Annotated Bibliography 5 sources/paragraphs

International Journal of Refugee Law Vol. 22 No. 1 pp. 48–71 © The Author (2010). Published by Oxford University Press. All rights reserved. For Permissions please email: [email protected] doi:10.1093/ijrl/eep032, Advance Access published on January 21, 2010

Muslim Women’s Claims to Refugee Status Within the Context of Child Custody Upon Divorce Under Islamic Law

EkATERINA YAhYAOUI kRIVENkO*

Abstract This article analyses case law from the Uk, New Zealand, and Canada relating to claims for recognition of refugee status presented by divorced Muslim women, revolv- ing around the issue of child custody after divorce under conservative Islamic law, which deprives women of any meaningful relationship with their children. The nega- tive attitude of the Uk authorities is compared to the open and positive approach of decision makers in New Zealand and Canada. The use and interpretation of aspects of the refugee definition, such as persecution, particular social group and the standard of state protection, are analyzed in more detail. The article argues that, in order to adequately evaluate this type of claim, decision makers should take into account all aspects of a woman’s experiences including the consequences of the decision on their children.

1. Introduction As the title indicates, this article deals with claims for refugee status made by divorced Muslim women on the basis of automatic deprivation of custody of their children upon divorce in countries which attempt to preserve, allegedly unchangeable, Islamic law. Muslim women applying for refugee status in these situations would like to escape this, in their view, arbitrary and discriminatory rule, preserve a meaningful relation- ship to their children, and also protect their children from possible nega- tive consequences.

Through analysis of both case law and the attitude of decision making authorities in the Uk, New Zealand and Canada, some suggestions for appropriate ways for refugee status determination authorities to approach such claims are formulated.

The claims of women for the recognition of refugee status in the cases discussed in this article are situated at the intersection of gender related claims (principle of non-discrimination) and implementation of the best

* PhD, Graduate Institute, Geneva, Switzerland; LLM, Albert-Ludwigs University, Freiburg i. Br., Germany; D.E.S., Graduate Institute, Geneva, Switzerland; Lecturer, Faculty of Law, University of Montreal, Canada. The author can be contacted at: [email protected].

49Muslim Women’s Claims to Refugee Status Within the Context of Child Custody Upon Divorce Under Islamic Law

interests of the child principle. The fundamental basis for these refugee status claims is the application in the country of origin of an allegedly Islamic, and thus unchangeable, rule that automatically deprives divorced mothers of the custody of their children when the latter reach a certain age or the mother remarries. Thus, from a more general point of view, this article also contributes to a better understanding of gender related persecution.

Integration of gender related claims into refugee law is regarded as well established and the issue of gender related persecution attracts far less attention today than was the case a decade or two ago. As a matter of prin- ciple, gender-related claims are recognized as valid in the refugee status determination procedures of the majority of Western states.1 Concrete interpretations can differ, but a number of national gender related persecu- tion guidelines,2 as well as the United Nations high Commissioner for Refugees’ (hereinafter UNhCR) position on the issue,3 represent clear evidence in favor of the general recognition of the fundamental validity of such claims. however, as this article will attempt to demonstrate, we are still a long way from an adequate recognition of the specificity of women’s experiences of persecution, as is the case for many other non-traditional forms of persecution. Particularly alarming in this context is the use of several aspects of the definition of a refugee, as formulated in the Conven- tion Relating to the Status of Refugees,4 with ‘a particular social group’ being at the center of this analysis.

The article will start with a brief presentation of the rule concerning the issue of child custody upon dissolution of marriage in countries applying religion-based, and thus allegedly unchangeable, Islamic law. Some aspects of the general theoretical framework in terms of refugee

1 For an overview of the different situations in some countries, see, B. Ankenbrand, ‘Refugee Women Under German Asylum Law’ (2002) 14 IJRL 45; J. Freedman, ‘Women Seeking Asylum’ (2008) 10 International Feminist Journal of Politics 154-72 (the situation in France); h. Crawley and T. Lester, Comparative Analysis of Gender-Related Persecution in National Asylum Legislation and Practice in Europe (Geneva: UNhCR, 2004); N. LaViolette, ‘Gender-Related Refugee Claims: Expanding the Scope of the Canadian Guidelines’ (2007) 19 IJRL 169.

