Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/01014/2015

THE IMMIGRATION ACTS

Heard at Field House
Determination Promulgated
On 22 December 2015
On 24 October 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE O'RYAN

Between

Ms ZM
(ANONYMITY ORDER MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms E Daykin, Counsel, instructed by Duncan Lewis & Co Sols.
For the Respondent: Mr Tarlow, Senior Home Office Presenting Officer

DECISION AND REASONS

1 This is an appeal against the decision of the First-tier Tribunal dated 25 June 2015 (Judge of the first-tier Tribunal Morron), dismissing the Appellant's appeal against the decision of the Respondent of 5 January 2015 refusing to very her leave to remain, and refusing her application for asylum.

2 The Appellant is national of Iran aged 52 at the date of hearing before the judge. The Appellant has visited the United Kingdom on a number of occasions, and has an adult son present in the UK with leave to remain. The Appellant also has a daughter, married and living in Iran. The Appellant entered the UK on 19 May 2014, and her husband was also then present in the United Kingdom. He assaulted her on 20 June 2014. The Appellant travelled with her daughter to Turkey for two weeks, and returned to the UK on 14 July 2014, that being her last entry to the UK. Her husband was convicted in the United Kingdom for assault by beating and was fined. He returned to Iran.

3 On or around 15 October 2014, the Appellant claimed asylum. In a witness statement dated 14 October 2014 (to which the Appellant subsequently made minor amendments), and in her SEF interview dated 18th of December 2014, the Appellant set out her account of a prolonged history of violence from her husband, starting from the very outset of her marriage. This account included many incidents of beatings, swearing, humiliation, and rape. She had made complaints to the police on a number of occasions, but had been repeatedly dissuaded by them from making any formal complaint against her husband. Violence against both of the children was also described. The Appellant also asserted that her cousin in Iran had informed her that her husband had, since returning to Iran, made threats that as soon as the Appellant returned to Iran, he would destroy her passport and kill her. The husband also threatened in a formal legal document (sent to the Appellant by a friend of her husband's - Annex K1) that unless the Appellant returned to her marital home, he would issue formal civil proceedings against the Appellant for abandoning the marital home. The Appellant's daughter had heard from someone in Iran that the Appellant's husband had arranged for the Appellant to be banned from leaving Iran if she returned, although the daughter had also heard information to suggest that there was no such ban.

4 It was also part of the Appellant's account that in 2002, she had applied to the family courts in Iran, seeking separation and 'mehriyeh' (alimony). The Appellant said that in the course of her application to that court, the judge dealing with the matter suggested that she could apply for a divorce from her husband. She did not ultimately persist with her application for 'mehriyeh', as she was encouraged by friends to return to the marital home.

5 In her decision of 5 January 2015, the Respondent accepted the Appellant's identity and nationality (para 14), that she formed part of the particular social group of 'women in Iran' (para 12), and that the Appellant had been a victim of domestic violence by her husband (para 19). It was also accepted that according to the law on Iran, it is possible for a husband to prevent his wife from leaving Iran (para 34). However, the Respondent held that the Appellant had not been prevented from applying for a divorce from her husband whilst in Iran (para 30), and it was not accepted that her husband had threatened to issue civil proceedings against the Appellant requiring her return to the marital home (paras 35-36).

6 The Respondent held that there was a sufficiency of protection for the Appellant against any further harm from her husband, and that she could internally relocate within Iran (paras 44-62).

7 At the hearing before the judge on 19 May 2015, the Appellant gave evidence. Also before judge was an expert report from Anna Enayat, independent consultant on a Iranian affairs, dated 11 October 2014.

