In R (Baradaran) v Secretary of State for the Home Department & Anor  EWCA Civ 854 the appellants, B and M, were an Iranian father and daughter who challenged the Secretary of State’s decision on 5 December 2011 to refuse their asylum claims on safe third country grounds and to remove them to France (which had accepted responsibility for taking them). Before Hickinbottom J they challenged their return to France on the basis that the French Law 2010-1192 of 11 October 2010 provides that “in public elementary schools, middle schools and secondary schools, the wearing of symbols or clothing by which the students conspicuously indicate their religious belief is prohibited” and that this would breach their rights under Articles 3, 8, 9, 11 and 14 ECHR. Hickinbottom J had dismissed their claims.
The Court of Appeal [Dyson MR and Moses and Patten LJJ] dismissed the appeal in its entirety. Delivering the judgment of the Court, Lord Dyson said that he accepted the need for great caution and that the court should be very slow to decide that the law of a democratic member state of the EU was incompatible with the Convention. The UK courts were not powerless to assess the compatibility of foreign legislation with the Convention and there might be exceptional circumstances in which it would be appropriate to do so; but he was not persuaded that such circumstances existed in the present case [para 18].
The courts had drawn a distinction between alleged violations of Articles 2 and 3 (which require a “real risk” of violation) and alleged violations of other Convention rights (which require a “flagrant” violation) [para 19]. The present claim came nowhere near satisfying the stringent “flagrancy” test required in an Article 8 or 9 case:
“First, the ECtHR has decided that the 2004 Law does not amount to a violation, let alone a ‘flagrant’ violation of Article 9 … Secondly, the ECtHR has held that a similar prohibition on the wearing of headscarves in educational institutions is not a violation, let alone a ‘flagrant’ violation of Article 9 [citing Sahin v Turkey (2007) 44 EHRR 5] … Thirdly, M would not be exposed to the possibility of criminal sanction for wearing a burka at school (although she would eventually be expelled). Fourthly, M would retain the possibility of being educated privately, at home or by correspondence, in the event of her expulsion for wearing a burka at school (although I note that it is said that B could not afford to pay for private education). Fifthly, M would be permitted to wear her burka at home and at places of worship” [para 21].