^* Valentina Azarov is a legal researcher at HaMoked – Center for the defence of the individual, based in East Jerusalem. She has formerly worked with immigration and asylum law in the UK, inter alia, as caseworker with Bail for Immigration Detainees and adviser for the London Detainee Support Group.

^* This text was reproduced and reformatted from the text appearing in the I.L.M. Issuu database: (visited February 10, 2009)<<http://issuu.com/i.l.m./docs/em_v._secretary_of_state_for_the_home_department>>

¹ EM (Lebanon) v. Sec’y of State for the Home Dep’t [2008] UKHL 64 [hereinafter EM (Lebanon)]; see also Liberty and Justice, two British human rights non-governmental organizations jointly intervened in the case, available at< http://www.justice.org.uk/images/pdfs/EM(Lebanon)Intervenerscase.pdf>.

² R (Ullah) v. Special Adjudicator, Do v. Immigration Appeal Tribunal [2004] UKHL 26, [2004] 2 A.C. 323 [hereinafter Ullah].

³ See EM (Lebanon), supra note 1, ¶ 45 (Baroness Hale of Richmond notes that “[s]o far as we are aware, Strasbourg has never yet found that test to be satisfied in a case where the breach of article 8 would take place in the foreign country to which a family is to be expelled, rather than as the resultof expulsion of one of its members”).

⁴ Id. ¶ 4.

⁵ Id. ¶ 38 (quoting Ms. Carss-Frisk, Queen’s Counsel, for the Secretary of State, who stated that this is “a very high test to satisfy never found to be satisfied in respect of any of the qualified Convention rights in any reported Strasbourg decision”).

⁶ Soering v. U. K., App. No. 14038/88, 11 Eur. H.R. Rep. 439 (1989), ¶ 91 [hereinafter Soering].

⁷ For a detailed discussion of the case law using Article 8 ECHR, see Daniel Thym, Respect for Private and Family Life under Article 8 ECHR in Immigration Cases: A Human Right to Regularize Illegal Stay?, 57 Int’l & Comp. L.Q. 87 (2008).

⁸ Devaseelan v. Sec’y of State for the Home Dep’t, [2003] Imm. A. R. 1, ¶ 111.

⁹ See Ullah , supra note 2, ¶ 50; see also R (Razgar) v. Sec’y of State for the Home Dep’t [2004] 2 A.C. 368, ¶¶ 69-70 (heard by the same Committee immediately after the Ullah case).

¹⁰ Mamatkulov & Askarov v. Turkey, 41 Eur. H.R. Rep. 494 (2005), 44 I.L.M. 759 (2005). 11 EM (Lebanon), supra note 1, ¶ 4 (Lord Hope notes that it would be wrong to regards these words as indicating different tests).

¹² Where the Court has noted that it would be impractical to oblige each state party to the Convention to guarantee the rights and freedoms enshrined therein to the rest of the world; see Soering, supra note 6, ¶ 88.

¹³ EM (Lebanon), supra note 1, ¶ 18 (Lord Hope concluded that the case for the appellant is indeed compelling considering the “effects on the child” for which “[l]ife with his mother is the only family life he knows”).

¹⁴ N v. U.K., App. No. 26565/05 (Eur. Ct. H.R. May 27, 2008), available at< http://www.echr.coe.int/eng>. 15 EM (Lebanon), supra note 1, ¶¶ 8-10.

¹⁶ Id. ¶ 12; see also Z & T v. U. K., App. No. 27034/05, (Eu. Ct. H.R. Feb. 28, 2006) (where the appellants had not shown that they feared a “personal” danger), available at< http://www.echr.coe.int/eng>.

¹⁷ See EM (Lebanon), supra note 1, ¶¶ 43, 48 (Baroness Hale joins Lord Bingham in upholding the child’s separate article 8 ECHR rights and the need to consider them separately).

¹⁸ The Court refers in ¶ 40 to the interest of the child as derived from the right to family life in Article 8 ECHR, without noting the principle in Article 9(1) of the U.N. Convention on the Rights of the Child. The UK’s withdrawal of the reservation is available at< http://www2.ohchr.org/english/bodies/ratification/docs/UK2008-Eng.pdf>; see Bridgette Ann Carr, Eliminating Hobson’s Choice by Incorporating a ‘Best Interests of the Child’ Approach into Immigration Law and Procedure, Yale Hum. Rts. & Dev. L.J. (forthcoming spring 2009), available at< http://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID1283842_code1123672.pdf?abstractid=1283842&mirid=1> see also Press Release, U.K. Committee for UNICEF, UK Government Withdraws Reservations to UNCRC, available at< http://www.unicef.org.uk/press/news_detail_full_story.asp?news_id=1198>.

¹⁹ See Maslov v. Austria, App. No. 1638/03 (Eur. Ct. H.R. June 23, 2008), available at< http://www.echr.coe.int/eng>.

²⁰ Id. ¶ 5 (emphasis added).

²¹ Id. ¶ 6.

²² Id. ¶ 14.

²³ Id.

²⁴ Id. ¶ 52.

²⁵ Id. ¶ 17.

²⁶ Id.

²⁷ Lord Bingham notes that the tribunal’s determination in the reconsideration of the appellant’s case adopted a stringent approach in appreciating the facts and upheld that although “[t]he system of family law to which she, by her religion, is subject, is one which in this respect she does not like: but that does not permit her to choose the law of another country;” see id. ¶ 28.

²⁸ See Michael K. Addo & Nicholas Grief, Does Article 3 of the European Convention of Human Rights Enshrine Absolute Rights?, 9 Eur. J. Int’l L.510 (1998); see also Ralf Alleweldt, Protection Against Expulsion Under Article 3 of the European Convention on Human Rights, 4 Eur. J. Int’l L. 360 (1993).