8 The judge made the following findings of fact:

"23. I accept the Appellant's evidence regarding her marriage. There is clear documentary evidence of the assault which took place in London in June 2014 and her evidence regarding earlier incidents - indeed throughout 33 years of marriage - is detailed and supported by her adult children.
...
25. I, therefore, find that the Appellant has been physically and emotionally abused by her husband for the whole of her marriage, and she has more than once sought to live separately from him, but that she has never sought a divorce. I also accept that her understanding of the law in Iran is that she would be unable to obtain one. "

9 The judge made reference to the report of Ms Enayat, finding that it contained 'much useful material' and stated that there was consensus amongst commentators, including UNHCR, that the Iranian state offers little or no effective protection against a violent husband, except in extremis when the situation is proving to be life-threatening (para 26).

10 The judge held that the expert report and country information supported the Appellant's claim that Iran continues to discriminate against women (para 27), and the judge sets out certain other passages of country information at paragraphs 28 to 31, including the following:

"31. The home of his country of origin information service (2013) also quotes a New York Times report of 6 December 2010 suggesting that the number of divorces in Iran has troubled between 2000 and 2010 and now equated to one in seven marriages. In Teheran it is approximately one in four. It goes on to state:
"While the changing divorce rates is remarkable, even more surprising is the major force behind it: the increased willingness of Iranian women to manipulate the Iranian legal system to escape unwanted marriages".

11 The judge's reasoning for dismissing the appeal is contained within the section in the determination 'Determination on Refugee Status'. The Appellant challenges the judge's analysis in this section, and so I set it out in full here:

'32. Taking all the objective evidence submitted to me and looking at it in the round, I find the ability of men and women to obtain divorce in Iran is unequal and discriminates against women. Whilst a woman may seek a divorce on the grounds that her husband is guilty of physical abuse against her, this has to be proved; and under Iranian law if the allegations are denied by the husband, the wife will require male witnesses to corroborate her allegations (even of serious sexual assaults or rape) as the evidence of a woman is said to be equal to half that of a man.

33. The Appellant would not, therefore, find it swift or easy to obtain a divorce. Both the court and her own family, as well as her husband, would put pressure on her to become reconciled and returned to live together.

34. Notwithstanding that finding, I note that the Appellant herself had intended in 2002 to seek mehriyeh (which the judge had previously described at para 14 as alimony) in order to live apart from her husband, taking her 12-year-old son with her. She now does not require the mehriyeh as she has independent means. She also no longer has dependent children. She could, therefore, seek to live separately from her husband. When she returned on earlier occasions after leaving him it was either because he made promises or because members of her family persuaded her to return. She need not do so again.

35. I also give some weight to the Appellant's own evidence that she has never sought to obtain a divorce but that the judge in 2002 had suggested that she should. The country information indicates that the ability of a woman to obtain a divorce was almost certainly more restricted in 2002 than it is now; if the judge himself suggested it this suggests that that court, at least, considered that she had the grounds to do so.

36. I take into account the Appellant's husband's violent behaviour, and his continued threats to harm her if she returns and to seek to prevent her from leaving around if she does so.

37. I also bear in mind that the decisions required of the Tribunal in this case call for the most anxious scrutiny and whilst the burden of proof is upon the Appellant the standard of proof is what is sometimes known as a lower standard, namely that there is a reasonable likelihood of persecution if she were to return.

38. The Respondent accepts that the Appellant, as an Iranian woman, is a member of a particular social group. She is also a victim of domestic abuse by her husband.

39. In the Appellant's skeleton argument it is acknowledged that the Appellant's marriage contract 'does contain a right to divorce under specified conditions' as well as an entitlement to claim mehriyeh. I find that notwithstanding the discriminatory legal system in Iran and the undoubted difficulty any woman in Iran faces in seeking a divorce against her husband's wishes, the presence of appropriate wording in the marriage contract together with the evidence of physical violence which she would be able to produce (including course documentation from the incident in the UK in 2014) means that the Appellant would, as a judge suggested in 2002, have the grounds to seek a divorce. In the meantime, I also find that she could live separately from her husband as she would no longer be dependent on mehriyeh to maintain herself as had been her intention in 2002. She changed her mind at that time and stayed because she still had young children. It was principally her concern about what might happen in relation to those children which made her decide to stay with her husband. That would no longer be an issue. I take full account of all the objective evidence as well is a subjective evidence of the part herself but I do not find that there is a reasonable risk of persecution in this case. Whilst I accept that the Appellant has been in an abusive marriage over 30 years she has not, on her own evidence, actually attempted to obtain a divorce despite a judge suggesting that you do so. Similarly, while I accept that the Appellant's husband would not agree to a separation, the Appellant could apply to the court for a separation and on the facts of this case I considered that she would be like to obtain consent."

