United Kingdom Asylum and Immigration Tribunal

FI and others (Bangladesh –presumptions-marriage –legitimacy.) Bangladesh [2005] UKIAT 00016

IMMIGRATION APPEAL TRIBUNAL

Date of hearing: 29 November 2004

Date Determination notified: 24 January 2005

Before
Mr H J E Latter (Vice President) Ms C St.Clair Mrs L.R Schmitt
Between

FI and others	APPELLANT
and
Entry Clearance Officer, Dhaka	RESPONDENT

For the Appellant: Mr D Blum of Counsel For the Respondent: Ms P Ellis, Home Office Presenting Officer
DETERMINATION AND REASONS
1. This is an appeal by the first and second Appellants against the determination of an Adjudicator, Mr J A Blair-Gould, who dismissed their appeal against the decision made on 26 August 2002 refusing them a Certificate of Entitlement to the Right of Abode in the United Kingdom as the son of the late Abdul Hoque (also referred to in many of the documents as Abdul Haque). At the hearing before the Adjudicator the appeal by the third Appellant was withdrawn.

Background

2. There is an extensive background to this appeal. The first Appellant was born on 5 December 1966 and the second on 8 January 1970. They assert that they are the children of Mr Hoque and Shafikun Nessa. They apply for a Certificate of Entitlement on the basis that they were born after their claimed father registered as a British citizen. There have been previous applications for an entry certificate. The first Appellant applied with his mother in January 1977. The application was refused. A notice of appeal was given out of time and it was held that there were no special circumstances making it right to extend time. A further application was made in 1978 which was refused and yet a further application by both Appellants and their mother in 1980. An appeal was eventually heard by an Adjudicator in 1984 and dismissed as the Adjudicator was not satisfied on a balance of probabilities that the Appellants and their mother were related as claimed to their father.
3. This application was made in December 2001. The Appellants were interviewed in August 2002. The reasons for refusing the application are set out in the explanatory statement dated 1 December 2002. The Entry Clearance Officer found that the Appellants and their sister gave conflicting stories which damaged their credibility. Documents were produced which the Entry Clearance Officer found to be unsatisfactory such as recently issued birth certificates when other documents had been produced during previous applications and appeals. The oldest passport he had for Mr Hoque was issued in April 1970 and he assumed that registration of citizenship had only been made a month or two before that date and he could not be satisfied that the Appellants were born after their claimed father.

