The decision

Determination SA (Article 8 - Article 3 - Separation From Children) Iran [2003] UKIAT 00154

Determination Notified Heard at: Field House
20 November 2003__________ On: 10 November 2003
Written on: 13 November 2003



Mr L V Waumsley - Chairman
Mr T S Culver




Appellant – Ms Rebecca Chapman of counsel instructed by Bindman and Partners
Secretary of State – Mr J McGirr Home Office Presenting Officer

1. The appellant a national of Iran appeals with permission of the Tribunal against the determination of an Adjudicator ( Mr F E P Meadows ), who dismissed her appeal against the decision of the respondent made on 20 February 2002 to refuse to grant asylum.

2. The appellant’s claim for asylum is based on the following assertions:
(a) The appellant’s father in law was head of Savak for the Teheran area which were the Security Forces under the Shah prior to the revolution. After the revolution he was detained for two years and from time to time thereafter.
(b) The father in law was not allowed to work and had most of his property confiscated. He remained under surveillance.
(c) Because they had difficulty renting a place for themselves the appellant and her husband lived with his parents for 4 years.
(d) When they were discovered with a satellite dish her husband was taken away and abused. He was later apprehended in relation to possession of a stolen cheque.
(e) He was required to report several times in relation to this charge. He was asked to give information about his father’s associates.
(f) The appellant thought that she was being watched and her house was broken into and property destroyed.
(g) Her husband was summoned to appear in court but had the matter adjourned. During the period of adjournment the appellant was arrested on the basis that she was driving a stolen car. She was held for several hours without food or drink and told she should persuade her husband to be more cooperative.
(h) The appellant’s husband did not respond to a summons to come to court and was told that an arrest warrant had been issued for him. Her husband went into hiding.
(i) The appellant obtained a visa to come to the United Kingdom for herself and her children to enter as visitors. She arrived in the United Kingdom on 16 December 2001 and applied for asylum on 7 January 2002.
(j) The appellant now says her husband abused her and she has brought divorce proceedings against him in this country.

3. The adjudicator did not find the appellant credible for a number of reasons:
(a) He did not accept that her father in law’s role would make the appellant of interest to the Iranian authorities.
(b) Her father in law had not been detained since 1989.
(c) He did not accept that the authorities would have written to her husband advising him of a warrant for his arrest. They would simply have arrested him.
(d) The appellant was able to leave Iran on her own properly issued passport which would not have been possible had she been of interest to the Iranian authorities.
(e) She had represented to the Embassy that she wished to visit her brother in the United Kingdom and did not have problems in Iran. Clearly she was either being untruthful then or now.
(f) Her parents and siblings live in Iran and have had no problems.
(g) In her Statement of Evidence Form (SEF) of January 2002 or her interview the appellant made no mention of matrimonial problems. The first time she mentioned them was in September 2002. The adjudicator thought they had been mentioned to enhance her claim.
(h) In the absence of evidence from her church he would not accept that she was taking instruction in Christianity.
(i) The adjudicator declined to deal with any problems arising from her marriage breakdown because he was not given any documents to support her suggestion that she had brought divorce proceedings in the United Kingdom.

4. The Tribunal granted permission to appeal to consider the human rights grounds that might arise in regard to her matrimonial problems. The documents have been served to show that she has brought divorce proceedings against her husband and various orders of the Family Court have been made in regard to her relationship with her husband and his access to their children

5. At the beginning of the hearing Mr McGirr asked for an adjournment because he had located the file of the husband’s application for asylum. That application had been refused by the Secretary of State the appeal had been refused by the adjudicator and permission to appeal refused by the Tribunal.

6. Mr McGirr wanted to clarify the position because he thought it possible from that file to show that there had been collusion in the bringing of the divorce proceedings.

7. Ms Chapman did not oppose the application. Indeed although she has served an expert’s report which alludes to matrimonial law in Iran she felt there could be further clarification.

8. We felt we might be able to deal with the case on the question of whether taking the appellant’s case at its highest: accepting there was no collusion in regard to the divorce proceedings and that she has been truthful in this regard the appellant would be entitled to protection under the European Convention of Human Rights (ECHR).

9. Having heard the arguments of both sides on this issue we feel we can deal with it on this basis and there would be nothing gained from an adjournment.

10. Ms Chapman referred us to the 2001 Country Report on Human Rights Practices of the United States Department of State for Iran. This at page 19 of 22 indicates that women are discriminated against, particularly in regard to family and property law under the provisions of the Islamic Civil and Penal Codes.

11. On the same page its reflects that women who remarry are forced to give up the custody of the children of the earlier marriage to the children’s father. However there are exceptions to this principle such as when the husband is a drug addict or has a criminal record.

12. She also referred us to the October 2003 Country Information and Policy Unit Report (CIPU) which at paragraph 6.154 states the father has legal custody of the children unless he can be shown to be unfit. The Civil Code provides that custody of a male child is with the mother until the child is 2 and until 5 for a daughter.

