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OUTER HOUSE, COURT OF SESSION
[2021] CSOH 97
F70/20
OPINION OF LADY WISE
In the cause
MR H
Pursuer
against
MRS W
Defender
Pursuer: McAlpine; Turcan Connell
Defender: G Dewar; Thorley Stephenson
1 October 2021
Introduction
[1]
This case involves the proposed return of two of the three children of the parties'
marriage from Scotland to Dubai, UAE. The children have refugee status in this country
and have been living in the west of Scotland since mid-August 2017. The parties to the
action are husband and wife and so I will refer to them as Mr H and Mrs W respectively.
They married in Sudan in December 2001. They have three daughters. I will refer to the
oldest child as YW, the middle daughter as SW and the youngest child as OW. The oldest
child is 18 and not the subject of these proceedings. The younger two children have, at the
time of completing this opinion, just attained the ages of 15 and 11 respectively. All three of
2
the parties' daughters were born in UAE where the family lived until July 2017 when they
came to the UK for a holiday in London.
[2]
While the parties were in London in the summer of 2017 the defender claimed
asylum for herself and the three children. The circumstances in which she did so are
contentious as between the parties and were the subject of evidence at proof. Mr H returned
to Dubai at the end of July 2017 and has continued to be resident there. The oldest daughter
YW returned to Dubai of her own volition in January 2020. She has lived there with her
father since that time. The significant issues between the parties include the pursuer's claim
that the defender's application for asylum in 2017 was a false one. His position is that she
wanted to secure, ultimately, UK citizenship for herself and the three girls. He contends that
he and his wife were still very much operating as a couple and as a family until early 2020.
The defender's position is that the asylum claim she made was genuine and that the two
younger girls should be permitted to remain in this country, consistent with their refugee
status and in their best interests. The defender also contends that, even if the pursuer
established that it was in the interests of the two younger children to live with him in Dubai,
any order for their return would be unenforceable in law and could not serve any practical
purpose. I heard evidence in submissions over a four day period in relation to these
contentious issues.
Undisputed facts
[3]
The defender was granted asylum in the UK for a period of 5 years on 13 December
2017. SW and OW are dependents on the asylum claim made by the defender and were also
granted leave to remain in the UK on 13 December 2017. In May 2018 the pursuer Mr H
made an application to the UK authorities for a family reunion visa. Mrs W sponsored her
3
husband's application. Mr H's initial application was refused and matters progressed first
to the First-tier Tribunal and then the Upper Tribunal. The decision of the First-tier Tribunal
judge (number 6/8 of process) was to the effect that there was no reason why the defender
and the children could not return to UAE in order to continue family life there. In
April 2019 the parties and their children spent a holiday together in Georgia. In
December 2019-January 2020 the parties and their children visited Georgia for a second time.
On that occasion the defender and the children travelled to Dubai and from there the parties
and the children travelled together to Georgia.
[4]
The parties eldest daughter YW suffered mental health difficulties while in Scotland
and was absent from education for a period. The local social work department was involved
and she was accommodated. There is no current relationship between YW and her mother.
She enjoys a close relationship with her father. The pursuer and his younger daughters
maintained contact through FaceTime and other electronic means until October 2020 when
these proceedings were raised. Contact resumed thereafter following an interlocutor of this
court on 10 December 2020. The current level of FaceTime contact was increased by
interlocutor on 20 May 2021 and now takes place for a period of up to one hour each day.
[5]
Prior to the summer of 2017 all three children attended an international school in
Dubai where they performed well. The two younger girls SW and OW currently attend
local schools in Glasgow where they are also achieving relatively high standards of
educational attainment. During the course of these proceedings both children met with
Miss Donachie, a child welfare reporter appointed by this court to elicit their views on the
orders sought in these proceedings. Miss Donachie's report comprises number 15 of
process. SW told Miss Donachie that she was sad that she could not live with her older
sister and her father. She said that even if her mother was to return to Dubai she would
4
want to live with her mother if the family could not all live together. She then said that it
would be good if she lived with her dad but she would be sad about leaving her mum. She
also said that she preferred living in Dubai over Scotland. She said the weather was better
in Dubai. The reporter records that SW appeared h esitant throughout their meeting. As the
meeting progressed and she was asking SW to think about her mum living in Scotland and
her dad in Dubai SW became visibly upset. She told the reporter that she wanted her family
to be reunited and all live together again. Miss Donachie concluded that SW preferred
living in Dubai to living in Scotland but there was less clarity about the views that she was
expressing in relation to residence and direct contact with her dad as at times her views
appeared to be a bit muddled. It was clear that she felt uncomfortable speaking with the
reporter and she was obviously upset by the division of her family.
[6]
OW was quite clear in the views she expressed to Miss Donachie. She said that she
would like to go and visit her dad when she is older but she does not like to travel and likes
to stay at home. She said that even if her dad did not live in Dubai she would still want to
live with her mum although she qualified that with "I don't think so." She said that if her
mum moved away from Scotland she would want to go with her and that she does not want
to leave her mum. She said that she did not know how she would feel if the judge decided
that she was to spend time with her dad or live with her dad but that she would probably
feel sad. She does not want any of the current arrangements to change. The reporter
records that OW was very quiet and it was difficult to engage her in a conversation.
Evidence led at proof
[7]
The pursuer Mr H gave evidence and adopted his affidavit number 23 of process as
part of his evidence. His position was that the parties enjoyed a comfortable and enjoyable
5
lifestyle in Dubai until July 2017 when they came to London for a holiday. They had return
flight tickets to Dubai and there had been no question of a plan to remain in the UK when
they arrived. He said that it was his wife's idea to try to stay in this country by claiming
asylum. He did not approve of the plan but he agreed to help her. Friends recommended
an individual named Ali Arbab who could prepare a false asylum story on the defender's
behalf. Mr H attended the first meeting with Ali Arbab and his wife at a Costa Coffee shop
in Shepherd's Bush in London. He accompanied his wife because he was concerned about
her meeting a strange man alone in London. Thereafter, Mrs W asked her husband to
double check whether Ali Arbab was the best person to prepare such a claim. The couple
went to some Sudanese shops in Shepherd's Bush market and Mr H asked around about
Ali Arbab and was assured that he was the best person to secure false asylum for Sudanese
citizens. According to the pursuer, prior to the trip to the UK he and his wife had never
discussed any possibility of making a false asylum claim. Mr Arbab charged around £1500
to prepare the false claim for the defender and the pursuer spoke to WhatsApp messages
between himself and his wife (number 6/44 of process) during the period 27 July to
29 November 2017. He confirmed that a message of 27 July was sent to him by his wife in
which she stated that she had paid Ali £720. That had been a part instalment for the work he
had done in preparing the claim. The balance was payable before the defender's interview
with the Home Office. Mr H's position was that he was concerned about Ali Arbab and
tried to persuade his wife not to go ahead with the application but she was determined to do
so. The pursuer said that although he was not willing to make a false asylum claim with his
wife, she had said that he could join her and the children at a later date by applying for a
family reunion visa.
6
[8]
Mr H described a diagram that he said was drawn by Ali Arbab at their first meeting
explaining the full process of claiming asylum and what was likely to follow. He then wrote
the false asylum story on behalf of the defender, in Arabic. The pursuer confirmed that
number 6/43 of process was the story that Mr Arbab had handwritten in the couple's
presence. The defender had given the pursuer a copy of the story in July 2017. The
defender was told to memorise the story and impart its contents to the Home Office at
interview. The pursuer said that after he returned to Dubai at the end of July he was in
regular contact with his wife and was aware of the initial screening interview she attended
after she sought asylum. He understood from her that Ali Arbab had attended but sat in a
café nearby the office. Mr Arbab had taken hold of the defender and children's valuable
possessions such as mobile phones and tablets so that it would look as if the defender had
no money. The defender and the children were immediately moved to Scotland and the
defender's main interview with the Home Office took place there in November 2017. After
the defender and children were given leave to remain in the UK until 12 December 2022 the
pursuer realised that they were not going to return but he and his wife continued their
frequent contact through WhatsApp messages and Skype as illustrated in the documents
numbers 6/44 and 6/50 of process.
[9]
The two central elements of the defender's asylum claim had been first that she had
been arrested by the Sudanese security service in 2015 and so was fearful of prosecution if
she returned there and secondly that her daughters were at risk of being subjected to female
genital mutilation (FGM). The pursuer's position was that both allegations were fabricated
to justify why the defender should be given refugee status. He said that his wife had never
been arrested for anything at any time in her life. The family had visited Sudan in July 2015
to see relatives. He thought that that date had been mentioned because if the defender's
7
entry visas and so on were checked the Home Office would be able to see that she had in
fact been in Sudan in 2015. The pursuer said his wife never had any involvement in political
work in support of the armed Darfuri movements anywhere. He disputed that the defender
belonged to a Darfuri tribe called Tunjur. The whole story fabricated by Mr Arbab was
untrue and he personally had witnessed it being handwritten by Mr Arbab.