The Hearing before the Adjudicator

4. The appeal was heard by the Adjudicator on 1 December 2003. Further documentary evidence was submitted which had not been before the Entry Clearance Officer. This included a letter from the Home Office to solicitors in England dated 7 October 2003 which confirmed that Mr Hoque's nationality certificate was issued on 29 December 1964 under Section 6(1) of the British Nationality Act 1948. The position of children born outside the United Kingdom and Colonies to a father who was at the time of birth a citizen of the United Kingdom and Colonies otherwise than by descent is that the children have such citizenship provided they are legitimate. They are treated as such if they are either legitimate at birth or if their parents have subsequently married. Therefore, it is necessary for the Appellants to prove that they are the children of Mr Hoque and that he was married to their mother, Shafikun Nessa. If so, they will be entitled to a Certificate of Entitlement.
5. For the purposes of this application the Appellants had obtained birth certificates by registering their births on 13 August 2002. The Entry Clearance Officer made the point that birth certificates in Bangladesh could be issued without any corroborating evidence and that births could be registered at any time. There must have been previous certificates submitted in respect of earlier applications and the Entry Clearance Officer questioned why certified copies of these had not been obtained as against re-registering the births. The Adjudicator agreed with these comments and noted that although the certificate stated the names of the Appellants' father and mother, it did not appear to show that the two parents were married. He commented that it was not known to him whether this was to be implied by the entries on the certificates or not. Certificates were also submitted showing the dates on which the first and second Appellants had left their primary school describing them in each case as the sons of the late Mr Hoque. There was nothing to indicate whether the paternity of the two Appellants was recorded in the school's contemporaneous documents or whether those certificates were repeating a description of the Appellants provided to their writer. There were witness certificates from local residents worded in identical terms. Each stated that they had known Mr Hoque since the beginning of his life. This would not have been possible for one witness who was aged about 40 as, according to the evidence, Mr Hoque was born on 11 August 1930.
6. Mrs Saida Uddin was called to give oral evidence. She said that she had known the two male Appellants as family friends. Her father and their father had been friends ever since she was born. Mr Hoque used to come and visit her family. When she went to Bangladesh, the Appellants with their mother Shafikun Nessa used to come and visit. She had been to Bangladesh when she was very young in 1973 and again from 1977 until 1984. She paid further visits for six week periods in 1993, 1996 and 2001. Mr Hoque used to describe the Appellants as his children. She said that she saw them when she was in Bangladesh. Mr Hoque used to give her family presents to take back to his children.
7. She did not know whether Mr Hoque had ever divorced his wife. She had died about a year before him and in the intervening time he had remarried. There was a daughter from the second wife. In cross-examination she said that she had got to know Shafikun Nessa very well. She and Mr Hoque were not divorced because they lived together and that would not have happened if people were divorced. In answer to questions from the Adjudicator she confirmed that her own father had come to the United Kingdom in 1962. Her father and Mr Hoque had worked together. Mr Hoque's first marriage was in Bangladesh. When he was living in Birmingham and then in London his wife always lived in Bangladesh but he went back from time to time. She did not know about the previous applications. Mr Hoque's wife was quite well off in the village and he used to send her money. The first Appellant lived in the village and was married with two young children. He had a shop and would like to come to the United Kingdom. The second Appellant was not married and was also a partner in the shop. They both lived in their father's old house.
8. The Adjudicator confirmed that the issue in this appeal was whether the Appellants could demonstrate on a balance of probabilities that they were entitled to the Certificates of Entitlement. He commented that there was a considerable amount of evidence not available to the Entry Clearance Officer and rightly made the point that in the light of the history of the matter, the previous findings of the Adjudicator in 1984 and the evidence revealed in his determination, it was necessary for him to consider the evidence with a very careful eye. He believed that Mrs Uddin was a truthful and honest witness and despite all the previous doubts and inconsistencies the Appellants had established that it was more likely than not that they were the children of Mr Hoque. He went on to say that he was concerned that no evidence of any kind had been placed before him to establish that they were the legitimate children of Mr Hoque or that he was ever lawfully married to their mother. He appreciated that this was not the matter principally in issue before the Entry Clearance Officer but that was entirely because of the evidence produced to him in connection with the claim and its past history. He noted that in the 1980 explanatory statement there was reference to an alleged Bengali marriage certificate produced showing a marriage on 18 February 1946 but that was false because Mr Hoque had signed his name in English twelve years before he went to the United Kingdom and first learnt any English. The Adjudicator said that he could make no assumption that there was ever a lawful marriage between Mr Hoque and the Appellants' mother. In these circumstances the appeals were dismissed.

The Grounds of Appeal and Submissions

9. In his grounds of appeal and submissions, Mr Blum submitted that the Adjudicator had failed to take into account the cultural background and the lack of likelihood that the Appellants were illegitimate. He had failed to apply the presumption of marriage or the presumption of legitimacy. Considering the background of Mr Hoque and his wife, it was extremely unlikely that they would not have married. They lived in a small village where illegitimacy would not be tolerated. He had failed to take relevant considerations into account and failed to give proper weight to the evidence of Mrs Uddin whose evidence supported the fact that the parties were regarded as married. Mr Blum referred the Tribunal to Halsbury Laws of England volume 29(3) at paragraph 142, to Muslim Family Law (3^rd edition) written by Pearl and Menski, a document dealing with presumptions when assessing widow's benefit and finally to the Tribunal determination in Ali (18900).
10. Miss Ellis submitted that throughout the various appeals the issue of the relationship of the Appellants to their mother and to Mr Hoque had been in issue and never accepted. The Adjudicator was perfectly entitled to consider even though he found that the Appellants were Mr Hoque's children whether they were legitimate. There were serious discrepancies throughout the evidence and it was acknowledged that Mr Hoque had previously resorted to deception. If the Appellants were illegitimate there would be good reason to keep that issue under wraps. The Adjudicator had taken all relevant evidence into account and reached a decision properly open to him.

Consideration of the Issues

11. There is no challenge to the Adjudicator's findings that the Appellants are in fact the children of Mr Hoque and Shafikun Nessa. In the light of the oral evidence from Mrs Uddin taken with the documentary evidence, that finding was clearly open to the Adjudicator for the reasons he gave. They were born in 1966 and 1970 respectively after the date now accepted in 1964 when Mr Hoque registered as a citizen of the United Kingdom and colonies. The remaining issue is whether the Adjudicator erred in law in his finding that the Appellants failed to show that they were his legitimate children.
12. Mr Blum makes a preliminary point that there was an issue of procedural unfairness in that the Adjudicator did not make it clear at the hearing that there was an issue as to legitimacy and whether Mr Hoque and his wife had married. In the light of the view we take on the substantive issues we need not deal with this ground save to note that it does seem to us that it was implicit in the issues before the Adjudicator that it was necessary to show that the Appellants, if sons of Mr Hoque, were legitimate.
13. Mr Blum's main point is that the Adjudicator was wrong in his approach to assessing whether the Appellants were legitimate. The adjudicator commented that no evidence of any kind had been placed before him to show that they were legitimate or that their father had ever lawfully married their mother. Mr Blum argues that this ignores two presumptions. The first is the presumption of marriage. He referred to Halsbury's Laws of England and to paragraph 142 in volume 29(3) which reads:-

