Islam is in the news a lot. Muslims consider their faith to be a religion of tolerance but some of its faces are hardly that.
The West’s obsession with Muslims and how terrible we are does not help things either. But given that men enjoy a blanket exemption, I could never understand why some people think that “devout” Muslim women owe an obligation to cover their faces and figures?
In the instant case, the claimants argued that because of the French law (La Loi No 2010-1192) that bans wearing (or forcing someone else to wear) the burka in public, removing a ten-year old asylum seeking Muslim girl (M) and her father (F) from the UK to France to have her refugee status determined there would amount to degrading treatment contrary to Article 3 (anti-torture and degrading treatment) and Article 9 (freedom of thought, conscience and religion) of the European Convention on Human Rights. Hickinbottom J, however, found no evidence that France intended to degrade M. The court also held that M would not be caused serious distress, and her potential treatment in France did not come close to approaching the high threshold required to engage Article 3 ECHR.
Citizens of the Islamic Republic of Iran, F and M (the claimants) sought judicial review of the Secretary of State for the Home Department’s decision to remove them to France to have their asylum claim decided in that country. The pair claimed asylum in the UK after entry through France (which accepted its duty to determine their claim). F gave evidence that whilst M did not always wear a burka, she planned to wear it more frequently (and ultimately always in public) as she grew older. Hence, the SSHD’s decision violated M’s Convention rights because under French law clothing intending to hide the face in public is prohibited. For the SSHD, the claimants’ human rights claim was clearly unfounded and she certified it as such.
The claimants principally submitted that:
- Because of the prohibition on wearing of the burka in public, which M considered to be a central tenet of her faith, France was in breach of the Convention (especially Article 3 and Article 9) and therefore the UK would breach the Convention by removing them.
- Remaining in the UK was in M’s best interests because the French, who entered into a reservation under the UN Convention on the Rights of the Child 1989, felt they were not bound to treat children’s interests as a primary consideration in any state decision-making. So the SSHD had not assessed the impact of removing M.
Hickinbottom J’s Judgment
The Open Society’s Unveiling the Truth: Why 32 Muslim Women Wear the Full-face Veil in France informed the court’s use of terminology in connection with the garments worn by some Muslim women. The court relied on this handy source to clarify that:
39. The hijab is a piece of cloth covering the hair, ears and neck, leaving the face uncovered. The jilbab has the appearance of a loose-fitting coat that covers the whole body except the face. The niqab is a veil that covers a woman’s head, including the face, leaving only the eyes visible, which can be worn with other garments that might cover other parts of the body, but not the face. The burka is a loose garment that covers the entire body, including the face and eyes, having a mesh screen which veils the eyes but enables the wearer to see.
Hickinbottom J held as follows.
Applying the decision of the House of Lords in R (Begum) v Denbigh High School Governors  UKHL 15,  1 A.C. 100, the court would consider the compliance of the French law with the ECHR “only with extreme caution”: paras 78–81. The UK did not intend to prohibit veils and politicians were concerned that such a measure would undermine Britishness: para 91. That, however, was irrelevant. Despite the fact that the Convention established international norms, states were not prevented from providing more generous rights nationally. But following Lord Bingham’s para 20 treatment of the issue in R (Ullah) v Special Adjudicator  UKHL 26,  2 A.C. 323 “it is vital that such national standards are not confused or elided with Convention standards” as “purporting to interpret Convention rights more generously than Strasbourg would undermine the whole international nature of the Convention”: para 91.
The sole basis by virtue of which a transfer under Council Regulation (EC) No 343/2003 or “the Dublin II Regulation” can be resisted on human rights grounds arises in circumstances where there is actual or potential degrading treatment within the meaning of Article 3. For Hickinbottom J, there was no evidence that either France or the UK intended to degrade F or M. The claimants would not be at any risk of prosecution or other adverse treatment by France whose public and (especially) judicial authorities took their human rights obligations seriously and matters could be left to them. The instant case lacked any legitimate foundation for the contention that Article 3 ECHR was even engaged: paras 103–104.
M herself did not give evidence as to what she prefers to wear and what her wishes and perceived religious obligations in respect of dress might be. The photographs of M at school, which were in evidence, showed her wearing a hijab. There were no photographs of her wearing a full-face veil and there was no expert evidence: para 69.
