SL (Unmarried mother with mixed race child)
| Jurisdiction | UK Non-devolved |
| Judge | McGeachy,Freeman |
| Judgment Date | 16 April 2012 |
| Neutral Citation | [2013] UKUT 46 (IAC) |
| Date | 16 April 2012 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
[2013] UKUT 46 (IAC)
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
UPPER TRIBUNAL JUDGE Freeman
UPPER TRIBUNAL JUDGE McGeachy
For the Appellants: Mr J Collins, of Counsel instructed by Messrs Montagues
For the Respondent: Mr E Tufan, Senior Home Office Presenting Officer
SL (Unmarried mother with mixed race child) Azerbaijan CG
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1. Azerbaijan is a country with high levels of corruption and there is clear evidence that political dissent is not tolerated.
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2. There is nothing to indicate that the State would in any way penalise unmarried mothers (approximately 10% of mothers) or those who have mixed race children. There are in place some support mechanisms for single parents.
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3. In order to access benefits, accommodation or work, a residence permit (a propiska) is required. There is nothing to indicate that Azerbaijanis who have lost their propiska would be unable to obtain a replacement. Children have access to education. There is some evidence that Government officials may require blat – a system of favours, from those who need to obtain housing or other benefits but there is nothing to suggest that that system is universal and would mean that those who refused to offer blat would be shut out from accommodation, schooling or other benefits.
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4. Although the Azerbaijani Government has ratified most Conventions relating to human rights and the compliance with the norms therein is improving, the reality is that the improvement is from a low starting point. Many NGOs dealing with human rights exist in Baku and there is also an Ombudsman to whom complaints can be made.
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5. Although in the early 1990's there was discrimination against those of Russian ethnicity the situation for them was normalised by 1996. Ethnic Russians make up approximately 8% of the population. Prejudice may still exist but 80% of Ethnic Russians are in work — only slightly fewer than those in work in the population as a whole (83.7%).
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6. There is some discrimination against Christians but there is freedom for Christians to practice their religion.
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7. Azerbaijani society, particularly in rural areas, is traditional and attitudes to women are conservative — nevertheless approximately 10% of mothers are unmarried. Family support networks (krisha) are a strong feature of family life and benefit family members, for instance when obtaining work.
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8. Although the concept of family honour among more traditional families in Azerbaijan (namus) exists there is nothing to indicate that there is a real risk of honour killings or other ill-treatment of those who are considered by members of their families to have brought dishonour on the family. Nor is there any indication that there would not be a sufficiency of protection for those women.
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9. Azerbaijan is a traditional society and those who do not fit in, such as those of mixed race may well face discrimination and prejudice. Armenians and Lezghins are particularly likely to face discrimination.
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10. There is nothing to indicate that a single parent without parental support or her child would face treatment which would either amount to persecution or cross the threshold of Article 3 ill treatment.
Ms SL is the mother of the second appellant. In this determination we refer to the first appellant as “the appellant”. They are citizens of Azerbaijan. They appeal against decisions of the Secretary of State made on 6 August 2009 to remove and to refuse asylum. Their appeals were heard by Immigration Judge Malins on 25 November 2009 and dismissed. Applications for reconsideration were then made. An order for reconsideration was made by Senior Immigration Judge Jordan on 11 January 2010 and on 24 March 2010 His Honour Judge Pearl, sitting as a Judge of the Upper Tribunal, found that there was a material error of law in the determination of Immigration Judge Malins (“the judge”). In his decision he indicated that this appeal should come before the Upper Tribunal as a possible country guidance case.
The appellant arrived in Britain on 22 October 2004 and travelled to Antigua on 27 December 2004. She returned on 9 January 2005. Her leave to enter expired on 21 April 2005. The appellant overstayed. In 2007 she gave birth to D, the second appellant. Her application for asylum was made on 13 July 2009.
The basis of the appellant's claim was that she feared returning to Azerbaijan because her family had told her that she would be killed and that her son would face discrimination because he was of mixed race – her son's father was “black”. She was of Russian ethnicity and a Christian.