[10]
In relation to Mr H's own application, he had sent his passport to the embassy in
May 2018 for this but it took 10 months to be processed and it was not until March 2019 that
he asked for entry clearance to the UK as a visitor to have contact with his children. That
was refused and he identified that point as the one where he tried to persuade his wife to
return to Dubai. The defender said that he sh ould appeal the decision but that was
unsuccessful and permission to appeal to the Upper Tribunal was also refused. By
March 2020 the pursuer felt that he had exhausted all avenues to re-join his family. During
the family holidays to Georgia in 2019 he had tried to persuade the defender to return to
UAE but she was insistent on staying in the UK until British passports were secured. When
it became apparent that the defender would not return to Dubai the pursuer notified the
Home Office of the false nature of his wife's claim (the correspondence was lodged as
numbers 6/39-41 of process). On FGM, Mr H's position was that he is strongly against its
practice and it is not something carried out on any female within his wider family other than
his elderly mother who had been subjected to FGM as a young girl. However, his mother
had become an educated and cultured woman and had never put pressure on him or even
suggested to him that FGM be carried out on any of his three daughters. The practice of
FGM is now illegal in Sudan. The pursuer was obviously aware that the defender had been
subjected to FGM when she was very young and they had discussed it when they were first
married. The defender had said that her own mother h ad carried out the procedure. Mr H
8
described his mother-in-law as an uneducated woman, and he understood that all the
women in his wife's family had been subjected to FGM. The false story that was creat ed by
Ali Arbab was that the defender had become alarmed because the pursuer came under
immense pressure while in London in July 2017 from his family who kept phoning and
insisting that the girls be returned to Sudan to undergo FGM. The pursuer said this was
entirely untrue and unfounded and he thought it nonsensical to suggest his family would
begin to exert such pressure on him when the family was in London rather than in Dubai
where they had been for 15 years. He had not been in contact with his mother while in
London.
[11]
The pursuer produced various family photographs of himself, his wife and their
three daughters on the two family trips to Georgia numbers 6/13 and 6/14 of process. The
family had holidayed there as soon as Mr H's passport was again available to him from the
Home Office. After the second Georgia trip the five of them flew back from Tbilisi to Dubai
and the defender and the children then had an onward flight to Glasgow. However the fir st
flight was delayed by 5 or 6 hours and so the connection to Glasgow was missed. Then, due
to torrential rain and storms in the Middle East the new flight to Scotland was cancelled and
the defender and children were in a hotel for two nights, 13-15 January 2020, while waiting
to return to Glasgow. The parties were in contact until the defender returned to Glasgow
after which she stopped communicating with him without providing any reason. By that
time their eldest daughter YW had become extremely unhappy and was not attending
school. She was desperate to return to Dubai but the defender was concerned that the Home
Office might find out. Eventually the defender had agreed that YW could return and said to
her that she and the two younger children would go back after UK passports were issued.
YW flew to Dubai airport where she was met by Mr W and the two of them travelled to an
9
airport in Ethiopia and then flew on together to Sudan. This was necessary because YW
could not enter Dubai without her passport. The pursuer obtained Sudanese travel
documents for her from the consulate in Dubai. The pursuer could only stay there for three
days but YW stayed a little longer in Sudan which she wanted to do as she had some friends
there who had studied with her in Dubai. The pursuer pointed out that the defender had
agreed to YW returning to Dubai against the background of the unfounded allegations she
had made. Had she been genuinely concerned that her daughter might be subjected to FGM
she would not have done so. YW was much happier since returning to Dubai and her
mental health had improved greatly.
[12]
Mr H explained that he has lucrative work as a pension specialist in Dubai and
receives various allowances, including for accommodation and transport, in addition to his
salary. After the children were not returned to Dubai he had moved to a smaller two-
bedroomed apartment which was comfortable and spacious. If the younger two girls
returned to Dubai they would all move again to a larger apartment so that the children
could have their own bedrooms. He was aware that his wife could not work in the UK and
was dependent on state benefits. He had transferred around £600-£700 per month to his
wife until January 2020 when the parties stopped speaking and the defender stopped
spending the money he was sending. The pursuer described a very happy and fulfilling life
in Dubai where all three of his children had thrived. They had undertaken numerous
activities together, played sports, visited funfairs, the beach and gone out for meals. He had
produced a number of photographs of the family in Dubai (number 6/11 of process). He
was concerned that the life they were leading in Glasgow was much more isolated and that
they had very limited extra-curricular or social activities. Prior to their departure from
Dubai he had been involved in supporting them with homework and was very keen to help
10
them pursue their education. The children had previously attended the international school
and they could return there, the pursuer having paid a deposit to register them for the
school year 2021-22. He described himself as having a very strong relationship with his two
younger daughters. He had required to re-instigate contact through court order. He had
complied with the court's direction not to discuss any matters relating to these proceedings
with the girls. Contact had continued to be difficult however. The defender had strictly
time-limited the calls and she was often in the room listening and guiding the children in the
conversation with their father and their older sister. There had been some difficulties after
Miss Donachie's report was made available and it had become apparent that the defender
had discussed matters with SW who he felt was under pressure from her mother.
[13]
The pursuer's position was that he could provide the children with security and
safety in future if they were returned to Dubai. He understood that his wife may wish to
stay in the UK but he thought it in the children's interest to have contact with both parents.
He would assist a return to Dubai in any way possible. He thought that both SW and OW
wanted to return to Dubai. He was concerned that if they could not do so he may be unable
to obtain a visa to visit the UK to see them.
[14]
Under cross-examination, the pursuer said that he thought his wife had been
influenced by her brother who had also fabricated an asylum claim, albeit in France. Mr H
was aware that many people come to this country and regard securing a UK passport as a
major privilege. When a chance arose for his wife to do the same as her brother she had
taken it. When they first arrived in London he had not realised that his wife's plan was to
stay here. He was concerned that the fabricated allegations might make him look like an
abuser when in fact he had never intended to try to subject his daughters to FGM. Mr Arbab
had reassured him at the time that nothing said would affect him or any future application
11
he might make to join the family here. Mr H maintained that he had tried to persuade his
wife to give up on the application and continue with life in Dubai. He had gone along to the
first meeting with Mr Arbab at Costa Coffee only because his wife insisted that she was
going ahead and he did not want her going around London alone. It was after the meeting
in the coffee shop that he had gone to Shepherd's Bush market to enquire about Mr Arbab's
reputation. The places he had gone were a handbag shop and a restaurant that he and his
wife had visited during the same trip. It was normal to start chatting to any Sudanese
person they came across. Mr H said he was aware that Sudanese people coming to the UK
tend to use either links with a particular ethnic group in Sudan or the risk of FGM as
possible grounds for asylum, with men tending to use the former and women the latter. The
Sudanese business people in Shepherd's Bush had confirmed that Ali Arbab was the best
person to use.
[15]
On being shown the translation of the WhatsApp messages between him and his
wife (Number 6/44 of process) the pursuer confirmed that the reference to the £720 was the
payment to Mr Arbab and the reference to "Ali" was to that gentleman. He agreed that the
messages did not state in terms that his wife was making a false asylum claim. He agreed
that as he was not present at the Home Office interview he could not state exactly what his
wife had said to officials but she had told him afterwards and she had sent him a copy of her
asylum registration form, which ultimately he had lodged as number 6/42 of process. He
disputed that his wife was telling the truth about being detained in Sudan in 2015 for
supporting the Movement of Justice and Equality and that his daughters would have to
undergo FGM. He disagreed also that there was a distinction between the contents of the
defender's application form and the content of 6/43 of process, the document written by
Mr Arbab. He agreed that Mr Arbab's document had not been submitted to the Home
12
Office. His wife had given him all of the documents relating to her asylum claim and that is
how he had been able to lodge them in these proceedings. He agreed that he had not
managed to prevent his wife making the asylum claim although he had tried to convince her
but she had repeatedly said that he should wait until the UK passports were issued and then
they could be together again. He had accompanied her to meet Mr Arbab and into the
Sudanese shops to make enquiries because in their culture she should not be going alone to
such places. As to why he had organised translation of Mr Arbab's document three years
after the event, Mr H confirmed that it was not until after his own claim for family reunion
failed and he had given his wife time to rethink her position that he started to wonder what
was going to happen. As he had retained the Arabic version of the document he had it
translated when he was considering raising these proceedings. The political activities aspect
of the defender's asylum claim had been inserted because Mr Arbab said that there required
to be justification for leaving both Sudan and Dubai. That part was made up to justify fear
of persecution in Sudan and the FGM to justify that if the pursuer was likely to put pressure
on the defender to make the girls undergo FGM that pressure could take place in Dubai.