"Where a man and woman have cohabited for such a length of time, and in such circumstances, as to have acquired the reputation of being man and wife, a lawful marriage between them will be presumed, even if there is no positive evidence of any marriage ceremony having taken place, particularly where the relevant facts have occurred outside the jurisdiction; and this presumption can be rebutted only by strong and weighty evidence to the contrary."

This presumption is adopted when considering whether widow's benefit is payable. The guidance notes produced in evidence refer to the presumption of a valid marriage, which arises from the acceptance for a substantial period that a man and woman are married only being rebuttable by cogent evidence.

14. The Tribunal were also referred to Muslim Family Law. This sets out the strong presumption in favour of marriage in Muslim law. When dealing with parents and children, the point is made that illegitimate birth is severely stigmatised in Muslim law. It threatens a dominant principle, purity of the bloodline through males. Concern over legitimacy seeks to avoid confusion over paternity but also reflects a desire to uphold proper sexual mores in society and to avoid illicit sexual relations. There is a presumption that a child born into a valid marriage is a legitimate child and, perhaps in order to avoid the drastic consequences of individuals being stigmatised as illegitimate, all the Sunni schools recognise gestation periods beyond the medically recognised maximum.
15. The Tribunal were referred to Ali where the Tribunal dealt with the issue of whether a child born within a valid marriage was to be treated as legitimate making the point that there was a presumption in both Muslim law and English law that the child should be treated as legitimate. Mr Blum argues that as it is now accepted that the Appellants are the children of Mr Hoque it can properly be presumed that there was a valid marriage. He bases this submission on the fact that Mr Hoque and his wife were according to Mrs Uddin's evidence regarded as married by those who knew them such as her father and also in the village where the Appellants and their mother lived.
16. In her further witness statement Mrs Uddin says that there is a stigma attached to illegitimate children in Bangladesh: this is not culturally or religiously accepted. She says that society as it was when Mr Hoque and his wife were living together would not have accepted this, especially as they were living in a close-knit village. It would not be comprehensible to believe that the Appellants were illegitimate. The family lived together. The Appellants were not treated any differently by other people and were regarded as part of Mr Hoque's family.
17. The Adjudicator accepted Mrs Uddin as a truthful and honest witness. Her evidence on these issues set out in her further statement is entirely consistent with the cultural background set out in Muslim Family Law. Mr Hoque lived and worked in the United Kingdom but remitted money to Shafikun Nessa. He returned on occasions and further children were born to them. The Tribunal also note that both Appellants live in property which had been owned by their father. We are satisfied that on the facts proved and in particular the finding that the Appellants are the children of Mr Hoque taken with the length of the period of cohabitation with their mother, a presumption of marriage does arise. This can only be rebutted by strong and weighty evidence.
18. The evidence pointed to by Ms Ellis on behalf of the respondent is the fact that it was accepted when the appeal was heard in 1984 that Mr Hoque behaved dishonestly in his dealings with the Inland Revenue by claiming allowances for two bogus children. It is clear from that determination that there was considerable confusion in the evidence generally as to the chronology of events and the documentary evidence was unsatisfactory. On the basis of the information before the Adjudicator in 1984, it is clear why he dismissed the appeal. However, there was further evidence before the Adjudicator in 2003 and he was entitled, as he did, to accept that evidence as credible. The Appellants succeeded in establishing that they were the children of Mr Hoque and Shafikun Nessa. Their parents had been in a relationship akin to marriage for many years.
19. Taking into account the cultural and religious background of the Appellants and their parents and in particular the stigma attached to illegitimacy in Muslim society, the Tribunal is not satisfied that the presumption of marriage has been rebutted. Therefore, on the basis of the facts found by the Adjudicator, we are satisfied that he erred in law by leaving the presumptions of marriage and legitimacy out of account when assessing whether Mr Hoque and Shafikun Nessa were married.

Decision

20. For the reasons the Tribunal have given we are not satisfied that these presumptions have been rebutted and in these circumstances the appeals by the first and second Appellants are allowed.

H J E LATTER

VICE PRESIDENT

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