The judge appeared to find that the appellant was credible in so far as what she said her family had said to her but did not accept that the appellant would face persecution on return. She did not accept the conclusions in a report by Mr Robert Chenciner which was before her.
Senior Immigration Judge Jordan ordered reconsideration on the basis that the judge had not provided adequate reasons for rejecting Mr Chenciner's evidence. That indeed was the reason that His Honour Judge Pearl found a material error of law in the determination. In his decision, which is at annex 2 hereto, he referred to Mr Chenciner's report which had stated:-
“… The main risk appears to me to be from the appellant's traditional family in the form of a punishment to the appellant and her son for besmirching family honour according to adat customary law. In her case she risks severe beating or being put to death.”
In his decision His Honour Judge Pearl indicated that it might be appropriate for this appeal to be used as a country guidance case as this appeal was “the first of its kind” and that it would be appropriate to hear evidence from Mr Robert Chenciner. The appeal was then listed as a country guidance case before us. Before the hearing Mr Chenciner prepared a second report and he gave oral evidence at the hearing.
The first report of Mr Chenciner is dated 30 September 2009. That was the report before the judge and before His Honour Judge Pearl. A second report was prepared for the hearing before us on 27 January. At the end of the first day of hearing and after we had heard submissions from both representatives Mr Collins indicated that he wished to make further written submissions. These were received at the beginning of February but with them was included a document from Mr Chenciner entitled “Further submissions re asylum appeal of Mrs S L” and are referred to herein as the third report.
Mr Chenciner is well known for his reports on conditions in the countries of the Caucasus to which he has travelled over many years. He was, however, last in Azerbaijan in 2003. In paragraph 1.2 of his first report, he gave his gloss on the appellant's family circumstances, stating that after her father had been killed in 1991 her mother had remarried an ethnic Azeri Muslim and converted to Islam with the appellant's upbringing changing from Christian to Muslim “with strict regulation of her as a daughter”. He noted, however, that she continued to attend a Lutheran church until she had left Azerbaijan. He said that the appellant had two brothers, the eldest, S, being a strict Muslim, and the youngest, O, being a Christian (he had in fact transposed their names). He noted that the appellant said that her step-father worked in “offshore oil gas industry metal construction”, her eldest brother worked in the fish industry and her younger in furniture construction. Her mother had worked as a nursery teacher.
Having referred to the appellant's relationship with D's father, he then described the appearance of the various ethnic groups in the Caucasus.
In paragraph 2.1.1 he stated that in Azerbaijan, as in other Caucasian countries, marriage was important as re-affirming order in society and clan structures. Initial negotiations were controlled by parents and if the prospective bride or groom wished to refuse marriage, that must be done early on in the negotiations. Wedding festivities are expensive and the status and future of both families were linked to a good marriage. He went on to say:-
“Traditional Azeri families reflect a macho male patriarchal society and if a daughter were to upset the rules of conduct, the social consequences for both families is shame and disgrace with possible violent reprisals according to customary law based on avenging family honour.”
He added:-
“With regard to the appellant, her step-father and Islamic religious half-brother, following her widowed mother's remarriage and conversion to Islam, would view having a child outside wedlock as a family insult, especially if that child were noticeably different i.e. black. It is a disgrace against the family honour and a denial of the important societal process of marriage in union with another suitable Azeri family. The result is that they would want to take violent continual revenge on her, even after divorce for dishonouring their name and losing the family a structural kinship opportunity as well as a possible substantial sum of money in dowry. Her mere presence in Azerbaijan with her child would likely be seen as a constant reminder of their perceived dishonour and they would do whatever was necessary to remove her, to beat her and punish her, or to prevent her working or otherwise leading a normal life – and even kill her.”
Having referred to a book which he called a “Caucasian Romeo and Juliet” published in 1937 which set out the tragic consequences of a mixed love match he then referred to the planned murder of Sardar Bibi, a British born ethnic Pakistani, in January 2003, who was killed by her cousin because she persuaded her father to...
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