When asked which members of his wider family he was referring to when he said that FGM
was not carried out in his wider family Mr H said that he was talking about his sisters and
he had explained in his affidavit that his mother had been subjected to FGM. Further,
neither his children nor his cousins had been subjected to that practice. On whether the
defender had denied being in any political organisation (see paragraph 5.4 of number 6/42 of
process), Mr H explained that it was the Darfurian movement that was asking for equality in
Sudan. This was something that he recalled the defender had memorised and been able to
talk about at her interview.
13
[16]
In relation to the cessation of contact with the two younger girls between October
and December 2020, Mr H confirmed that after the defender received the court papers he
began noticing that his youngest daughter did not reply to his calls or messages and SW said
that OW had not been given her phone. Contact had only resumed once the court ordered
that. The defender continued to try to limit the pursuer's contact with the children by
encouraging them to end the calls saying it was time for their shower or to eat. He disputed
that he was using contact to try to persuade the girls to return to Dubai. He thought it
normal that he would ask the girls about how they were getting on at school and the
weather in Scotland and in return they would ask him about things in Dubai. He would
engage them in conversation when they asked him about whether he had been buying
pastries from the shop near their home in Dubai and recollect other things they used to do
there. The pursuer agreed that in January 2020 he had sent messages to YW who had been
telling her mother that she wanted to return to Dubai and the pursuer was trying to help her
convince the defender to agree. This was before any court proceedings had commenced and
he was simply responding to his daughter's desire to have her choice. He told YW that her
mother did not listen to him or accept any of his opinions anymore and that he would
support her fulfilment of her wish. The pursuer disputed that he had not been represented
in the appeal against refusal of his own entry clearance for family reunion purposes. The
solicitor from the Ethnic Minorities Centre had said he could represent both husband and
wife as they were not in conflict. Under reference to paragraph [6] of the First-tier Tribunal
judgment (Number 6/8 of process) where it is stated that the pursuer's position in 2019 to
that tribunal was that he had not been in favour of FGM but that he "nervously blamed" his
wife for standing up to his own mother on the issue, the pursuer said that this had been a
careful wording because the defender had said he could not acknowledge that her claims
14
had been totally false. She had been worried about the Home Office taking her visa away.
As a couple they had gone back to Mr Arbab and he had suggested what they could say
about the FGM issue to allow the pursuer to apply for family reunion. The whole idea of the
defender standing up to the pursuer's mother was a fabrication. It was simply to think of
something that would allow the pursuer to succeed in his application for a reunion visa
without risking the defender's visa being revoked. On Mr Arbab's advice they had made
this story to fit with the family reunion application, for which the defender was the
pursuer's sponsor.
[17]
The pursuer was asked about the various photographs he had lodged in relation to
the trips to Georgia and the defender's claims in her affidavit that there had been an
altercation at Dubai airport after the second trip and that the pursuer had threatened that
the children were not going back to the UK and tried to book a flight to Khartoum. The
purser disputed the defender's account (which differed from that given on record). He
disagreed that the defender had resisted the idea of YW's return to Dubai and said that she
had only ever been concerned about her refugee status. He explained that YW had been
able to go to Sudan notwithstanding that she had refugee status from the UK because she is
a Sudanese citizen and he was able to have a passport issued there for her as a matter of
urgency. In fact it had been his wife who requested that they visit her family in Sudan and
the defender's mother had visited the pursuer's mother's house there during the time that
YW was present. The defender had made contact with YW when she was in Sudan. When
asked why he had stated that the defender could not work in the UK, Mr H confirmed that
he thought this was because she had two children under the age of 16 and was studying; he
was not suggesting that his wife was prohibited in law from working. His understanding
that the younger children were isolated in Glasgow referred to the pre Covid-19 period and
15
he accepted that social activities will have been restricted for some time because of the
pandemic. His conversations with SW suggest to him that she is not happy to be in Glasgow
and in Scotland. Mr H acknowledged that both girls had written letters asking him to come
and live with them in Glasgow (numbers 6/47 and 6/49 of process) but these had been
prepared for the purposes of his application for family reunion. The legal advice received
had been that the children's letters might put pressure on the Home Office.
[18]
The pursuer denied criticising the defender to the children in his video calls, but
accepted that he would often show them where he was while speaking to them whether in
the street, the marketplace or the swimming pool. The children had memories of these
places. He did not think that SW and OW would struggle if returned to Dubai. It was their
place of birth and had been their home for many years. They would have access to all social
activities and education. They had no particular emotional tie or connection with Glasgow
despite the length of time they have been there. Their life there was very limited in
comparison with what would be available to them in Dubai. Mr H considered that he could
take the same route as he had with YW should the younger girls be returned in that he could
take them to Sudan for the issue of passports. However, in re-examination he confirmed
that there were other routes. There was a Sudanese embassy in London that could issue a
passport which the girls could use to fly direct to Dubai.
[19]
The parties' oldest daughter, YW, gave evidence in the pursuer's case and adopted
her affidavit number 22 of process as part of her evidence. She attends a private school in
Dubai after which she hopes to attend a university there. She lives in an apartment with her
father the pursuer and described a good relationship with him. Although some of her
mother's relatives are also in Dubai she is now estranged from them. Her father's brother
visits from time to time. In her affidavit evidence YW explained the circumstances in which
16
she stopped living in Scotland. She did not like living with her mother and she was also
experiencing problems with her mental health. It was clearly a very unhappy time for her.
YW has been much happier since returning to Dubai to live with her father in January 2020.
She thought that her mother did not care that she was leaving and had asked for the opin ion
of her brothers (YW's uncles) whether she should let her daughter return. YW was firmly of
the view that if her sisters were returned to Dubai things would be much better both for
them and for her. Her understanding is that her sisters have no social interaction outside
the house. In Dubai they could go out with their father to the cinema or for dinner or to a
hair salon. She thought her sisters would easily make new friends in Dubai. YW stated that
she missed her sisters "so much" and was annoyed about the time she is able to speak to
them being limited. She would be very happy if her sisters returned to Dubai.
[20]
Under cross examination the witness was taken to the defender's affidavit number 27
of process and it was put to her, under reference to paragraphs 35 and 36 of that affidavit
that her mother wanted to maintain communication with her after she returned to Dubai but
that YW had stopped contact. YW disputed that it was she who had stopped talking to her
mother. She explained that the defender had blocked her number on WhatsApp and
blocked her phone number to avoid receiving calls from her daughter. On the allegation in
the defender's affidavit at paragraph 37 that YW had called the police on one occasion after
she returned to UAE because she said her father had hit her, YW said that there had been an
incident, but that it was not serious and that she did not tell her mother that her father had
hit her. Her recollection was that he had taken her phone an d that had caused an argument.
[21]
When challenged about paragraph 8 of her own affidavit in which YW referred to
there being mention of "things that might happen to me and my sisters if we were to go to
the Sudan" YW confirmed that she was referring there to FGM. She confirmed that she was
17
confident that her father's family would never subject them to FGM but that her mother's
side of the family might do so. She recalled one time asking her mother about it and the
defender had told her that the maternal side of the family could do this. Her father's family
were completely different and her father had assured her that his family would not do such
a thing. YW was asked about the fact that her father had taken her to the Sudan as part of
her return to Dubai notwithstanding that she was a refugee holding a travel document from
the UK that would not permit her to go there. She confirmed that they had gone there to
obtain a document that she required to return to Dubai. There was no difficulty with her
getting inside Sudan. She had stayed there for about a week and had visited relatives th ere
including her grandmother, her aunt and a friend.
[22]
The pursuer also called a Mr NN, a 50 year old Sudanese gentleman who has lived in
the United Arab Emirates since 1973. Mr NN is blind and gave evidence over WebEx with
his wife assisting the operation of that facility. He had sworn an affidavit number 24 of
process which he adopted as his evidence. It had been prepared using the services of an
interpreter and a software programme that allowed it to be read out to him. The affidavit
had then been translated into English. In essence Mr NN's evidence was that he was a close
friend of the pursuer to whom he speaks almost daily. They share cultural interests and
concerns related to the situation in the Sudan and have a common interest in the affairs o f
the Sudanese community in Dubai. Mr NN had assisted the pursuer with the organisation
of certain cultural activities while the pursuer held a position at the Sudanese Cultural Club
in Dubai. Mr NN knows the pursuer's three daughters to the extent that he has met them a
few times at the Cultural Club in Dubai and once at a book fair. He had also visited the
pursuer's home on some occasions and now follows news of the younger two girls through
the pursuer.
18
[23]
Mr NN's view was that from the outside the pursuer's family had seemed happy and
stable. The parties seemed very keen on the education of their daughters and the family
enjoyed an excellent standard of living. In particular, the pursuer's high level of
employment resulted in his daughters' tuition fees being met by his employer. The schools
the three girls attended in Dubai were of excellent quality. Mr NN clearly holds the pursuer
in very high regard and described their ideas as coinciding both on the political and cultural
levels. He thought that the pursuer now treats YW more as a friend than a daughter in that
he facilitated her fulfilling her desires. The pursuer had spoken to Mr NN about missing his
two young daughters. They had never had a debate about female circumcision. However,
Mr NN was aware through their general discussions that the pursuer was against the idea of
that practice. Mr NN had met the defender once or twice when she was in Dubai but did
not really know her.
