Upper Tribunal (Immigration and asylum chamber), 2011-07-11, [2011] UKUT 254 (IAC) (SA (Divorced woman- illegitimate child))

JurisdictionUK Non-devolved
JudgeMs S Ward, Miss SE Singer, Mr Spencer P A
StatusReported
Date11 July 2011
Published date13 July 2011
CourtUpper Tribunal (Immigration and Asylum Chamber)
Hearing Date30 September 2010
Subject MatterDivorced woman- illegitimate child
Appeal Number[2011] UKUT 254 (IAC)


ar


Upper Tribunal

(Immigration and Asylum Chamber)

SA (Divorced woman – illegitimate child) Bangladesh CG [2011] UKUT 00254(IAC)



THE IMMIGRATION ACTS



Heard at Field House

Determination Promulgated

on 29th & 30th September 2010



11 July 2011



Before


SENIOR IMMIGRATION JUDGE SPENCER

SENIOR IMMIGRATION JUDGE WARD

MS S E SINGER (Non Legal Member)


Between


SA


Appellant

and


THE SECRETARY OF STATE FOR THE HOME DEPARTMENT


Respondent




Representation:


For the Appellant: Mr J Walsh, Counsel, instructed by IAS (Tribunal Unit)

For the Respondent: Mr K Kyriacou, Home Office Presenting Officer



  1. There is a high level of domestic violence in Bangladesh. Despite the efforts of the government to improve the situation, due to the disinclination of the police to act upon complaints, women subjected to domestic violence may not be able to obtain an effective measure of state protection by reason of the fact that they are women and may be able to show a risk of serious harm for a Refugee Convention reason. Each case, however, must be determined on its own facts.

(2) Under Muslim law, as applicable in Bangladesh, the mother, or in her absence her own family members, has the right to custody of an illegitimate child.

  1. In custody and contact disputes the decisions of the superior courts in Bangladesh indicate a fairly consistent trend to invoke the principle of the welfare of the child as an overriding factor, permitting departure from the applicable personal law but a mother may be disqualified from custody or contact by established allegations of immorality.

  2. The mother of an illegitimate child may face social prejudice and discrimination if her circumstances and the fact of her having had an illegitimate child become known but she is not likely to be at a real risk of serious harm in urban centres by reason of that fact alone.

  3. The divorced mother of an illegitimate child without family support on return to Bangladesh would be likely to have to endure a significant degree of hardship but she may well be able to obtain employment in the garment trade and obtain some sort of accommodation, albeit of a low standard. Some degree of rudimentary state aid would be available to her and she would be able to enrol her child in a state school. If in need of urgent assistance she would be able to seek temporary accommodation in a woman’s shelter. The conditions which she would have to endure in re-establishing herself in Bangladesh would not as a general matter amount to persecution or a breach of her rights under article 3 of the ECHR. Each case, however, must be decided its own facts having regard to the particular circumstances and disabilities, if any, of the woman and the child concerned. Of course if such a woman were fleeing persecution in her own home area the test for internal relocation would be that of undue harshness and not a breach of her article 3 rights.



DETERMINATION AND REASONS


1. This is the determination of a panel of the Tribunal which all of the members have agreed. Unfortunately Senior Immigration Judge Ward died before the determination could be put into its final form but before her illness she made a substantial contribution to the writing of the determination and agreed with all of its conclusions both in terms of the outcome of the appeal and the country guidance given.


The background


  1. The appellant is a citizen of Bangladesh, born on 10 December 1981. She arrived in the United Kingdom on 2 November 2002 and was granted leave to enter as a dependent of her student husband in 2004. Further leave was granted in the same capacity on 3 November 2006 but in December 2006 she left her husband. She returned to Bangladesh in about August 2007. On 13 September 2007 whilst in Bangladesh she made a student visa application to the UK which was refused. She was informed on arrival back in the UK in September 2007 that her status as a student dependent had been cancelled because the couple had separated. She was granted temporary admission to the UK although that temporary admission expired in 2007. She unsuccessfully appealed her student visa application refusal and the cancellation of her leave in October 2007. She thereafter claimed asylum and her application was refused on 23 July 2009.