12 The judge thereafter dismissed the Appellant's appeal.

13 Grounds of appeal to the Upper Tribunal were made initially on 9 July 2015, resulting in a refusal of permission dated 22 July 2015. In slightly varied (but sometwhat repetitive) grounds of appeal dated 13 August 2015 the Appellant argued, in summary, that the judge erred in law:

(i) in failing to determine adequately or at all whether there was a risk of serious harm to the Appellant, and to make a relevant factual findings in relation to such risk; there were no adequate findings at paragraph 36 or 39 as to whether or not the Appellant's husband would seek to harm her in the future, noting the judge's acceptance that he had done so in the past, and had made threats of further harm to her in the future;

(ii) in failing to make adequate findings as to whether there were effective mechanisms for the Appellant to effect a separation and divorce from her husband, in the particular circumstances of her case; there was no adequate analysis of whether she would be able to effect such divorce, as opposed to whether she had grounds for divorce; it was argued that particular passages within the expert report of Ms Enayat had not been taken into account, and findings were inadequately reasoned;

(iii) in failing to make adequate findings as to the availability of effective protection for the Appellant in Iran.

14 Permission to appeal on those grounds was granted by the Upper Tribunal on 1 October 2015.

15 Before me, Ms Dakin relied on the Appellant's grounds of appeal, and Mr Tarlow relied upon the Respondent's rule 24 response dated 5 November 2015, which argues in short form that the findings of the judge were open to him on the evidence and the judge directed himself properly in law.

Discussion

16 I find that the judge errs in law as argued by the Appellant by failing to make sufficiently clear findings as to whether the Appellant is at risk of further serious harm in Iran. Notwithstanding the judge's overall assessment at [39] that the Appellant had 'grounds to seek' a divorce in Iran (to which conclusion I turn, below), there needed to be an assessment of what risk of harm existed of for the Appellant, if any, on return to Iran. Whilst the Judge indicates at [36] that he took into account the husband's violent behaviour, his continued threats of harm to her if she returns, and to seek to prevent her from leaving, there is no conclusion in that passage or elsewhere as to what level of harm existed for the Appellant on return, or whether there would be effective protection available to her in relation to such harm.

17 Similarly, I find that there is no adequate assessment of what protection there may be for the Appellant against such risk. There is no analysis in the decision of that issue.

18 Further, in relation to the judge's findings at [39] that the Appellant had grounds to seek a divorce, and would likely to obtain consent (from the courts) to separate from her husband, I find that that the judge errs in failing to make a sufficiently clear finding as to how such a ground to seek a divorce would be established by the Appellant, or to consider, in the light of country information before him, whether there was a realistic prospect of the Appellant actually being able to secure a divorce or separation. There has been, I find, a failure to have adequate regard to the country expert evidence before him.
19 The judge appears at [34], [35] and [39] to treat the following as particularly relevant in support of his finding that the Appellant had grounds to seek divorce:

(i) her children were no longer minors, and the Appellant now had independent means; there would be less pressure to return to the family home [34] and [39];

(ii) women's ability to obtain a divorce was almost certainly more restricted in 2002 than it is now [35];

(iii) the appellant's marriage contract does contain a right to divorce under specified conditions; that, together with evidence of physical violence meant that the apparent would have grounds to seek a divorce.