[24]
Under cross examination Mr NN agreed that insofar as he had impressions of the
pursuer's family and his relationship with his daughters it was based primarily on what the
pursuer had told him. He described his relationship with his friend as a very open one
based on trust. He could not speak to the advantages and disadvantages of UAE as
compared with Scotland other than from what the pursuer had told him. In relation to the
nature of the pursuer's relationship with YW, Mr NN explained that the common picture of
the father/daughter relationship in Sudanese society was where the father gives orders to his
children. The pursuer's relationship with YW was not like that. He respects YW's will and
desires and he has an open dialogue with her about issues in general. In relation to FGM,
Mr NN said that he knew from his discussions with the pursuer over a period of time that
this is not something he would consider. He and the pursuer have not required to discuss
the topic specifically because they are both promoters of women's rights and freedoms and
19
it is out of the question that they would even have to discuss FGM. Mr NN had some
knowledge of Sudanese people who seek asylum in the UK. He thought that most of those
who did so wished to secure travel documents and citizenship. Sudan had suffered
economic hardship and dictatorship over the last twenty years and so many of its people
want safety and security outside Sudan. Though UAE does not grant citizenship to any
expats and so to remain there residency constantly has to be renewed. It was for that reason
that many Sudanese people living in Dubai came to the west to get the security and stability
of citizenship that is not available in UAE. Some go to Australia and others to the UK. As
residency in UAE tends to be linked to employment, many have suffered the threat of
residency not being renewed if they had lost their job. Mr NN accepted that of course from
time to time there would be genuine asylum seekers in the UK as the dictatorship in the
Sudan had caused oppression to some, at least prior to 2019, because of their political views.
[25]
Mrs SS, the pursuer's mother gave evidence from the Sudan using video conference
facilities and simultaneous interpretation. She had sworn in affidavit number 25 of process
which she adopted other than to confirm she was born in 1939 and not 1945 as stated there.
She had been a school teacher and described her relationship with the pursuer, her eldest
son, as a strong one. She speaks with her three granddaughters from time to time and
considered the pursuer and his family to have been leading a very happy life in Dubai
where she had visited them many times. She regarded the defender as "not a perfect
mother" but thought that the three granddaughters loved both parents very much. She was
clearly very unhappy with the defender's decision to seek asylum for herself and her
daughters in the UK and thought that her son had suffered dramatically from being away
from his daughters. Her affidavit evidence stated that she had never spoken to the pursuer
20
about circumcising his daughters. She did not accept the idea of FGM and girls in her
family were not subjected to it.
[26]
Under cross examination the witness confirmed that she had a daughter as well as
her son the pursuer and there was some confusion about whether or not she had more than
one daughter because the pursuer had referred to sisters in the plural until the witness
explained that there were two sisters. It was put to Mrs SS that female circumcision has
been commonplace in the Sudan for many years to which Mrs SS replied that she was not
sure although she was aware it had been practiced a long time ago in that country. She said
that the practice is not taken on board nowadays and they do not subject their children to it.
People who had become educated and enlightened had stopped carrying out the practice of
FGM, her own daughters and the pursuer's daughters had not been circumcised. When it
was put to the witness that an immigration judge in this country had recorded the pursuer
as having said that Mrs W had required to stand up to her (SS) on the issue of FGM, the
witness was clear that this incident had not happened at all. The defender had not spoken
with her on that issue and she was not aware of any such conversation taking place. She
stated emphatically "I swear by god this conversation has never taken place at all" when
asked again about whether she had ever spoken about FGM with the defender in relation to
the defender's children.
[27]
The defender gave evidence and almost immediately asked to proceed with
simultaneous translation notwithstanding that her affidavit number 27 of process had been
prepared and sworn in English. She stated that she can read in English and had been able to
read a draft of the affidavit and make any necessary changes. She adopted the terms of the
affidavit as part of her evidence. She confirmed that she is currently a student living in
Glasgow and is 44 years of age. The defender's affidavit evidence sets out in detail her case
21
that although initially the parties had a good life in the Sudan they had come under pressure
from their families about subjecting their daughters to FGM. The trip to London in July 2017
had been intended as a 3 week holiday, but during their time in the UK the pursuer
completely changed his mind about FGM and said he would do it to the children. The
defender's position is that the pursuer received a phone call from his mother during the
holiday and Mrs SS was putting pressure on them both to subject their daughters to FGM.
[28]
In her affidavit the defender makes no reference to Mr Ali Arbab. In oral evidence
her counsel asked her when she had last spoken with Mr Ali Arbab and she stated that it
was around 2018. The defender's affidavit goes into some detail about the family trips to
Georgia in April and December 2019, particularly the second trip where she stated there
were aggressive incidents. In relation to YW's return to Dubai in January 2020 the defender
confirmed her oldest daughter's unhappiness in Scotland and her desire to return to Dubai.
When asked in oral evidence whether she knew that YW would be going to Dubai with Mr
H via Sudan the defender disputed this and said that her daughter told her only that they
had visited Addis Ababa. She stated that she never knew that they had been in the Sudan.
The defender's affidavit evidence confirmed her own experience of FGM when she was
6 years old which she describes was indescribably painful.
[29]
Under cross examination the defender stated that she could not say "100%" that the
pursuer was a loving and caring father to the three girls. Then she agreed that until 2017 the
three children had a loving relationship with him because he was their father. She accepted
that they had a normal family life in Dubai and that the children went to good schools with
many friends. She disputed that they enjoyed extra-curricular activities there. The parties
and the children had family in the UAE that they visited from time to time. She agreed that
her children would have expected to go home to Dubai after the holiday to the UK in
22
July 2017 as it was their country of birth and residence. They had left the majority of their
possessions at home in Dubai. The girls had not said goodbye to their friends or teachers as
they understood they were simply going on holiday.
[30]
The defender agreed that she and her husband had met Mr Ali Arbab but she denied
that it was because their friends had said that Mr Arbab could prepare a false asylum story.
She said that it was her husband who spoke with Mr Arbab and that she spoke only to his
wife and in any event only in general terms. She claimed that her husband had a personal
relationship with Mr Arbab and that she did not sit with him in the coffee shop in
Shepherd's Bush. She denied also going to shops run by Sudanese people in Sh epherd's
Bush where her husband asked about asylum claims although he did tell her that he had
gone there. Mrs W disputed that Mr Arbab had given a price of £1500 for his services.
When the texts at 6/44 of process were put to her with reference to sums of money and
Mr Arbab the defender disputed that this was a conversation between her and her husband
at all. When asked whether she had wanted her husband to come to the UK and join her at a
later date when she realised that he would not be part of the in itial asylum claim the
defender seemed unable to answer. Then she stated again that Mr Arbab did not do
anything for her, she said he did not prepare anything for her and that most of what her
husband said had not happened. After she and the children were settled in the UK she did
want to apply for her husband to join them there. This was in 2018. She stated that she
believed that the father's role was very important in the children's life in general terms and
that was why she supported the family reunion. On being shown the Arabic version of
what her husband had said was the document given to her by Mr Arbab (number 6/43 of
process) the defender stated at first that this document belonged to her and was not linked
to Mr Arbab. Then she said that Mr Arbab had not given her any documents ever. She
23
agreed however that she sent a copy of the document in question to her husband but stated
that she never told him it was from Mr Arbab.
[31]
The defender disputed all of the details about the asylum claim that the pursuer had
given in his account. She said that she had taken a taxi with the girls to the Home Office
building at which her interview was to be conducted and that she had no conversations with
Mr Arbab. She agreed that her husband had always told her he was against FGM but
maintained that then he encouraged it. In 2013 she had visited the Sudan on her own and
with the girls in 2015. She accepted that YW who was 12 years old in 2015 had not been
subjected to FGM when she was in the Sudan but she stated that she was pressurised by her
husband's family to carry it out. When pressed on the issue of whether her husband was
opposed to FGM the defender stated that although he stated he was against it he had not
taken steps to protect the girls and that his actions were therefore inconsistent with what he
said. She insisted that the pursuer did speak with his mother on the phone while they were
in London and that she and the pursuer were lying when they denied that. The defender
maintained also that she had been arrested in the Sudan in 2015 although she had not been
politically active. She was not a member of any movement or organisation but liked the
goals and views of the Movement for Justice and Equality. She said the circumstances of her
arrest were that she was accused of supporting that movement. Her father had been from a
tribe which originated from Darfur and she disputed that her surname was in circulation
only in northern Sudan. Returning to the document number 6/43 of process the defender
then said that the handwriting on that document was hers and not Mr Arbab's.