  1. Thereafter the appellant appealed to the former Asylum and Immigration Tribunal and her appeal was heard on 15 September 2009 by Immigration Judge Kanagaratnam who dismissed the appeal. The appellant sought and was granted an order for reconsideration and by the decision of a senior immigration judge made on 20 January 2010 the decision of the immigration judge was set aside and the appeal was adjourned for a second stage reconsideration. The reasons given by the senior immigration judge were as follows:

  1. Reconsideration was ordered on both grounds for review. In relation to the second ground for review the order stated that the issue of how the appellant would be treated by society as a result of her younger illegitimate child had been inadequately dealt with. It was arguable that the immigration judge did not give sufficient reasons for his findings given the country information before him.

  2. It is true, as Ms Ramachandran argued, that the immigration judge set out the correct factual basis for his findings in paragraph 12 of his determination, in which he said he bore in mind that the appellant was a single divorced female who had a dependent child born out of wedlock but after her divorce from her husband. It is also true that he made a general reference to the background material to which his attention had been drawn. In drawing a distinction between how the appellant might be dealt with in Dhaka, her own home area of Bangladesh, and how she might be dealt with in a rural area, however, the immigration judge in my view misstated the effect of that evidence. He said that according to the US State Department report laws existed in Bangladesh to protect women from forms of discrimination although enforcement of those laws was weak in rural areas. In fact in section 5 of the report stated that enforcement of these laws was weak. The Refworld report dated 25 June 2001 and entitled “Bangldesh: Information on the Situation of Women Who Have Children Who Are Born Out of Wedlock”, a copy of which was in the appellant’s bundle before the immigration judge, stated that enforcement of the anti-discrimination laws was weak, particularly in rural areas. The conclusion that enforcement of anti-discrimination laws in favour of women was effective in urban areas could not be reasonably drawn from the background material before the immigration judge.

  3. Furthermore, as Mr Walsh argued, the immigration judge failed to have regard to the background material in the Refworld report which stated that the status of women in Bangladesh was very low and having children out of wedlock was against Islamic law and might result in such a woman and her child being treated as social outcasts. If the woman was Muslim, as the appellant is, the very existence of the child proved her adultery and how she would fare would depend upon her immediate family and her class background. Returning to Bangladesh with a child born out of wedlock would be “an enormous physical and social risk for a woman to take”. Moreover it was crucial that the immigration judge should have made a finding, which he failed to do, on whether the appellant’s account of having been rejected by her immediate family on account of having had an illegitimate child was true.

  4. In these circumstances I am satisfied that the immigration judge made a material error of law in determining the appellant’s asylum grounds of appeal and her human rights grounds of appeal under article 3 of the ECHR.

  5. Ms Ramachandram, conceded, and I am satisfied that the immigration judge made a material error of law in finding that as the appellant had the benefit of contact rights to have her daughter, her child by her former husband, with her between Fridays and Sundays, she would be able to maintain contact from abroad “as expected” and therefore there would not be a breach of her article 8 rights. The immigration judge failed to analyse the effect of the appellant’s removal on her relationship with her daughter.

  6. Therefore I adjourn the appeal for a second stage reconsideration hearing in which the appellant’s appeal is to be determined completely afresh save that the positive finding of the immigration judge as to the appellant’s credibility in relation to the incidents she related mentioned in paragraph 11 of the determination is to be preserved.


4. Subsequent to the promulgation of the reasons of the senior immigration judge, the Asylum and Immigration Tribunal was abolished and this appeal was transferred to the Upper Tribunal (Immigration and Asylum Chamber) to be continued as an appeal to this Tribunal. Thus the matter came before us.


5. The hearing proceeded on the basis that the immigration judge had made certain findings of fact that which were not affected by the material error of law made by her. The following facts are therefore...

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