20 I find that these apparent findings fail to take adequate account of expert country evidence before the Judge. Although the judge purpoprted to find the material 'useful', I find that inadequate regard has been given to it. The Appellant's skeleton argument before the judge made reference to a number of passages within Ms Enayat's expert report. Those passages, and others that were brought to my attention, include the following, which I find useful to set out in extenso. Some passages are Ms Enayat's view; others are of evidence which she quotes. None of it is controverted by the Respondent. (Emphasis added.)

"...there is a consensus among commentators, including the UNHCR, that the Iranian state offers little or no effective protection against a violent husband or father except in extremis when the situation is proving to be life-threatening" [5]

"A woman also faces serious obstacles to proving that she has been subjected to violence. Where a woman has been subjected to violence, she can only prove her claim by presenting several male witnesses. For example, while rape is illegal, a rape victim must present four male eyewitnesses or three male and two female witnesses in order to prove the crime. Given that most violence against women takes place in the private sphere, it is extremely difficult for women to provide such eyewitnesses to acts of violence." [5].

"... laws continue to explicitly allow for non-consensual sexual relations in marriage. There are insufficient safe houses for women in need of refuge. A woman wishing to leave an abusive situation must also first prove that there is a significant risk of bodily harm or a threat to her life and safety in order to reside apart from her husband. Likewise, under the civil code, women seeking to obtain a divorce as a result of domestic violence must first prove that the abuse was intolerable (osr va-haraj)."[6]

"By the Iranian Civil Code (article 1114), except by mutual agreement or a court order, women are obliged to live in a dwelling of their husbands choice. If a woman leaves the marital home to stay, say with her parents, her husband can apply to the court order her return.

Again the decision is at the discretion of the judge who must decide whether, given the social context, her physical condition etc the woman can, or cannot, be expected to tolerate the violence she claims.

There is little material and the public domain of the practice of the courts on the subject of separation what exists is indicative of the difficulties.

One of the judges interviewed by Tizro told her:

'According to article 15, if a woman claims that her life is in danger, or experiences financial hardship, she may obtain a separation. However, Judge Y stated that, in practice, a woman's evidence does not provide sufficient grounds for enforcement of the rulings." [7]

"Tizro goes on to describe how other judges she spoke to dismiss beatings by the husband as something distinct from real violence as these were the chastisement of a disobedient wife permitted by the Koran and the Koran's injunction is that they should be restrained (i.e. avoid injuring or bruising her body).

..

A sympathetic female consultant of the family Court in Gilan, however, explained that unless there was a certification of visible injury there was little that could be done in law:

'Normally they [women who apply for separation] are sent home to submit to their husbands because they can't prove their cases. If we have strong evidence that the husband is is addicted to drugs, we can do something about it. Otherwise, getting beaten to a certain level is a cultural norm, and a woman is expected to tolerate it" [8].

"Divorce
...
Reports that the divorce rate in the country has, from the second half of the 2000s been high and rising might mislead the court into believing that divorce is always easy, and has become culturally acceptable. But in fact the specific situation described by the client's solicitor it is not.

A brief review of the current framework of divorce might help untangle the apparent paradox:

-men retain the right to divorce their wives without citing specific grounds. However, this right is restrained somewhat by the requirement, by a law introduced in 1992, that they apply to the courts for a certificate of - adam-e emkan-e sazesh/inability to cohabit, and by various financial obligations due if the woman is not at fault in the breakdown of the marriage.

- women have the right to apply to the courts for divorce on the number of specified grounds set out in the model marriage contract issued by the government in 1982 and now partially incorporated into civil war. These grounds include beatings or other forms of violent behaviour which is habitual/sustained (motaref) and which is unacceptable in social custom and intolerable to the woman taking into consideration her personal circumstances (article 1130 of the civil code as amended in 2002)

- if a man divorces his wife the woman has the right to half the property accumulated since marriage (as long as the stipulations of the 1982 contract have been signed) and, by the law of 1992, to compensation for services rendered during the marriage over and above those laid down in the sharia, as long as the divorce is not'by reason of her failure to carry out her marital duties' or her 'immoral behaviour'.