[32]
The defender was pressed on how she could have continued her relationship with
her husband if what she told the immigration authorities about him planning to force the
girls through FGM was true. Her position was that she and her husband had reconciled or
24
at least started speaking to each other after she settled in the UK. She felt safer here in the
UK and she always wanted her children to have their father. Then she said that she might
have made a mistake recommencing her relationship with her husband but said her main
concern was the safety of her girls. She disputed that she and her husband had never in fact
separated saying that they lost contact with each other in late 2017. She agreed that she and
the girls had gone on holiday to Georgia with her husband as soon as his passport was
released by the embassy in April 2019. The first trip in April 2019 to Georgia had been
enjoyable and the photographs of that trip (number 6/13 of process) showed a happy family
unit. The second trip was the one where the defender stated that when they returned from
Tbilisi to Dubai in order to transfer to Glasgow she discovered that her husband had booked
a flight to Khartoum. It was an official at the check-in counter that told her that. The
defender told the official to look at the travel documents illustrating that she and the girls
could go anywhere in the world except Sudan. The defender then stated that the pursuer
told the official that this was his family and he could take them with him wherever he went.
An argument ensued and the defender said she asked for the police to be called. The
pursuer told the police that he was going to Dubai but that he had booked for the defender
and the girls to go to Khartoum to see the defender's family. Mrs W agreed however that
there had been torrential rain at the time of the proposed return trip and that flights had
been cancelled and about two days were spent at the airport. She agreed that her husband
had paid for her expenses at the hotel where she and the girls stayed. She stated that the
incident about the flight booked for Khartoum was a prior flight to the one that was
cancelled due to weather issues. She insisted that there had been police involvement at the
airport.
25
[33]
Initially the defender stated that only the first trip to Georgia had been a happy time
and said that no photographs had been taken on the second trip, which neither she nor the
children had enjoyed. When shown photographs in number 6/14 of process of the family in
Georgia with a Christmas tree in the background, Mrs W said as they went there in
December it would be normal to have a Christmas tree. Then she stated that the photograph
had been taken during the first trip and that the presence of a Christmas tree was not proof
that it had been Christmas. The defender disputed that YW's possible return to Dubai had
been discussed and agreed in Georgia as being in her eldest child's best interests. YW
wanted to go to Dubai with her father but the defender insisted that she return to Glasgow,
which she did. Subsequently the defender sought advice from YW's school and from the
social work department and was told that as she was 16 years old there was nothing that
could be done, so the defender respected her view and let her go. The defender assisted
with the arrangements. She disputed that YW is doing well at school in Dubai, but agreed
she had no contact with her or with the school she attends. The witness accepted having
blocked YW as a contact on her phone.
[34]
Mrs W agreed that YW had been close to her sisters and that she would like them to
live together again, but did not see that happening as YW would not return to Glasgow. She
considered that her two younger daughters would be at risk (of being subjected to FGM) if
they visited their sister in Dubai. When it was suggested that the children would be better
provided for in material terms in Dubai she insisted th at they were safe and financially
content in Glasgow. Mrs W denied that her husband had sent funds for her and the children
until she stopped speaking to him in January 2020 and questioned the value of the perfume
and laptop (MacBook) he had sent the girls saying that they needed food and clothing
instead. She denied that he sent food parcels, later stating "sending a box of crisps every
26
couple of months, that's not food". The defender agreed that the girls had visited fun-fairs
and the beach at weekends in Dubai with their parents and that her husband had been an
involved father "like any other father" but "nothing exceptional". She disputed that the
children's lives in Glasgow were isolated in comparison to their time in Dubai. On the
proposal that the girls return to the American International School in Dubai the defender
said "..they have school here. I don't see the logic for them to go back there".
[35]
On the cessation of video and telephone contact between October and
December 2020, the defender said she had taken action because her husband had been
telling the children things and being disrespectful of her to them. He had accused her of
stealing a phone belonging to one of the girls, which had been lost. It had not been because
he had raised these proceedings. The subsequent court order had helped because now he
calls at specific times and not just when it suits him. Mrs W said she had no difficulty with
such contact but felt the pursuer had used it to "brainwash" the children, telling them how
much better life in Dubai was than in Glasgow. It was unacceptable for him to be showing
the girls photographs of him swimming in pools and going to nice areas during lockdown
when she and the girls could not leave the house. She had understood that the initial court
order limited contact to 30 minutes including any time with YW and said that her oldest
daughter had also shown photographs to her sisters of her enjoying nice places in Dubai.
Mrs W denied being present when the girls are speaking with their father, she just checks at
the beginning that her husband is not talking about the case and then she leaves the room.
[36]
When asked whether she had seen Ms Donachie's report recording the children's
views, the defender said that she had asked SW to translate it for her as her daughter's
English was very good. She confirmed that SW reads emails and letters to her that she does
not understand and said that when she had been told not to show the report to anyone she
27
did not think that included her daughters. On being challenged about how she could have
provided an Affidavit in English if she required emails to be translated, the defender stated
that simple language had been used by the solicitor. When she had read her husband's
affidavit she had looked up any words or phrases she did not understand on Google. She
said that Ms Donachie's report "was something very important to me, that's why I needed
help." Mrs W was adamant that she did not want to return to Dubai or see her husband
again. When pressed on what she would do if the court ordered the children's return she
said that it was impossible for her to think about being without her children but that she
would have an issue obtaining a residency visa now for UAE. She found it difficult to
answer in advance of the court's decision. She did not accept her husband's evidence that
he would pay for her residence visa in UAE even if they were separated. On the issue of
direct contact with their father if the younger girls remain in Scotland, the defender stated "I
don't mind him seeing the children, but I will not be there so I would like them to have high
protection. I need to be sure he is not going to take them for FGM procedure or talk badly of
me."
The applicable law
[37]
Both parties to this action hold full parental responsibilities and parental rights in
respect of SW and OW. The relevant parental responsibilities are outlined in section 1 of the
Children (Scotland) Act 1995 ("the 1995 Act") and the corresponding parental rights are
listed in section 2 of that legislation. Section 6 of the 1995 Act provides that both the child (if
mature enough to express a view) and the other parent must be consulted about any major
decision one parent with parental responsibilities and rights intends to take about the child.
A change of the country of residence would clearly fall within this category. Section 11(1) of
28
the 1995 Act provides that the court, in circumstances such as those that arise in this case,
may make orders relating to those parental responsibilities and rights. The orders sought by
the pursuer in this case are in terms of section 11(2)(c) and (e) which provide as follows:
"...(c) an order regulating the arrangements as to
(i)
with whom or
(ii)
if with different persons alternately or periodically, with whom and
during what periods,
a child under the age of 16 years is to live (any such order being known as a
"residence order");
...
(e)
an order regulating any specific question which has arisen, or may arise, in
connection with any of the matters mentioned in paragraphs (a) to (d) of
subsection (1) of this section (any such order being known as a "specific issue
order");"
For her part, the defender also seeks a Residence Order in terms of section 11(2)(c) of the
1995 Act.
[38]
The test to be applied by the court where any order under section 11 is sought can be
found in section 11(7) which provides:
"...in considering whether or not to make an order under subsection (1) above and
what order to make, the court
(a)
shall regard the welfare of the child concerned as its paramount consideration
and shall not make any such order unless it considers that it would be better for the
child that the order be made than that none should be made at all;
(b)
taking account of the child's age and maturity, shall so far as practicable
(i)
give him an opportunity to indicate whether he wishes to express his
views;
(ii)
if he does so wish, give him an opportunity to express them; and
(iii)
have regard to such views as he may express."
The parties were agreed that all aspects of the test are relevant in this case and that the views
of the children as reported to the Child Welfare Reporter should be considered. In applying
the test in section 11(7)(a) the court must have regard to certain listed matters. These
include;
29
"(7B)
(a)
The need to protect the child from
(i)
any abuse; or
(ii)
the risk of any abuse,
which affects, or might affect, the child;
(b)
the effect of such abuse, or the risk of such abuse, might have on the child ;
(c)
the ability of a person
(i)
who has carried out abuse which affects or might affect the child; or
(ii)
who might carry out such abuse,
to care for, or otherwise meet the needs of, the child; and
(d)
the effect any abuse, or the risk of any abuse, might have on the carrying
out of responsibilities in connection with the welfare of the child by a person
who has (or, by virtue of an order under subsection (1), would have) those
responsibilities.
(7C)
In subsection (7B) above--
`abuse' includes--
(a)
violence, harassment, threatening conduct and any other conduct
giving rise, or likely to give rise, to physical or mental injury, fear, alarm
or distress;
(b)
abuse of a person other than the child; and
(c)
domestic abuse;
`conduct' includes--
(a)
speech; and
(b)
presence in a specified place or area.
(7D) Where--
(a)
the court is considering making an order under subsection (1)
above; and
(b)
in pursuance of the order two or more relevant persons would have
to co-operate with one another as respects matters affecting the child,
the court shall consider whether it would be appropriate to make the order."