2 See, e.g., United kingdom (Uk), Asylum and Immigration Tribunal, ‘Asylum Gender Guide- lines’, 1 Nov. 2000, available at: <http://www.unhcr.org/refworld/docid/3ae6b3414.html>; Canada, Immigration and Refugee Board, ‘Guidelines Issued by the Chairperson Pursuant to Section 65(4) of the Immigration Act: Guideline 4 - Women Refugee Claimants Fearing Gender-Related Persecution’, 13 Nov. 1996, available at: <http://www.unhcr.org/refworld/docid/3ae6b31c98.html>; United States, Bureau of Citizenship and Immigration Services, ‘Considerations for Asylum Officers Adjudicating Asylum Claims from Women’, 26 May 1995, available at: <http://www.unhcr.org/refworld/docid /3ae6b31e7.html>.

3 UNhCR, ‘Guidelines on International Protection No. 1: Gender-Related Persecution Within the Context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol Relating to the Status of Refugees’, 7 May 2002, hCR/GIP/02/01, available at: <http://www.unhcr.org/refworld/docid /3d36f1c64.html>.

4 United Nations Convention Relating to the Status of Refugees, 28 July 1951, 189 UNTS 137. hereinafter, the Refugee Convention or the Convention.

50 Ekaterina Yahyaoui Krivenko

status determination and human rights law will then be highlighted, followed by an analysis of several cases where the issue of custody was central to the claim. Finally, some conclusions and suggestions for appro- priate ways of dealing with such claims in refugee status determination procedures will be formulated.

2. The custody of children under Islamic law Many countries with a Muslim majority population declare Islam to be their official religion and the source of their legislation.5 however, in many of these countries the only area of law that is closely linked to religious interpretation is personal status and family law. Several countries with significant Muslim minorities maintain separate religious laws and court systems for the personal status and family law issues of these minorities.6

As traditionally presented in conservative Islamic discourses, the issue of custody upon dissolution of marriage or the death of the father is regu- lated in the following way. The physical custody (provision of care) of a young child is granted to the mother, while the legal representation (or guardianship) is always a father’s prerogative.7 Thus, even if the child can actually reside with his mother until a certain age, she is regarded as no more than a care-giver, whereas the father maintains decision making power over all matters relating to the child. It is obvious that in this situa- tion the father will always be able, if he is willing to do so, to control not only the life of the child, but also of the mother. Upon the child reaching a certain age, which varies significantly from one school of Islamic law to another,8 or on the mother’s remarriage, custody of the child passes to the father.9 The mother is deprived of custody automatically on either of these events and traditionally courts or judges have no discretion in this issue. Moreover, the father is able to challenge the initial custody right of the

5 Usually this proclamation is made in the Constitution of the concerned states. See, e.g., the Con- stitution of Afghanistan, Art. 2; the Constitution of the People’s Republic of Bangladesh, Art. 2A; the Constitution of the kingdom of Bahrain, Art. 2; the Constitution of Morocco, Art. 6; the Constitution of Malaysia, Art. 3 (1).

6 The most well known examples are India and Israel. 7 For a general overview of this distinction and its application in a number of modern Muslim

states, see, Women Living Under Muslim Laws (WLUML), Knowing Our Right: Women, Family, Laws and Customs in the Muslim World (2006), 337-41.

8 According to some most conservative interpretations, the age at which the mother loses custody of her children is fixed at as low as two years, e.g., as for boys in Iran. This is linked to the breastfeeding of children, which, according to religious interpretations, should be continued until the child reaches the age of two. This rule, therefore, demonstrates once more that the relationship between the mother and the child is reduced to the simple physical function and thus perpetuates a clearly degrading view of women. Other interpretations allow women to take care of their children until the age of majority. For a general overview of various rulings, see, J. J. Nasir, The Islamic Law of Personal Status (2nd ed., 1990), at 187-9.