- if a woman initiates a divorce on the basis of article 1130 of the civil code, or on one of the grounds included in the 1982 model marriage contract, she forgoes all rights to a share in the property accumulated by the husband since the marriage, or to compensation under the 1992 law. Theoretically she retains a right to the mehriah, but in practice, according to a number of sources (see 3.2) she may be forced to forego all or any proportion of that to.

The provisions for financial compensation, intended to prevent men from embarking on a divorce impulsively and to protect the innocent wife, have in practice backfired as the president of the Tehran family courts explained to the newspaper Hamshahri, 10 October 2003:

80 per cent of divorces are on the woman's petition. This is not because women are running away from their marriages but because divorce for a man carries a huge financial burden. In such circumstances men usually put pressure on their wife so that she will apply to the court and give up all her financial rights in order to free herself of a life full of beatings, rows and other forms of stress...'

-the institution of khul' allows a woman to initiate divorce and on specified grounds, if her husband consents, in return for forgoing or repaying the mehriah which can be a substantial sum. There are no rights to a share in marital property or other forms of compensation in a khul' divorce.

Khul' is the most common form of divorce in Iran accounting for roughly two-thirds of divorces in 2003/2004 (the last year for which statistics are available - see 3.1.2 for detail).

Divorce in Iran is a relatively simple matter if initiated by the husband, or if the husband consents to a khul' divorce. The difficulties described in part 3.2 of this report (and by the client), arise when the husband does not consent and the woman applies to the court for a divorce on the specific grounds allowed in 1130, or by the terms of her marriage contract. The violence of the husband, addiction or desertion of the most common.

Part 3.2 provides detail of the procedure a woman must, in practice, follow in an application for divorce on the grounds of her husband's violence. According to lawyers quoted there she must show that the violence is habitual/sustained (motaref) and which is unacceptable in social custom and intolerable to the woman taking into consideration her personal circumstances while the phrase is open to interpretation, and there are no protocols stipulating the procedures and criteria that must be used, lawyers say that the most common practice courts is to require that the woman obtain a conviction for violence and a court order for financial compensation (diyeh) against her husband on at least three separate occasions.

To obtain such convictions she must, as described above, on each occasion: obtain a certificate confirming her injuries from the Department of legal medicine and present three or four witnesses to the violence from neighbours family. Even then, the decision to grant a divorce is at the judge's discretion and many judges have a restricted conception of what constitutes habitual/sustained violence." [9]-[10].

"1.4 Relocation
A married woman, as already explained, cannot legally live separately from her husband except by his consent or the consent of the court [by articles 1114 - 1116 of the civil code]. Therefore, if her husband discovers her whereabouts he may apply to the court and compel her to return to the family home.

Whether as a married woman a strange from her husband (who would have to pose as divorced or widowed) or as a divorced woman, it is difficult to impossible for a woman to live alone in Iran, and it is especially difficult for a divorced woman who simultaneously faces prejudices arising from the assumption that she is 'fair game' and somehow prone to immoral behaviour." [12]

"To make matters worse, in January 2011 the Iranian police imposed special regulations on estate agents designed to control property lets to singles" [13].

"Regarding the issuance of restraining orders by ringing courts, the professor said that there was no such thing as a restraining order against husband in the case where the wife is living with the husband." [21].

"If the court accepts a claim, she is entitled to receive economic support (nafaqa) until the couple reaches an agreement or the marriage. However, despite these provisions, it is very difficult for women to convince the court they are in danger from their husbands. Prior history of abuse is considered evidence of danger only if the battery has caused major injury; this suggests that the battery is permitted as long as it does not result in permanent harm or handicap." [21].

