Tribunal decisions

The decision

IAC-AH-SAR-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/03743/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 3 March 2017
On 16 March 2017

Before

UPPER TRIBUNAL JUDGE CLIVE LANE

Between

HN
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr T Shah
For the Respondent: Mr S Walker, Senior Home Office Presenting Officer

DECISION AND REASONS
1. The appellant, HN, was born in 1989 and is a female citizen of Bangladesh. She entered the United Kingdom as a student in December 2009. She claimed asylum in 2015 and by a decision dated 19 March 2016, the respondent refused her application. The appellant appealed to the First-tier Tribunal (Judge Sweet) which, in a decision promulgated on 7 October 2016, dismissed the appeal. The appellant now appeals, with permission, to the Upper Tribunal.
2. As Judge Sweet noted [31] there are two limbs to the appellant’s asylum claim. First, she claimed that political opinion would be imputed to her on account of her father’s political activities and secondly, being a single parent of two children born out of wedlock she would face discrimination and ill-treatment. Judge Sweet noted that the “appellant’s representative [acknowledged] that the details of [the appellant’s] father’s political activities were extremely unclear as were the alleged false cases which had been lodged against them”. Thereafter, Judge Sweet did not deal with that element of the asylum claim again and, significantly, the grounds of appeal to the Upper Tribunal are silent as to that aspect of the case, being concerned instead with the second limb of the asylum application. In respect of that part of the claim, Judge Sweet summarised the position as follows:
In respect of the second part, namely being a single mother of two children born out of wedlock, the facts are these. She met her partner [MU] when they were students in 2010. Their two children were born on 28 February 2012 and 11 December 2013. The appellant was keen to marry her partner but he was unwilling to do so. He assisted her with the costs of her second course in the UK and supported her in her Tier 1 Entrepreneur application which was made in December 2012. It appeared that when that application failed [in June 2015] she wished to get married and return to Bangladesh but he refused to take either of those steps. It was also on that occasion (in June 2015) that the appellant had an argument with her father, who had disapproved of her relationship with MU and having children out of wedlock and she says that she had not had any contact with him since then. Nor has she had any contact with MU, whom she thinks may have left the UK. He does not have any contact with his children.
3. The judge refers to the relevant country guidance case (SA (Bangladesh) CG [2011] UKUT 00254). At [35], Judge Sweet wrote:
However, the appellant is an educated person although she would be a single person on return to Bangladesh, the birth certificates of her two children do identify the father of her children. In my view, it would not be necessary for her marital status to be revealed as the identity of the father of her two children is shown on those birth certificates. She has the benefit of education and the fact that her father works in business and may be able to offer employment and possibly accommodation, even though they appear to have had a disagreement. She has shown herself to be educated and resourceful in the UK and in my view there is no reason why she would not be able to use the same skills on return to Bangladesh. For all these reasons, despite the objective evidence, I do not think that such difficulties that the appellant may face on return would amount to persecution.
4. This is not a case which turns upon the judge’s assessment of credibility. At [32] (see above), the judge appears to have accepted the appellant’s account of having given birth to children out of wedlock. SA (Bangladesh) provides guidance as follows:
(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.
(3) 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.
(4) 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.
(5) 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.
5. Judge Sweet acknowledged [34] that there was:
Certainly evidence of discrimination, gender-based violence and sexual harassment and women do not have equal rights with men [in Bangladesh]. There may also be difficulties with internal relocation where there is no support network and where they have no real prospect of securing access to a livelihood. There are difficulties for single women in respect of housing and employment, whether they are divorced, widowed, separated or had never married. There was an added factor in the appellant’s case that she is not divorced and has had children outside wedlock.
6. The grounds of appeal challenge the judge’s assessment of risk. In particular, the appellant queries why the judge believed that she would have a family support network (i.e. her father) to assist her on return to Bangladesh whilst accepting that the appellant had fallen out with her father. Refusing permission in the First-tier Tribunal, Judge Parkes drew attention to the decision at [35] (see above) and the fact that the appellant had the “benefit of education” and that this would enable her to overcome the difficulties for female returnees outlined in SA (Bangladesh) and discussed by Judge Sweet at [34].
7. The difficulty in this decision is that the judge at [32] has refrained from making firm findings of fact whilst appearing to accept the account given by the appellant as true and accurate. The appellant claims that she had not had contact with her father since June 2015 when she fell out with him. In the light of that claim (and the absence of any firm finding by the judge), it is problematic to assess risk on the understanding that the father “may be able to offer employment and possibly accommodation” to the appellant and her children; in the light of the appellant’s evidence, there seem to be no grounds for making such an assumption. Moreover, the existence (or lack) of a support network in Bangladesh appears, in the light of the guidance of SA (Bangladesh), to be of significant importance. The appellant will be a single woman returning to Bangladesh with two children born out of wedlock. The judge’s observation that she may not need to disclose her marital status ignores the fact that the appellant is likely eventually to be asked about her status; she should not be expected to conceal the reason why she is no longer with the father of her children. I accept the her education and skills may indeed assist her but I find the judge’s analysis is inadequate primarily because he has failed to make clear findings of fact regarding the state of the relationship between the appellant and her father and the likelihood of the father assisting the appellant upon return to Bangladesh.
8. I set aside the decision of the First-tier Tribunal and return the appeal to that Tribunal (not Judge Sweet) for it to re-make the decision. I find the decision of Judge Sweet to be definitive as regards the appellant’s claim that she would be at risk on account of her political activities (a claim which she appears to have dropped in any event). The First-tier Tribunal will need to concentrate only upon the risk to the appellant upon return to Bangladesh with two children born out of wedlock. I set aside such findings as the judge has made on that issue; it will be for the next Tribunal to make clear, unequivocal findings of fact as regards (i) the likelihood of the appellant’s unmarried status coming to light; (ii) if it does come to light, whether she would face a real risk of ill treatment (iii) whether she is likely to enjoy the support of her father or others in Bangladesh and the extent to which such support may mitigate any risk; (iv) the extent to which the appellant may be able to overcome any potential difficulties in Bangladesh because she is well educated and has employment skills. Remittal to the First-tier Tribunal is appropriate in this instance given that there will need to be a new and thorough fact-finding exercise regarding the matters I have detailed above.

Notice of Decision
9. The decision of the First-tier Tribunal which was promulgated on 7 October 2016 is set aside. The First-tier Tribunal’s findings as regard the appellant’s claim that she would be at risk on account of the political activities of her father shall stand. The remaining part of the appellant’s claim (i.e. that part based upon her claim that she is an unmarried mother of two children) will be determined by the First-tier Tribunal.
Direction Regarding Anonymity – Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008
Unless and until a Tribunal or court directs otherwise, the appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify her or any member of her family. This direction applies both to the appellant and to the respondent. Failure to comply with this direction could lead to contempt of court proceedings.

Signed Date 15 March 2017

Upper Tribunal Judge Clive Lane

TO THE RESPONDENT
FEE AWARD
No fee is paid or payable and therefore there can be no fee award.

Signed Date 15 March 2017

Upper Tribunal Judge Clive Lane