[39]
This case is characterised as a relocation case because, regardless of the
circumstances in which the children became resident here, they have resided in Scotland for
four years and the pursuer seeks to alter that status quo and relocate them back to Dubai.
There was no dispute between counsel in this case as to the applicable law or the way in
30
which the courts in this jurisdiction have settled the approach to relocation cases. In M v M
2012 SLT 428 at paragraph 9, Lord Emslie, giving the decision of the Inner House confirmed
that in relocation cases "the welfare and best interests of the child or children concerned are
paramount, and fall to be judged without any preconceived leaning in favour of the rights
and interests of others". The correct approach to applications of this sort was also
summarised by Lady Smith in the case of Donaldson v Donaldson 2014 Fam LR 126 at
paragraph 27 as follows:
"Since the decision of this court in the case of M v M, it has been clear that, on an
issue of relocation, it is no part of our law that a judge requires to regard any
particular factor as having greater weight than any other. It would, for instance, be
wrong to proceed on the basis that there is a rule that the most crucial assessment
required is as to the effect that a refusal of the relocation application will have on the
applicant. This is often conveniently described as a "presumption free" approach; it
accords with the court's duty to regard the welfare of the child as the paramount
consideration. That is not to say that, in an individual case, there may not be features
which are of particular importance when considering the welfare of the individual
child concerned. The availability in each jurisdiction of some particular medical
treatment or educational provision that the child requires would be an example.
Much will depend on the facts of each case."
Much will depend on the particular circumstances of the case and the advantages and
disadvantages for the child of the proposed move with the wishes and interests of each
parent receiving no greater weight than they deserve in the circumstances.
[40]
There is an evidential burden of proof in a relocation matter on the parent seeking to
relocate with the child, or as in the present case, have the child or children returned to him
to live in another jurisdiction. That party must furnish the court with material potentially
capable of justifying the making of the orders sought (S v S 2012 Fam LR 32 at paragraph 10)
and show (1) that relocation would in fact be in the best interest of the child concerned; and
(2) that from the child's perspective it would be better to allow relocation than to make no
order M v M cited above. It is neither instructive nor appropriate to try to formulate any
31
list of applicable factors as relocation cases are fact sensitive and scrutiny of the particular
circumstances of the dispute and the child is what matters Donaldson v Donaldson cited
above and GL v JL 2017 Fam LR 54. Finally, it is important in any case involving children
that the decision maker must not be distracted from the primary focus of the effect of any
order upon the welfare of the child concerned; a nexus between the central issue and the
findings of fact made by the court is to be demonstrated NJDB v G [2012] UKSC 21 at
paragraph 31.
[41]
In Immigration cases, asylum claims by those seeking protection from a risk of being
subjected to FGM are well recognised. The applicable country guidance for Sudan FM
paragraphs 136-137);
"Risk of FGM in Sudan
136. The large-scale statistical evidence regarding FGM in Sudan, cited by UNICEF
and others, whilst not particularly up-to-date, remains generally valid. From this
and many of the other materials to which we have referred, it is plain that FGM in
Sudan as a whole, and the north in particular, is widely practised. That includes
both type I (infibulation) and type III (or `Sunna' form), both of which plainly
constitute serious harm and persecution. That is the backdrop against which any
particular claim to international protection must be analysed. Most girls and young
women in Sudan are, today, still likely to undergo one or other of these forms of
FGM.
137.
Nevertheless, it is also apparent from the evidence as a whole that not every
uncircumcised girl or young woman of what (in Sudanese terms) might be described
as marriageable age will as such be at real risk of FGM on return to Sudan."
The guidance also notes (at paragraph 121) that legislation prohibiting FGM has been a
factor in the practice becoming less prevalent.
[42]
There is also an argument in the present case about the relationship, if any, between
the issues for determination and the Secretary of State's decision to grant the defender's
asylum claim for her and the children. In G v G [2021] 2 WLR 705, where the conflict was
32
between the operation of the Hague Convention on International Child Abduction and an
ongoing asylum claim, Lord Stephens expressed the view that it would ordinarily be
sufficient if the Secretary of State be requested to intervene so that decisions in the Hague
Convention case did not trespass on her responsibilities in the asylum process. In that case
the asylum claim was live and the issue was whether it should take precedence over
summary proceedings for return of a child under the 1980 Hague Convention. The present
case is rather different because the claim has been determined by the Secretary of State to the
extent of granting leave to remain for five years to December 2022 and is in that sense not an
ongoing claim. To address any perceived conflict, however, intimation was duly ordered to
be served on the Advocated General for Scotland in advance of proof lest he would wish to
participate and his office confirmed that he did not intend to do so, but would like sight of
the court's final interlocutor.
[43]
The children are persons to whom the Geneva Convention 1951 Relating to the
Status of Refugees ("the 1951 Convention") applies. The determination that a person is a
refugee is declaratory in nature ST (Eritrea) v SSHD [2012] 2 A.C.135 at 140. It is well
established that the court cannot substitute its own view upon the substantive merits of a
decision that is within the exclusive province of the Secretary of State for the Home
Department in the performance of her constitutional function SAA (Iraq) v SSHD
[2017] CSOH 59 at para 15 ; ABC (Afghanistan) v SSHD 2013 [CSOH] 32 ; RA (Pakistan) v SSHD 2011
S.L.T.970. An issue arises as to whether the decision of the Secretary of State would be
undermined by a decision of this court.
[44]
The question of whether an order for return to UAE could be implemented in this
[2018] Fam 1, Hayden J was asked by the Court of Appeal to consider the competency of ordering
33
the return to Pakistan of a child with refugee status here in the UK, Pakistan being the
country from which refuge had been sought. Hayden J, having summarised the relevant
law, including the 1951 Convention, answered that question in the following way ( at
para 44):-
"Accordingly, it seems clear that the grant of refugee status to a child by the
Secretary of State is an absolute bar to any order by the Family Court seeking to
effect the return of a child to an alternative jurisdiction. Ms Fottrell QC, on behalf
of F, has been reluctant to yield to this unambivalent statement of principle, at least
expressed in such stark terms. She contends that the options for the child within the
family court are not neutralised by the supremacy of the Secretary of State's
authority. By this she means that there are a range of alternatives which might
encourage or indeed require the Secretary of State to reconsider her decision in the
light of findings made in the Family Court on the basis of evidence to which she has
not had access. This however, whilst a valid point, is not the same one.
Determination of refugee status itself and therefore its consequences is the Secretary
of State's sole responsibility."
It is not clear whether Hayden J intended to express the view that the child could not be
ordered to go to a third country, as opposed to that from which refuge was sought, although
a reasonable interpretation is that the grant of refugee status confers complete protection
against forced removal from the UK. The definition of refugee in Article 1A of the
Convention includes those with a well-founded fear of persecution who are outside the
country of their nationality or who do not have a nationality and are outside the country of
their habitual residence. The right not to be "refouled", enunciated in Article 33 of the
Convention, protects a refugee in a signatory country from being returned to a territory
where a relevant threat is present. I discuss below whether that has implications for my
decision in this case.
34
Discussion
[45]
I turn first to address the credibility and reliability of the parties to the action. So far
as the pursuer is concerned, on the matters about which he gave evidence to this court,
including the events of 2017 when the parties were in London, I found him to be generally
credible and reliable. His affidavit and oral evidence was clear and consistent and he came
across as anxious to assist the court. However, as detailed below, I have found that he was
prepared to support his wife's asylum claim in 2017 knowing it to be based on false
statements and that he colluded with her subsequently in concocting a story that they both
thought would persuade the authorities to allow him to join her here in the UK. He was
prepared to give a false account in support of his own subsequent claim. Accordingly, I take
into account that he has lied to state authorities himself in the past, but accept that he has in
these proceedings given a broadly truthful account.
[46]
As between Mr H and his wife, where their accounts differed I have accepted his
account. The defender was an unimpressive witness on the issue of the circumstances of her
coming to live in the UK. I had much less difficulty accepting her evidence in relation to
matters of child welfare. A number of issues have resulted in my rejecting the more
contentious parts of her evidence. First, as she had instructed her solicitors and had her
Affidavit prepared and sworn exclusively in English, notwithstanding that it is her second
language, her legal team proceeded on the basis that she was competent in English. Her
insistence on simultaneous translation through the interpreter for the majority of her oral
evidence appeared to me to be a convenient way of extending the time she had to answer
questions and I have concluded that she used the alleged language barrier to achieve that.