"3.2 Divorce: the practice of the courts
The specialist literature and position of women in Iran where divorce is concerned are unanimous in its contention that the practice of the family courts, where all judges are men, means that where a husband actively refuses to consent, it is an extremely difficult and lengthy process for a woman to initiate a divorce petition and bring it to a successful conclusion." [33]

21 Also referred to at para 24(7) of the Appellant's grounds of appeal is the following passage in the Amnesty International Report 2015 'You shall procreate: Attacks on women's sexual and reproductive rights in Iran', 113.15, which discusses two proposed Bills in the Iranian legislature:

"Bill 315 contains several provisions that act as a barrier to divorce, with a discriminatory impact on women. Article 19 provides for lawyers to be promoted and given positive performance reviews based on how many of their family cases result in marital reconciliation. Similarly, Article 20 proposes that judges receive special bonuses in divorce cases that end in marital reconciliation. While equally applicable to men and women on paper, these provisions will disproportionately affect women, given that men and women are subject to different grounds for divorce in Iran"

22 In summary, the above evidence appears to indicate that without the husband's consent to divorce, the relevant ground for divorce that the Appellant would have to establish would be under Article 1130 of the civil code, which reflects the terms of the Appellant's own marriage contract. This appears to require that beatings or other forms of violent behaviour which is habitual/sustained (motaref) and which is unacceptable in social custom and intolerable to the Appellant, is to be established by securing at least three convictions against her husband, which may be achieved by obtaining in relation to each incident of violence, a certificate confirming her injuries from the Department of legal medicine, and by presenting 3-4 witnesses to the violence.

23 The judge's acceptance at [33] that it would not be 'swift or easy' for the Appellant to obtain a divorce does, not, I find, engage sufficiently with the country information before him.

24 Further, I find that there the judge's apparent finding that it has become easier to obtain a divorce in Iran since 2002 is not supported by the evidence before him. The judge quoted at [31] the extract from the New York Times dated 6.12.10 (see paragraph 10 above). However, the 'paradox' of the increased numbers of divorces taking place in Iran is explained in detail in Ms Enayat's report (such detail being absent from the New York Times report); observers including the President of the Tehran family court express the view that the increase of divorces at the application of women is explained by men usually putting pressure on their wives to apply to the court for a Khul' divorce, with the man's consent, so that she loses all property and financial rights in the divorce. The increase in divorces by consent does not seem very relevant to the Appellant's case (where there is no consent) and the judge fails to take into account the reason for the increase; the 'backfiring' of the divorce system, against women.

25 For the above reasons, I find that the judge's decision contains material errors of law, and I set it aside. I announced that decision at the hearing. I retain the findings of fact made by the judge regarding the Appellant's account, which are not, Mr Tarlow agreed, vitiated by any error of law.

Re-making

26 The Appellant did not seek to adduce any further oral evidence and the Appellant was content that the matter proceed by way of further submissions as to re-making the decision. Mr Tarlow initially indicated that he was not in a position to make submissions as to re-making as he was not very familiar with the Appellant's expert evidence. I queried why he was not, given that paragraph 3 of the directions made at the time of the grant of permission to appeal contemplated that if the Tribunal set the decision aside, it would be likely to proceed to re-hear the appeal and to decide it, where no further oral evidence was required. Mr Tarlow agreed that those were the terms of the directions, and that he had read sufficient of the expert evidence to make submissions upon it.

27 The parties made submissions on the appeal, and referred to passages with the country information, which I recorded.

28 I reserved by decision.

Serious harm

29 I find that there is a reasonable degree of likelihood that the Appellant will suffer further serious harm from her husband if she is returned to Iran, even if she is not living in the former matrimonial home. It is likely that he will find out where she is living if she returns. The Appellant appears to be in contact with friends and relatives in Iran. Her married daughter spends part of her time living with her own husband's family, and part living at the Appellant's former matrimonial home. It would be unreasonable, in my view, to expect the Appellant to keep her whereabouts a secret from her daughter and other relatives and friends. The Appellant's account is that her husband has put pressure on friends and relatives in the past to bring about the return of the Appellant to the family home on the occasions when she attempted to separate from him. It is inevitable, I find, that the husband will hear that the Appellant has returned to Iran, and that he will put pressure on those around him to disclose the Appellant's whereabouts.