9 Ibid., 178-80.

51Muslim Women’s Claims to Refugee Status Within the Context of Child Custody Upon Divorce Under Islamic Law

mother on grounds such as, for example, ‘immoral’ behavior or insufficient religiosity of the mother. Another important consideration in deciding cus- tody is the earning potential of the mother, that is, her ability to materially support her child. This ability is often significantly limited or impeded by various legal and social norms regulating women’s behavior.10 If, for what- ever reason, the father is deemed unfit as a parent, the guardianship can be granted to a male member of the father’s family, but not to the mother, or to any member of her family.11

This general framework is being criticized and recognized as inadequate by many Muslims themselves, and the modern legislation of several Muslim countries has reinterpreted this inflexible and arbitrary rule, primarily, in order to protect the principle of the best interests of the child.12 In many countries the age limit at which custody passes to the father is fixed as high as possible, in some cases being the age of majority or marriage, as in Algeria for girls and in Morocco for boys and girls, for example.13 Accord- ing to the legislation of many Muslim states, when a judge has to decide custody issues, the principle of the best interests of the child should be taken into account. This opens the possibility of women retaining custody after the age limit.14 Other states include the obligation to consult the child about his preference for remaining with the mother or with the father.15 In Morocco, for example,16 not only is it possible for the child to remain with

10 E.g., legal impediments, such as prohibitions of certain professions; restrictions on residence and free movement without a male relative; but, also, social barriers, e.g., difficulty of finding day-care arrangements for children where there is no family support.

11 Nasir, above n. 8, 205-11. 12 It should be emphasized in this connection that all Islamic states are parties to the United Nations

Convention on the Rights of the Child, 20 Nov. 1989, 1577 UNTS 3 (hereinafter, CRC). Although many of these states accompanied their accession to the CRC with reservations, as such, the principle of the best interests of the child was never questioned. Moreover, the two countries from which the claimants in the cases considered below come, namely, Iran and Lebanon, have not formulated any reservations to this convention.

13 See, Art. 65 of Algerian Family Code, promulgated by law No. 84-11, 9 June 1984, French text available at <http://20ansbarakat.free.fr/codedelafamille.htm>; and Art. 166 of Moroccan Family Code (Moudawana), dahir No. 1-04-22 of 12 hija 1424, 2 Feb. 2004, promulgating law No. 70-03, Bulletin Officiel No. 5358 of 2 ramadan 1426, 667, available at <https://hrea.org/moudawana .html>.

14 Among states with either legislation or jurisprudence referring to the principle of the best inter- ests of the child when deciding the issue of custody are, e.g., Egypt, Iraq, the Maldives, Mauritania, Morocco, Pakistan, Tunisia, and Syria. The most well-known examples from jurisprudence include, Bangladesh: Abu Baker Siddique v. S.M.A. Bakar and others, 38 Dhaka Law Reports (AD) 1986; and Pakistan: Mst. Zohra Begum v. Sh. Latif Ahmed Munawar, Pakistan Legal Decisions 1965, Lah. 695.

15 E.g., such is the practice in Indonesia, and so requires Art. 166 of the Moroccan Family Code, above n. 13.

16 Morocco is selected not because it has the best legislation or the best practice in this respect, but because of its recent reforms, which, while significantly improving the situation of women, still contain several gaps and call for the attention and sensitivity of decision makers faced with claims for recogni- tion of refugee status by women from Morocco. See, for example, the evaluation of this new legislation as less option-giving in the document prepared by NGO WLUML, above n. 7, 346, as well as the case described below, n. 18.

52 Ekaterina Yahyaoui Krivenko

its mother, but the mother can be granted both the custody and the guard- ianship of the child.17 Of course, women often still face many difficulties; in particular, of providing the necessary evidence. Furthermore, in some cases, even in these more liberal countries, women will be subjected to treatment that could amount to persecution.18 Moreover, the introduction of the best interests of the child principle alone will not necessarily result in a greater respect for the mother-child relationship. If the country has a very strong tradition of patriarchy, judges faced with a case of an unfit father will favor other male members of the family over the mother.