This was best illustrated when, shortly after 12 noon on day 3 of the evidence, she was being
pressed on her allegation that her husband had booked her and the children on a flight to
35
Sudan without her knowledge after the second Georgia trip. She gave a long and quite
fluent narrative in English of what she said had occurred at the airport before reverting
again to insisting on simultaneous interpretation. Secondly, she contradicted herself or
otherwise gave answers clearly unanticipated by her own advisers on several matters
during her evidence. Some examples include her evidence about (i) having met Mr Arbab
in 2017 and spoken with him in 2018, coupled with her denial of his involvement in her
asylum claim without explanation as to the purpose of their meeting, (ii) the bundle of
WhatsApp messages (number 6/44 of process) which she denied were between her and her
husband when he had spoken to them in eviden ce without contradiction as to their
provenance, (iii) the document number 6/43 of process that she accepted sending to her
husband but denied had been written by Mr Arbab when her husband had stated without
challenge that it was the document drafted by Mr Arbab with the false asylum claim story
and (iv) whether there were photographs of the second Georgia trip when those showing a
Christmas tree in the background were put to her. The defender's counsel admitted
candidly in submissions that his client's evidence that she was the author of no 6/43 of
process "came from nowhere".
[47]
I considered Mr NN to be a credible and reliable witness. His evidence was limited
in scope and he made clear that much of what he understood had been gleaned from
conversations with the pursuer. YW was also credible and reliable and gave some useful
evidence about the family dynamics and the allegations about FGM. There were some
difficulties with the evidence of the pursuer's mother, Mrs SS. She is 82 years old and gave
her oral evidence from Sudan and through an interpreter. At times she appeared not to
understand the question but I had the impression that she could not hear the questions very
well and that speaking to a camera was quite alien to her. There were connectivity issues
36
that delayed her evidence. As a precaution and because counsel for the defender raised the
matter, the witness's son in law was asked to leave the room in which Mrs SS was giving
evidence lest he be tempted to assist her with the answers. However, the witness's evidence
was if anything more fluent after that departure and I was not concerned that there had been
any attempt to coach the witness or otherwise manipulate the procedure. On the single
issue about which she gave important evidence and was cross examined (whether she had
spoken with the defender in the Summer of 2017 about subjecting the parties' children to
FGM) she gave convincing evidence which I accept as credible and reliable.
[48]
The undisputed facts of this case alone are revealing on the disputed issue of why
the children no longer live with their father. The family lived a relatively affluent lifestyle in
Dubai, where all three girls had been born. The children were being privately educated and
pursued many enjoyable activities at the weekends. Even on her own account, the defender
acknowledged that her husband had been quite an involved father. When they all travelled
to the UK in the summer of 2017 it was for a planned family holiday. After the defender`s
successful asylum claim she remained in very regular contact with her husband and then
supported his claim to join her and the children in the UK. After that was unsuccessful, she
holidayed with her husband as soon as his passport was returned to him, first in the Spring
of 2019 and subsequently in December 2019. For reasons that were not explained, both trips
were to Georgia, but the defender and the children were able to travel anywhere other than
to Sudan. YW's voluntary return to Dubai is also instructive. There was no extraneous
evidence supporting any complaint by the defender in January 2020 that her 16 year old
daughter was at risk on such a return. There was ample evidence that YW had been
extremely troubled while in Scotland and that she is settled and content in Dubai. There
was also evidence of YW regarding it as unremarkable that she spent a week in Sudan
37
visiting relatives while securing the paperwork for her return to Dubai. I conclude that the
undisputed facts are more consistent with the pursuer's account of a functioning marriage in
the context of which attempts were made to acquire UK residence and citizenship than the
defender's account of events taking place in July 2017 that led to her being fearful for herself
and her girls.
[49]
Turning to the disputed aspects of the claim for asylum itself, it is noteworthy that
the defender did not suggest in her evidence that she was fearful that her daughters would
be subjected to FGM at any time prior to the London trip. She claimed (paragraphs 12-13 of
her affidavit) that it was towards the end of that holiday that her husband changed his view
on the practice, having been against it previously. She stated that a phone call from his
mother put pressure on him to do so. However, what was put to Mrs SS in cross-
examination was not that she exerted pressure on her son in 2017 but the finding in 2018 of
the Immigration Judge that the pursuer had said that his wife had had to "stand up to his
mother" on the issue of FGM at that time. Mrs SS disputed that she had any conversation
with her daughter in law about that issue in 2017. The pursuer said that the whole issu e of
"standing up to" his mother had been concocted in 2018 as part of the family reunion claim
because the parties understood the glaring inconsistency between the primary basis for the
defender's initial asylum claim and her sponsorship of her husband's claim to come to the
UK and reunite with his family. Further, the aspect of the defender's claim that related to
her personally appeared to have no substance in her evidence to this court. She stated that
she was not politically active but that inexplicably she had been arrested in Sudan for
supporting a political movement and had then breached bail conditions. It was all quite
vague and not spoken about in evidence in the kind of detail one would expect if an entirely
innocent politically inactive woman had suddenly been arrested in her home country and
38
was asked to give an account of it. Whatever her evidence was to the immigration
authorities, the defender was not clear about this aspect in these proceedings. In any event,
it was not clear how such events would affect her life in Dubai if they had occurred.
[50]
I have concluded that, having now heard the conflicting accounts of what took place,
only the pursuer's account of the asylum claim issue is consistent and makes sense. He was
able to give a detailed account of Mr Arbab's involvement and the story that was created
about the defender's alleged arrest in Sudan in 2015 and her fears of FGM being visited
upon her daughters. I was not impressed by the defender's denials that documents
consistent with her husband's account were not in fact what they purported to be, when
such a claim had not been made or even suggested at any stage prior to her evidence. The
numerous messages between the parties at the time events were occurring, lodged by the
pursuer and spoken to in his evidence, support his account. For these reasons, I have
accepted the version of events given by the pursuer as broadly accurate. The defender
wanted to secure UK citizenship for herself and her children and so claimed asylum. She
was assisted in achieving that ambition by the pursuer, who subsequently sought to take
advantage of his wife's successful claim and join her here in the UK. It is significant that in
rejecting the pursuer's application for a Family Reunion Visa in 2019, the First-tier Tribunal
judge, in giving reasons said of the defender and the children;
"They have been in this country since 6th July 2017.... They have spent most of their
life in the UAE. I cannot see why the Sponsor and the children cannot return to the
UAE and if there is an opportunity for them to continue family life together in that
country and where there is no apparent risk to their safety and well being, then it has
to be in the children's best interests to do so. They would be reunited with their
father which is what they want." (number 6/8, page 6, of process at para 17).
It is clear from the documents lodged about the Family Reunion Visa application that the
defender retracted her claim that the girls were in danger from the change in attitude by the
39
pursuer towards FGM that she had earlier alleged as soon as there was an opportunity for
him to join her in the UK. The defender was unable to explain satisfactorily why her earlier
fear had dissipated.
[51]
It was clear from the pursuer's account that he would never have disclosed how the
claims came to be made in 2017 but for the breakdown of the parties' relationship after the
second Georgia trip. While I reject as implausible the defender's evidence that her husband
had booked her on a flight to Sudan, I accept that by December 2019/January 2020 there
were tensions between the parties because of the defender's refusal to contemplate a return
to Dubai as an alternative to her husband joining her in the UK. The relationship broke
down completely following YW's return to Dubai and to her father. I formed the impression
that the defender considers YW as having made a choice that may have threatened her own
position here in the UK and was anxious to avoid her younger daughters making the same
decision.
[52]
As indicated above, as a matter of law this court cannot substitute its decision for
that of the Secretary of State. What can be done in a private law dispute, however, is to hear
evidence relevant to an aspect of the case that may differ from the evidence heard by the
Secretary of State when reaching her decision. This court is required to treat the welfare of
the children concerned as the paramount consideration. Evidence was led without objection
about the circumstances in which the children came to live here and the basis of the
defender's claim for asylum in 2017. That is relevant evidence upon which I have required
to make findings. The Secretary of State's decision in 2017 was made on the basis of material
and evidence submitted at that time and I acknowledge the validity of the decision in that
context. The challenge is not to the decision itself, which clearly remains extant.
40
[53]
The conclusion I have reached about the circumstances in which the defender made
an asylum claim for her and the parties' children is based on the undisputed facts, coupled
with my assessment of the credibility and reliability of those who appeared before me and
having considered the relevant productions spoken to in evidence. My assessment is
necessarily different from that conducted by the Home Office in 2017. Quite apart from
having the parties' contradictory accounts, I have considered subsequent events as the time
at which any perceived risk to the children must be ascertained for these proceedings is the
current date. In my opinion, neither SW nor OW is at risk of being subjected to FGM by
spending time with or living with their father. FGM is a brutal practice and there was some
evidence that the defender's family are, in contrast with the pursuer's relatives, not quite so
against it. That said, YW is now 18 years old, has spent time with her mother's extended
family and has never been exposed to such a risk. Neither SW nor OW was at risk of being
subjected to FGM when they lived in Dubai and visited Sudan. However, significant as it is,
my conclusion on the alleged risk of FGM is only one aspect of the evidence that is relevant
to a determination of what is now in the children's best interests. It does not follow that,
because I have reached the view that the defender, with some assistance from the pursuer,
was not honest with the authorities when making an asylum claim, the children should be
returned to Dubai. I require to consider the evidence on their current circumstances, their
attachment to each parent and the views they have expressed, together with the
consequences of a change in their care arrangements before making a decision based on the
totality of the evidence. Apportioning blame, as between the parties, for the circumstances
in which the defender and the children came to reside in this country does not amount to the
necessary child focused analysis. It is a relevant factor that I have concluded on the
evidence before me that the defender and the children never required to seek refuge in the
41
UK, but that fact cannot determine what is best for them in 2021, four years after those
events.
