be likely to hold that, except in wholly exceptional circumstances, aliens who are subject to expulsion cannot claim an entitlement to remain in the territory of a contracting state in order to benefit from the equality of treatment as to respect for their family life that they would receive there which would be denied to them in the receiving state. The return of a woman who arrives here with her child simply to escape from the system of family law of her own country, however objectionable that system may seem in comparison with our own, will not violate article 8 read with article 14. Domestic violence and family breakdown occur in Muslim countries just as they do elsewhere. So the inevitable result under Shari’a law that the separated mother will lose custody of her child when he reaches the age of custodial transfer ought, in itself, to make no difference. On a purely pragmatic basis the contracting states cannot be expected to return aliens only to a country whose family law is compatible with the principle of non-discrimination assumed by the Convention.”

In their Lordships’ view the test for identifying those cases in which there can be said to be a flagrant violation in Strasbourg terms of Convention rights lies in assessing the effects of the proposed action, in that case the removal of the appellant and her son to Lebanon. In that case the effect of removal, and thus of requiring the appellant and her child to submit to Shari’a law, would have been to destroy or nullify the family life that they currently shared. In the present case, by contrast, although it would no doubt be a matter of great sorrow to the appellant for C to be brought up as a Muslim and for her to be unable to share her Christian faith with him, I do not think that such a restriction could be said to undermine fundamentally the family life which they currently share and will continue to share. Nor would it involve a flagrant denial of her right to practise her own religion.

C himself is only 6 years of age and although he has been baptised a Christian and admitted into the Roman Catholic church, there is no reason to think that he has as yet formed any independent religious faith. He will be able to make his own decisions about religious matters when he grows up. Removing him with his mother to Malaysia where he can be brought up by both parents in the country of his nationality would not interfere with any of his own Convention rights and is clearly in his best interests.

Closely related to the question of religious upbringing is that of circumcision. Upper Tribunal Judge Perkins accepted that Muslim boys are expected to be circumcised and assumed that the appellant’s husband would want C to undergo that procedure for religious and cultural reasons. Miss Chapman, however, submitted that the English courts would be unlikely to bow to the father’s wishes in that respect unless the mother also consented. She accepted that circumcision could be carried out without violating the child’s rights under the Convention, but only if it were carried out in the context of loving family relationships and was supported by both parents. Those conditions, she said, were not satisfied in the present case, since the appellant was strongly opposed to the procedure. She submitted that in those circumstances it would not be in the child’s best interests to return him to Malaysia where his father’s wishes would prevail over those of his mother.

I find it difficult to see how C’s circumcision would involve any infringement of the appellant’s Convention rights, so the question has to be considered only from the perspective of C. Male circumcision is a widespread religious and cultural practice which has ancient origins. It is usually, though not invariably, carried out at a very young age when the child is unable to understand what is involved or to express any view about it. Although invasive in nature and not commanding universal approval, it is regarded as an acceptable practice among communities of all kinds, provided it is carried out under appropriate conditions. These may include appropriate medical attention and the loving support of parents and close family members. It cannot be compared to other cultural or religious practices, such as female genital mutilation, which involve a far more serious violation of the physical integrity of the body and an expression of subservience (see K v Secretary of State for the Home Department, Fornah v Secretary of State for the Home Department [2006] UKHL 46, [2007] 1 A.C. 412, paragraph 93 per Baroness Hale).

It is not necessary for the purposes of this appeal to decide whether circumcision may under certain circumstances involve an infringement of the child’s rights under article 3 or 8 of the Convention. The tribunal’s findings make it clear that in this case C would have the positive emotional support of his father and that he would be conforming to the broad expectations of the culture and society in which he would grow up. It is likely that that would be regarded as a significant factor by the courts of this country, if he were being brought up here: see Re U (A child) (Court of Appeal, 25^th November 1999, unreported). There is no reason to think that he would not continue to receive loving care and support from the appellant, despite her opposition to the procedure itself.

Finally, Miss Chapman sought to challenge the decision on the grounds that the First-tier Tribunal had failed to begin its enquiry by giving distinct consideration to the best interests of C, but had instead taken them into consideration only as part of its assessment of proportionality. The decision was therefore, as she put it, “structurally incorrect”. The importance of giving primary consideration to the best interests of any child likely to be affected by the tribunal’s decision is now well recognised, but the way in which that is expressed may vary from case to case depending on the issues. In this case it was obvious that, leaving aside any questions relating to his religious upbringing, it was in C’s best interests to be brought up by both parents. The only important questions were, therefore, those to which I have already referred. In my view the decision of the First-tier Tribunal was not seriously flawed in this respect, but in any event this criticism was not advanced before the Upper Tribunal, nor is it one in respect of which permission was given to appeal to this court.

The real complaint in the present case is that the courts of the appellant’s own country resolve disagreements relating to the religious upbringing of children in a way which differs from our own and which she finds uncongenial. To return her and her son to her own country under those circumstances would not in my view amount to a flagrant denial of her Convention rights or those of her son; nor would it be contrary to his best interests. Accordingly, I would dismiss the appeal.

I agree.

I also agree.