30 In any event, this is not a case where the Respondent has argued that the Appellant should return to Iran and live secretly, distant from her husband. The Respondent's position is that the Appellant is entitled and able to apply to the court for a divorce from her husband. Such an application necessarily brings about the likelihood that the Appellant's husband will come to know her whereabouts.

31 If he does so, his intentions are clear; to seriously harm her, and to take other measures; potentially to apply to the court for her to be banned from leaving Iran, and to require her return to the family home, it not being in dispute that both of these remedies is available to him in Iranian law. His ability to seriously harm her is also established by his past behaviour.

32 The evidence of the availability of effective protection from harm is intrinsically tied with the evidence about a woman's ability to obtain divorce. I find, contrary to the judge, that there has been no material improvement since 2002 in the ability of women, in contested divorces, to obtain a divorce. I take into account Ms Enayat's explanation for the paradox of the increased numbers of divorces taking place in Iran. Evidence cited at [21] above indicates that measures are currently proposed to make it more difficult to obtain a divorce, and to introduce incentives to lawyers and judges to bring about reconciliation. In January 2011 Police imposed special regulations on estate agents designed to control property lets to singles. The evidence in Ms Enayat's report chimes with the Appellant's own experiences, that Police often seek to dissuade complainant women from bringing complaints of violence against their husbands. It is very difficult for women to convince the court they are in danger from their husbands; prior history of abuse is considered evidence of danger only if the battery has caused major injury. Allegations of assault are to be supported by 4 male witnesses.

33 Even if it could be said that the Iranian legal system makes violent attacks by a persecutor punishable in law, it is questionable, to say the least, whether there is a reasonable willingness to enforce that law on the part of the law enforcement agencies: Horvath [2001] 1 AC 489. I also consider para 55 of Bagdanavicius & Anor, R (On the Application of) v Secretary of State for the Home Department [2003] EWCA Civ 1605:

"5) The effectiveness of the system provided is to be judged normally by its systemic ability to deter and/or to prevent the form of persecution of which there is a risk, not just punishment of it after the event; Horvath; Banomova. McPherson and Kinuthia.

6) Notwithstanding systemic sufficiency of state protection in the receiving state, a claimant may still have a well-founded fear of persecution if he can show that its authorities know or ought to know of circumstances particular to his case giving rise to his fear, but are unlikely to provide the additional protection his particular circumstances reasonably require; Osman."

34 For the present Appellant, there is ample reason to find that the Police in Iran know or ought to know of circumstances particular to the Appellant's case giving rise to her fear. I find, on the evidence before me, that the Police and Courts are unlikely to provide the additional protection her particular circumstances reasonably require. There will be no effective protection for the Appellant.

Separation and Divorce

35 I find that it is reasonably likely that the Appellant will not be able to secure a legal separation or a divorce from her husband. I refer to the evidence set out at [20]-[21] above and I repeat my observations at [22]. I find that the evidential hurdle that the Appellant would have to overcome in an application for divorce to which her husband would not consent, would be almost unsurmountable.

36 Even in relation to the conviction obtained in the United Kingdom, there is no evidence to indicate that such a conviction would count in the Iranian legal system towards one of the three convictions seemingly required to obtain a divorce. Even if it did, the Appellant would apparently be required to secure an additional two convictions against her husband in relation to the violence he has perpetrated against her. He was not convicted of any offences against her whilst they lived together in Iran. Given the passage of time and the difficulty in securing adequate evidence for the purposes of the Iranian legal system, I find that the prospects of the Appellant being able to secure convictions against her husband in relation to past abuse is very remote.

37 Clearly it would not reasonable to require the Appellant to return to Iran, to wait for further abuses to be inflicted upon her, and for her to then rely on those matters to bring about convictions against her husband for the purposes of securing a divorce against him.