[54]
I am entirely satisfied that prior to July 2017 SW and OW enjoyed a close family life
with their parents and elder sister, that they performed well at school and that they had no
inkling when they came to the UK on holiday that their lives were about to change
dramatically. However, over four years have elapsed since then and their mother has cared
for them effectively singlehandedly throughout. They live in reduced financial
circumstances and they attend a local school. The written material from the schools they
attend (numbers 7/2 and 7/3 of process) confirms, however, that they perform well and are
settled in their current environment. The guidance teacher at SW's school confirms she is a
polite, well-behaved pupil. She is well presented and has a close friendship group. SW has
completed the third year of secondary school and is entering the fourth senior year. OW's
class teacher describes her as "..an absolute pleasure to teach" and she scores in the
"excellent" category for behaviour, attitude and attendance. They are being educated in
English but retain their first language, Arabic, which is spoken at home. There was no
evidence to justify a conclusion that the education they receive here will deprive them of any
opportunities in future or that it is of lesser quality than that available in Dubai. Of course,
there is evidence that the girls could return to the International school in Dubai. I can accept
that the education provision there is also of a high standard and reports from that school
(numbers 6/18 and 6/19 of process) confirm the progress each child was making. I conclude
that there is suitable educational provision for the girls both in Scotland and in Dubai. The
defender's evidence was that their current accommodation is suitable and they have
sufficient in terms of material provision. I accept both that living a more modest lifestyle is
of itself not adverse to the interest of these children and that their current accommodation
42
arrangements are satisfactory. OW described her home to Ms Donnachie as "warm and
comfy". Should the two younger girls return to Dubai the pursuer and YW would require to
move to larger accommodation as their current apartment is a two bedroomed one, albeit
spacious and well furnished. I accept that it would be reasonably easy for the pursuer to
organise and fund that through his remuneration package.
[55]
Turning to the central relationships in the girls' lives, their mother has effectively
never worked outside the home and has been their primary care giver. I accept that she is a
loving mother to the two girls, who seem close to her as the views expressed to Ms Donachie
indicate. Since coming to Scotland, the girls have spent time with their father physically
only on the Georgia trips. However, they have always maintained contact with him through
electronic means, other than when the defender stopped that contact between October and
December 2020. While I accept that she may have perceived that the pursuer was using
contact to try to persuade the girls of the advantages of life in Dubai, the time during which
the defender refused to allow video contact was when she felt threatened by the raising of
these proceedings. She now accepts that the girls should have ongoing contact with their
father; despite her complaints about him she did not seriously suggest he should not be
involved in their lives. That is unsurprising given that her explanation in evidence for
supporting his claim to be reunited with his family in the UK was that she felt the girls
should have their father living with them. The pursuer emphasised his perception that the
girls live an isolated life and have few social contacts. Covid 19 restrictions aside, that
perception was not really supported by such extraneous evidence as there was and I have
noted the reference by SW's teacher to her having a group of close friends at school. Should
the girls be returned to Dubai there would inevitably be a period during which they had to
make new friends or reconnect with those they have not seen for over four years in order to
43
resume their social life. OW in particular would have no concrete links there initially. I am
not satisfied that there would be immediate social benefits of a return to Dubai. There was
little or no independent evidence to support a contrary view. Mr NN is reliant on what the
pursuer tells him about this and YW is hardly independent, having ceased any relationship
with her mother.
[56]
So far as the girls' views are concerned, these are summarised at paragraphs [5]
and [6] above. There was no suggestion by either side that either SW or OW was too young
or immature to express a view and I take account of the views they have expressed. It is
clear from Ms Donachie's report that, while SW remembers and misses life in Dubai, OW
has no real recollection of life there and likes living in Scotland. She was clear that whatever
happens she does not want to leave her mum and would not want any change to the current
arrangements. She is not so close to YW given the age gap. SW misses her dad, her sister
and living in Dubai. She would like to visit them frequently and was sad she could not live
with them. However, SW had nothing negative to say about living with her mother, stating
that she liked living with her mum and thought it good that her mum was "doing it on her
own". She would prefer if the whole family could live together and it makes her sad that
she can only see her father on video calls. Her reasons for preferring Dubai to Scotland were
that the weather was better there and there were more things to do. Ms Donachie conveys
that SW was quite distressed at having to discuss these matters. The impression I have is
that SW feels conflicted and would prefer not to choose as between which parent she will
live with, although being separated from her father and sister causes her to be upset. She
has just attained the age of 15 years and within a year will be able to make the decision
herself about where and with whom she wants to live. It was unfair of the defender to
involve SW in reading Ms Donachie's report to her and this will have added to the pressure
44
on SW to please both parents. So far as OW is concerned, I conclude that she would be
upset and anxious if separated from her mother for long periods of time. The defender was
uncomfortable when asked whether she would return to Dubai if there was an order
returning the children. They are clearly her priority but she may now have difficulties
securing residency in UAE if separated from her husband. There was no evidence
independent of the parties supporting the position of the pursuer that he could secure
residence for her. In any event, this court cannot tell the defender where to live and she is
unwilling to return to Dubai at this stage.
[57]
SW and OW have two parents who love them and it is patently in their best interests
that both parents should be involved in their daughters' upbringing. The challenge is how
that can be achieved standing the defender's current refusal to return to UAE. I am not
satisfied that it would be better for either SW or OW to be returned to live in Dubai with
their father than for both to remain in Scotland at this stage. It would be disruptive to move
either of them during an academic year and SW is at an important stage in her secondary
school education. Her fond memory of the weather in Dubai is not a material factor, unlike
her emotional tie to her father and YW, which has weighed more heavily in my
determination of the issues. OW has seen one sister depart already and she is close to the
one who remains with her. It is apparent that OW derives her sense of emotional security
from living with her mother and sister. It would not be in her interests to be separated from
her mother, so if the defender remains resident here, so too should OW. Further, it would
not be in OW's interests to be separated from SW at this time. The girls' current living
arrangements have subsisted for four years. I consider that, on balance, it would be better
for SW and OW for those living arrangements to continue meantime and I intend to grant a
Residence Order to reflect that. The events of 2017 and the findings I have made about their
45
mother's behaviour and motivation at that time have less bearing on the issue of what is
currently best for the girls than the evidence of their settled existence in this jurisdiction. I
am not prepared to order a disruption of the current arrangements.
[58]
I have concluded that what would be best for SW is for her to be given the
opportunity in due course to exercise a choice about where and with whom to live after she
has spent some time with her father again. I consider that both girls should be given the
opportunity to spend time with the pursuer. This should be for a short holiday in the first
instance, in a country as close as reasonably practicable to the UK if it is not possible for the
pursuer to enter the UK. It would be beneficial if YW could spend time with her sisters in
person too. Again, subject to her educational commitments, she may be able to travel with
her father. It is to be hoped that two or three such trips over the course of the next year
might be possible. Physical re-engagement with their father of this sort will allow SW to
make an informed choice about whether she would like to stay in the UK or return to Dubai
at age 16 as her sister did. So far as OW is concerned, reconnecting more meaningfully with
her father than the current video calls permit should allay any anxieties she has about being
apart from her mother. It will be for others to decide whether the defender and the girls will
be permitted to remain in the UK in the longer term should they wish to do so.
[59]
As indicated above, I consider that there is force in the submission for the defender
that a grant of refugee status in the UK carries with it protection against a forced removal,
which would include an order of the court in a family dispute. While an order for return to
Dubai would not amount to refoulement as such, it would appear on the face of it to
contradict the Secretary of State's earlier decision, unlike a voluntary return, which is always
possible. In light of the decision I have reached about the children's best interests, I do not
require to express a firm view on that matter. However, had I decided that it would be
46
better for SW and OW to be the subject of an order to return to Dubai, I would have invited
the advocate general to make submissions on the matter before deciding whether I could
make a formal order. For the avoidance of doubt, the prohibition on the girls entering
Sudan remains in force and could not be the subject of interference by this court . I will fix a
By Order hearing at which I will hear parties on the issue of the orders to be made to reflect
the decision I have reached. In particular I expect there to be liaison on arrangements for the
in person contact I have decided should take place. I will also reserve all questions of
expenses meantime so that they can be addressed at the hearing. Finally, I wish to express
my gratitude to counsel for their forbearance and perseverance during the technical and
connectivity issues encountered during the virtual proof.
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