SA (Divorced woman - illegitimate child) Bangladesh v. Secretary of State for the Home Department

Para. 49 -
"We refer to the guidance given by the Court of Appeal in the case of SR (Iran) v Secretary of State for the Home Department [2007] EWCA Civ 460. The question whether the appellant would be at a real risk on return is to be answered at the very end of the fact-finding process. The fact finder will have more or less certainty about each fact that he finds but an overall assessment of risk must be based upon the facts taken as a whole. The establishment of each fact is not to be done by asking whether there is a real risk that the proposed fact is true."

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The position of women in Bangladesh generally:

Para. 70 - 
"The background material clearly shows that a very high proportion of women in Bangladesh experience domestic violence and the police routinely fail to report and investigate complaints of domestic violence. Dr Ameen makes it plain that there are several agencies which assist women who are the victims of domestic violence. An agency is able to serve on the husband a notice to at the premises of the agency for mediation following a written complaint by the wife. If he does not attend the agency has a right to issue a warrant and seek help from the police. Given the high incidence of domestic violence and the limited number of agencies dealing with domestic violence, however, we feel that the use of this procedure must be the exception rather than the rule."
Domestic violence and the adequacy of state protection:

Para. 71 - 
"In this appeal the Tribunal has identified the issue of return to Bangladesh upon women who have been divorced, with a child born outside marriage, as being worthy of country guidance. Although we have not been asked to determine the issue of the return of women who have been subjected to domestic violence, in view of the up-to-date evidence which has been adduced before us it may be helpful if we were to express our view about that as well."

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Para. 74 - 
"Applying these principles to the circumstances of women in Bangladesh who are subjected to domestic violence, we are of the view that a woman who was able to show that she was at a real risk of domestic violence on return to Bangladesh (to which there was no viable internal relocation alternative) may well be able to demonstrate on the evidence which was adduced before us, that despite the efforts of the government to improve the situation of such women, on account of the disinclination of the police to act upon complaints of domestic violence, she would not be able to obtain an effective measure of state protection by reason of the fact that she was a woman. If so, in these circumstances, the persecution to which she would fear being be subjected would be domestic violence against which she would have no protection on account of the fact that she was a woman. Therefore she may be able to show a risk of serious harm for a Refugee Convention reason, i.e. membership of a particular social group, namely women in Bangladesh. Each case, however, must be determined on its own facts."

Para. 75 - 
The mother's right to the custody of her illegitimate child: 
"In relation to the issue whether the mother of an illegitimate child would risk losing the right to custody, according to the evidence of Ms Hossain, which we accept, under Muslim law, as applicable in Bangladesh, the mother, or in her absence her relations has the right to custody of an illegitimate child."

The rights of the mother of an illegitimate child to custody of/contact with a child of a marriage or former marriage

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Para. 79 - 
" Whether a Family Court in Bangladesh would deprive the appellant of custody of or access to her daughter solely on the basis of the fact that she had given birth to an illegitimate child after her divorce, is open to question. On the basis of what has been said above it would seem unlikely, although Ms Hossain said that she would not even advise the appellant to apply, as her illegitimate child would be evidence of immorality. She said this in the context of the expression of an opinion that the appellant would face real difficulties in obtaining an order for custody of the older child if (our underlining) the court considered her ?immoral? conduct and disregard for prevailing social norms regarding her sexual conduct, (as evidenced by her illegitimate son and her strained relations with her parents and her lack of financial means to maintain the child) to be factors relevant to the welfare of the child. She had to concede, however, that the Bangladesh courts as yet had not refused custody to a mother in any case on grounds of ?immorality? and that the courts had allowed the mother to retain custody/contact, even where there were allegations of her ?immoral behaviour? as long as it appeared that the welfare of the child was best served by placing him/in the mother's custody. She qualified this, however, by stating that such decisions had been made in the context of allegations which had not been made out."

The risk of persecution of and/or serious harm to the divorced mother of an illegitimate child:

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Para. 108 - 109 -
" It goes without saying that a single woman with an illegitimate child who would be returning to Bangladesh without family support would not be going into a domestic situation and therefore would not run the risk of domestic violence. Although the incidence of sexual harassment and violence against women in the street are extremely reprehensible, nevertheless we take the view that in the light of the population of Bangladesh as a whole, namely 130.5 million and the population of Dhaka, in particular, namely 9.7 million, it cannot be said that the appellant would run a real risk of being subjected to such harassment and/or violence on return to Bangladesh. 109. We have had regard to the evidence as a whole and the submissions made on behalf of the parties. We take the view that 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. We take the view, however, that 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. We are not satisfied that the conditions which she would have to endure in re-establishing herself in Bangladesh would 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 her child concerned."

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The position of the appellant

Para. 111 - 113
"Applying those general conclusions to the situation of this particular appellant, we must begin with an assessment of the credibility of the appellant. We note the finding of the immigration judge as set out in paragraph 11 of her determination as follows:

??Having heard the evidence of the appellant and having considered the birth certificates of the appellant's children? and the contact order of the Epsom County Court produced a hearing today, I am able to accept the appellant's account of the incidents which I find credible.?