By publicly wearing a burka as a child, M’s liability under the law would be restricted to an “admonition”. Article 1 (No person is allowed, in public, to wear clothing intended to conceal his/her face) of La Loi No 2010-1192 contains a petty offence (contravention), the sanction for which is a maximum fine of €150 or, in the alternative and with the consent of the relevant individual, completion of a citizenship programme. Statistics showed that in an 18-month period from March 2011 to November 2012 there were approximately 230-350 prosecutions (or 50-75 per cent of police reports resulting in prosecution). The French police issued 46 warnings and reports have almost exclusively been against women. Experts opined that the rate of prosecution is “relatively low”. The Article 4 offence of forcing another person to conceal their face by threat, violence, constraint, abuse of authority or abuse of power, due to their gender is not a petty offence but a misdemeanour (délit) and sets out a penalty of €30,000 or €60,000 if the offence is committed against a minor. Encouragement alone is insufficient for an Article 4 offence and the use of force determines criminal liability. No one has been prosecuted under Article 4.
Earlier on in his judgment, Hickinbottom J also explained:
40. On the evidence before me, there are approximately 6 million Muslims in France, of which about half are women. Of those, the official French Government estimate is that 1,900 wear a full-face veil, in the form of the niqab or burka. The official figures suggest that the number who wear a burka is very small indeed, and possibly nil.
Any risk of prosecution posed to M was “time limited” because the lawfulness of La Loi No 2010-1192 was soon to be tested by the European Court of Human Rights in SAS v France (see here for English) and there was nothing that suggested that France would not comply with that judgment: para 99. M only wore the burka once in a while in the UK and in France she would be able to wear it at the mosque. If M is prosecuted by the French authorities, if necessary it was open to her to take the human rights point to Strasbourg and seek rule 39 interim relief if necessary: para 99. Moreover, there was no evidence that France would not protect M from any abuse.
Hickinbottom J accepted that M would fear prosecution and non-admittance to public places and services in France but the authorities (Tyrer v UK (1978) 2 EHRR 1, Kalashnikov v Russia  36 EHRR 34 etc.) pointed to a high threshold for “degrading treatment”: para 94. Applying one of his own decisions – Grant v Ministry of Justice  EWHC 3379 (QB),  A.C.D. 32 – Hickinbottom J said that “degrading treatment” was defined in terms of its effects on an individual: para 100.
He observed that the Strasbourg court looks for positive evidence of such suffering, e.g. evidence that a medical, psychiatric or psychological condition has resulted or may in the future result from the treatment. There was no medical evidence in relation to the likely effect of M’s removal to France to face the 2010 law and the court also noted that M herself was unaware of all that was going on in her case: para 101.
On the second ground, Article 8 ECHR, Article 3 of the UNCRC 1989 and section 55 of the Borders, Citizenship and Immigration Act 2009 and the decision in ZH (Tanzania) v SSHD  UKSC 4,  2 A.C. required children’s interests to be a primary consideration in any immigration decision making and there was no doubt that it was in M’s interests to remain in the UK: paras 108–109. On the other hand, removing a child to a country (like France) expressing a reservation to the 1989 UNCRC was not unlawful. Following Sir Stephen Sedley’s approach in EM (Eritrea) v SSHD  EWCA Civ 1336, Hickinbottom J said this:
117. Of course, every case will turn on its facts, but the case before me, if anything, is weaker than that, so far as the Claimants are concerned, because, amongst other things, the Claimants in this case have not been in the United Kingdom as long and the claimants in EM, prior to their clandestine flight to the United Kingdom from Italy, had suffered for three months on the streets in that country as described in  of Sir Stephen Sedley’s judgment. Adapting his words of, given my firm conclusion that France will be compliant with its international law obligations (including its obligations under the ECHR), as the removal of the Claimants would be pursuant to the Dublin II Regulation, the case against their removal is “too exiguous” to stand up in any legal forum when set against the history of their entry and stay here, and the legal imperatives for removing them to France. In this context, it is noteworthy that the European Court of Human Rights in the recent reference of Hussein v Netherlands and Italy  57 EHRR SE1, after referring to NS and EM, found a claim on its face similar to this claim not only inadmissible, but “wholly unsubstantiated” and “manifestly ill-founded” (see ).
The court said that the SSHD had not only been entitled but was also bound to refuse the human rights claim based on M’s best interests and to certify it as clearly unfounded: para 118. Last minute attempts to implead fresh Wednesbury grounds were not entertained by the court and the claim failed.
EM (Eritrea) in Supreme Court
It is worth noting that the UK Supreme Court will hear the EM (Eritrea) case on 6 November 2013. Case details can be found here, here, here and here. The issues in the case relate to Articles 3 and 8 of the ECHR and the Dublin II Regulation.