13. Finally on this topic she referred us to her expert’s report from Professor Afshar of the University of York who relates that women have automatic custody under Iranian law of boys to the age of two and girls to 7.

14. The professor refers to a bill passed in May 2002 which would allow women custody of all children to the age of 7, when the court would decide which parent would have custody. He says this bill has yet to be approved by the Guardian Council.

15. The CIPU at 6.152 refers to the bill being passed by the Guardian Council in December 2002 and that the bill enhances a woman’s right to divorce in Iran but that it is still very limited by comparison with that of a man.

16. Professor Asfhar opines that if returned to Iran and her husband divorced her the appellant would lose custody of her son and is legally likely to lose custody of her daughter when she reaches 7.

17. We felt we should deal with the case of the basis that if all the family is returned to Iran there is a real risk that this appellant would lose custody of both her children. Her son is now 6 and her daughter 4.

18. The law on parental contact in Iran was not made clear to us. Ms Chapman referred us to a reference to the Report of United Nations Committee on the Rights of the Child of May/June 2000 quoted at paragraph 6.166 of the CIPU which referring to Iranian law says; the rights of the child were seen through a paternalistic lens; the child was not seen as an active subject of human rights.

19. She argued that we should assume that if a father wanted to forbid contact a woman would not be able to have any contact with her child. She argued that if returned to Iran there would be a real risk of this loving mother being denied all access to her children and if this was so it would not only be a denial of her right to family life under Article 8 of the ECHR but also would be inhuman and degrading treatment such as to be a violation of her right under Article 3 of the ECHR.

20. Article 3 of the ECHR forbids torture. It refers to torture or inhuman or degrading treatment or punishment. There is a great deal of jurisprudence both in this country and in Europe which reflects it is a very high standard.

21. We do not accept that even assuming this woman might be denied access to her children by the Iranian courts, an assumption which is not supported by the evidence in this case, it would be an Article 3 violation.

22. Painful as it would be for a loving mother to be denied access to her children one must face the fact that it sometimes occurs in this country. Where the court finds that it is in the best interests of the child to forbid all contact it can and sometimes does forbid all contact.

23. Were this a violation of Article 3 no court within a country signatory to the Convention could lawfully do so for there is no derogation from Article 3 for the good of society or of the child.

24. When it comes to custody it will be obvious that whenever a marriage breaks down one parent is going to lose custody all of the time or both parents for some of the time.

25. It is also obvious that different countries with different values will deal with family break down in different ways. It may be that European countries will tend to give custody of young children to the mother while Islamic countries would give it to the father.

26. It would seem very strange to us if the difference in family law were to give rise to protection under Article 8 of the ECHR against removal of illegal immigrants to those who would have more rights under the laws of a European country than they would in their home countries.

27. Ms Chapman argued that were this appellant and her children returned to Iran there would be insurmountable obstacles to the continuance of the family life they have enjoyed during the two years they have been here.

28. She correctly argued that there are circumstances where Article 8 can provide protection from removal. But the situation where this happens is where some family members will remain in the host country while others are removed. It is the removal which effects the separation.

29. In this case all the family will be removed to Iran. It may be that the appellant’s husband will be removed separately but she and her children will not be separated by the removal.

30. Even if Ms Chapman is correct it will be the operation of Iranian law which separates the appellant from her children rather than the removal from the United Kingdom.

31. We rely in regard to this approach to the case of Ullah & Do [2002] EWCA Civ 1856 where the Court of Appeal considered this question. In that case the effect of removing the appellants to their homeland was to interfere with their rights to religious freedom, but the court considered the question in regard to all the rights protected by the ECHR.

32. Lord Phillips MR gave the judgement of the court. Dealing with Article 8 family life he stated in paragraph 42. Article 8 has been quite often invoked in support of a submission that an immigration restriction infringes the convention. We believe, however, that it has only successfully been invoked where removal or refusal of entry has impacted on the enjoyment of family life of those already established within the jurisdiction.

33. The court went on to decide; that a removal decision to a country that does not respect Article 9 rights will not infringe the HRA where the nature of the interference with the right to practise religion that is anticipated in the receiving state falls short of Article 3 ill-treatment.

34. The court further stated; This appeal is concerned with Article 9. Our reasoning has, however, wider implications. Where the Convention is invoked on the sole ground of the treatment which an alien, refused the right to enter or remain, is likely to be subjected by the receiving state, and that treatment is not sufficiently severe to engage Article 3, the English court is not required to recognise that any other Article of the Convention is, or may be, engaged.

35. This approach was approved in the more recent Court of Appeal decision in an HIV/AIDS case; N[2003]EWCA Civ 1369.

36. We conclude that even putting the case of this appellant on this issue at its highest and assuming that there would be a real risk of her losing custody of her children on her return to Iran, she still has no right to the protection of the ECHR because what she fears does not amount to Article 3 mistreatment and any Article 8 interference with family life will occur by operation of the law of Iran and not by reason of her removal from the United Kingdom.

37. This appeal must therefore be dismissed.

Thomas S Culver
Legal Member