Clearly the immigration judge accepted and found credible the appellant's account of her marriage and the incidents leading up to her separation from her husband and indeed the birth of her son. Since that hearing, however, some further evidence has come to light which in our view casts something of a shadow on the appellant's credibility. This is the evidence of the appellant regarding the divorce of her parents. The appellant has made two written statements in the course of these proceedings, the first dated 1 September 20099 and the second dated 21 September 2010 and yet in neither of these documents has the appellant made mention of the fact that her parents had separated and divorced. As recently as in her latest statement she said that when she returned to Bangladesh in August 2007, she stayed in her family home, where she told her father and mother about her problems with her husband. Furthermore the appellant was not truthful at interview when asked about where the family lived. The interview took place in June 2009 and, when asked where her parents lived at question 4 of the interview, she gave one address of namely 284 Elephant Road. Furthermore when asked at question 45 whom she lived with in Bangladesh, the appellant replied ?My parents?. When asked at question 50 whom she had stayed with when she returned to Bangladesh in 2007, again the appellant replied ?My parents?. She told us in oral evidence, however, that her parents had separated in 2001 and had divorced in late 2001. When asked to explain why she had had not been candid about her parents? situation the appellant said that she was shy and this prevented her saying so. She also said she was embarrassed because her parents had now children the same age as her daughter. She disclosed the information to the Tribunal after having been advised by her representative that she needed to be candid with the Tribunal.

We do not find the appellant's explanation for this to be credible. This is a lady who has been educated to tertiary education level. She did not appear to us to have been particularly shy in terms of reporting her matrimonial problems to the police nor did she appear particularly shy in giving her evidence to us. This appellant struck us as a lady who was prepared to stand up for what she wanted. She has actively pursued Family Court proceedings to gain access to her daughter and she has pursued appeals firstly against the refusal of entry clearance as a student and also against the cancellation of her entry clearance, both in the event unsuccessful. She must have been aware from the questions that were asked of her and the case she put forward in claiming asylum that the circumstances of her parents in Bangladesh were particularly pertinent to the question of whether or not she could return there. We have no doubt that she was aware of the relevance of her parents? situation and we do not accept that she was too shy to mention their divorce. The appellant also said that she was embarrassed by the fact that her parents had young children the same age as her daughter. This may be the case but we do not accept that any such embarrassment was the cause of the failure to mention her parents? divorce to the Tribunal. The appellant has been fairly forthcoming with details of her marital problems, details which are no doubt equally embarrassing to her. However she has been able to give a lucid and articulate evidence of these problems and we do not believe that any embarrassment regarding her parents? situation would have been such as to prevent her giving evidence to the Tribunal of it. Although we accept that her parents are divorced we take the view that it is much more likely that the appellant did not disclose the situation of her parents to the Tribunal because she wished to conceal the true circumstances of her family in Bangladesh and that her parents? divorce was something which had not created problems for them, rather than because she was embarrassed about it."

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Para. 120 - 121
"There is now an increasing number of divorced women from the middle classes in urban centres so that the appellant would not be unique as a divorced woman. We take the view that the appellant does not come from a particularly strict family so far as the question of divorce and new relationships is concerned. The appellant, herself, rather surprisingly has been prepared to embark upon a relationship outside marriage as a result of which she conceived a child. It is significant that she was divorced from her husband when the child was conceived so that there is no question of her having committed adultery. In all the circumstances we do not believe that her father has disowned her or she would lack the support of her parents if she were to be returned to Bangladesh.

Under Muslim law, which is the appellant?s personal law, she would have the right to custody of her illegitimate child. Ms Hossain discounted any risk of serious harm to the appellant from her own family or other persons. Dr Siddiqi also at discounted any such risk on the grounds that her family might simply want to maintain a social distance from her. So that even if we were wrong in our conclusions about the availability of support from her father and mother we would not be satisfied that the appellant would be at a real risk of serious harm at their hands. We also take the view that since the appellant is now divorced from her husband, he has custody of their child and there is no evidence of him making threats or seeking to harm her in the United Kingdom since their separation, there is no basis for thinking that the appellant would be at a real risk of serious harm at the hands of her former husband?s family, even if they were to become aware of her return to Bangladesh.

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Para. 123 - 124
"The worst case scenario for the appellant would be to be returned without the support of her parents. We do not underestimate the difficulties which this would present to a young woman from a middle-class background. The purpose of the Refugee Convention and that of the ECHR, however, is not to assist persons to live at the economic level to which they have become accustomed. As pointed out earlier, the real issue is whether the appellant would be unable to obtain any employment, housing or education for her child, so that she would be in a situation which would fall so far below acceptable standards that it would amount to persecution or a breach of her rights under article 3 of the ECHR. At the hearing the appellant demonstrated her ability in English, which would give her an advantage in the employment market in Bangladesh. We think that at the very least she would be likely to 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. In the second of her Annexes Ms Goswami set out two shelters for which she said that the appellant and her son satisfied the criteria, the Ain o Salish 37 Kendra and the SSP, in the latter of which a prolonged would be possible. In addition we note that the shelter provided by the Bangladesh National Women Lawyers Association (BNWLA) is said to be for any destitute children and women, notwithstanding that the criteria for staying are said to be specifically for trafficking victims and other special cases. If in need of urgent assistance the appellant ands her son would be able to seek accommodation in a woman?s shelter. We are not satisfied that the conditions which the appellant would have to endure in re-establishing herself in Bangladesh would amount to persecution or a breach of her rights under article 3 of the ECHR.

There remains the question of whether the appellant?s return to Bangladesh would amount to a disproportionate interference with her right to respect for her private and family life under article 8 of the ECHR."

Para. 129- 130
" In these circumstances we take the view that to remove the appellant from the United Kingdom at the present time would amount to a disproportionate interference with her right to respect for her private and family life under article 8 of the ECHR. It will be a matter for the respondent to determine the length of leave which should follow this finding. We would expect it to be coterminous with that of Z.

Accordingly, for the reasons which we have given, we set aside the determination of the appeal by the immigration judge. We remake the decision by dismissing the appeal on asylum, humanitarian protection and human rights grounds under article 3 of the ECHR but we allow the appeal on human rights grounds under article 8 of the ECHR."