38 In relation to a separation on the grounds of violence (as distinct from a divorce), I find, having regard to the evidence at pages [7] (separation) and [8]-[10] (divorce) of Ms Enayat's report, that there is equal reluctance by the Iranian courts to find proven the appropriate level of violence to warrant the relief sought by a woman in either case.

39 Necessarily, if the Appellant is unable to secure a legally endorsed separation from her husband, who would otherwise have the power to secure an order requiring her return to the home, this would entail a high degree of risk of serious further harm to her at his hands, if living in the same household. This crosses the threshold of harm so as to amount to persecution.

40 I find that the serious harm likely to experienced by the Appellant will be for reason of her membership of a particular social group; women in Iran, a PSG that the Respondent accepted existed, with reference to TB (PSG, women) Iran [2005] UKIAT 00065 (refusal letter, para 11).

41 Whether the question of an inability to divorce, considered separately (and distinct from a risk of further physical harm) is sufficiently prejudicial to the Appellant so as to amount to persecution is more difficult to answer. As per the Appellant's skeleton argument, Council Directive 2004/83/EC ('the Qualification Directive') provides as follows at Article 9 'Acts of persecution':

"1 Acts of persecution within the meaning of article 1 A of the Geneva Convention must:

(a) be sufficiently serious by their nature or repetition as to constitute a severe violation of basic human rights, in particular the rights from which derogation cannot be made under Article 15(2) of the European Convention for the Protection of Human Rights and Fundamental Freedoms; or

(b) be an accumulation of various measures, including violations of human rights which is sufficiently severe as to affect an individual in a similar manner as mentioned in (a).

2. Acts of persecution as qualified in paragraph 1, can, inter alia, take the form of:

(a) acts of physical or mental violence, including acts of sexual violence;

(b) legal, administrative, police, and/or judicial measures which are in themselves discriminatory or which are implemented in a discriminatory manner; ?"

42 Is the inability to divorce a severe violation of a basic human right? The right to marry is recognised at Article 12 of the ECHR. The Convention does not discuss the right to divorce. One could perhaps observe that the right to re-marry is being interfered with by the existence of obstacles to divorce. There are clearly judicial measures which are discriminatory against women in relation to divorce.

43 There is no authority shown to me to support the proposition that mere inability to divorce amounts to persecution. The Appellant does not appear to be in a new relationship and I am not told of any desire to re-marry.

44 I leave the question as to whether the discreet issue of the Appellant's inability (or very low probability of being able) to divorce crosses the threshold into persecution, undecided.

45 However given my previous findings that:

(i) the there is a real risk of further serious physical harm to the Appellant from her husband, in relation to which there will be no effective protection;

(ii) the likely inability of the Appellant to secure a legally sanctioned separation from her husband, brings with it a real risk that she may be required to return to her family home, thus increasing further the real risk of serious harm in (i) above; and

(iii) the risk to the Appellant is for a Refugee Convention reason,

the appeal is allowed under the Refugee Convention.

Article 8 ECHR.

46 The Appellant's skeleton argument before the First tier argued that extent of discriminatory measures likely to be experienced by the Appellant upon return would amount to a disproportionate interference with the development of her private and family life as protected by Art 8 ECHR. Given my findings above, it is not necessary for me to decide this.

Decision

The making of the decision of the First-tier Tribunal involved the making of an error on a point of law.

I set aside the decision.

I re-make the decision in the appeal by allowing the appeal on Refugee Grounds.

Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/269) I make an anonymity order. Unless the Upper Tribunal or a Court directs otherwise, no report of these proceedings or any form of publication thereof shall directly or indirectly identify the original appellant. This direction applies to, amongst others, all parties. Any failure to comply with this direction could give rise to contempt of court proceedings.

Signed: Date: 21.10.16

Deputy Upper Tribunal Judge O'Ryan