Despite these positive developments in some parts of the Muslim world, the situation in other Muslim states remains less advantageous, not only for women but also for their children; both having no choice regarding separa- tion once the child reaches a certain age. This occurs automatically, even in the complete absence of a child-father (or other male member of his family) relationship or when the father is unable to fulfill his parental duties. In such countries mothers can eventually obtain only very limited visita- tion rights, which are unenforceable, especially as the father, having both custody and guardianship of the child, has sole responsibility for all deci- sions related to the child and can change residence without consulting, or even informing, the mother, who may thus become unable to locate her child. In contrast, mothers who move with their children, both during the custody period and after its termination, can be accused by fathers of kidnapping and have been subject to sentences, including imprisonment.

3. Refugee law’s theoretical framework for dealing with claims involving custody issues It is easy to imagine the suffering and hardship imposed on mothers and children when a conflict arises between a woman and her husband, or former husband. The fundamental difference between custody disputes arising, for example, in Western states and those occurring in Muslim countries applying a conservative version of Islamic law is the arbitrary character of the applicable rule. This rule not only neglects to take into

17 See, generally, Art. 231 of Moroccan Family Code, above n. 13, which mentions the father as the first legal representative of the child and the mother as the second in the case of the father’s absence or inability to exercise legal representation. Also important is Art. 175, which allows mothers to retain custody of their children in the case of remarriage in several instances, including when the mother is the legal guardian of her child.

18 For an example of recognition of refugee status to a Moroccan woman, who fled from her violent husband with her two children to Canada, see, RPD file No. AA3-00181/00185/00186, 2004 CanLII 56670 (IRB), 21 May 2004. Although the case was decided shortly before the official entry into force of the legislative changes, which significantly improved the position of women in family matters, the decision takes them into account and still recognizes the refugee status of the claimant, paying due attention not only to the particular situation of the claimant, but also to the remaining gaps in the new legislation, and the insufficiency of enforcement mechanisms.

53Muslim Women’s Claims to Refugee Status Within the Context of Child Custody Upon Divorce Under Islamic Law

account the fundamental interests of the child, but also imposes a kind of punishment on divorced women, or women wishing to divorce, who are thus subjugated to and made dependant on their husbands, whatever the reason for divorce.

how could refugee status determination authorities approach claims made by women fearing the loss of custody and the end of a meaningful relationship with their child? In order to answer this question and articulate the wider implications, as suggested in the introduction, it is important to recall some fundamental features of the refugee definition to consider their relevance to these types of claims before examining the approach adopted by the national authorities of the three countries under consideration.

One particular feature of the refugee definition contained in Article 1A(2) of the Convention relates to its legal articulation and application. It can be described as the dismembering or division of refugee experience according to each of the terms of the definition, and even beyond them. Although this approach to legal concepts and definitions is a common legal and judicial attitude, if applied too strictly by decision makers it can lead to essentialization of some aspects of the refugee experience. This will obviously be at the expense of other aspects of his or her experience, which can result in the misrepresentation of the facts and, ultimately, in rejection of the application and return to persecution. Although both the UNhCR and several national authorities dealing with refugee status determination emphasize the importance of a holistic approach,19 the elaboration of various aspects of the refugee definition by the very same authorities leads to an unwitting reinstatement of the fragmentation and disintegration mentioned above.20

Several issues relating to the articulation of international refugee law can be distinguished in this regard. First and foremost, does the treatment of women in such situations amount to persecution? Lawyers will also enquire about particular Convention grounds, with women as a particular social group being their first thought. The issues of the agent of persecu- tion and the availability of state protection will also be examined. Apart from these issues, which belong to the narrowly defined area of refugee law, more general questions of human rights protection, especially in coun- tries operating some system of complementary or subsidiary protection,

19 For a UNhCR position, see, e.g., the emphasis made in Gender Guidelines, above n. 3, para. 7 (‘In attempting to apply the criteria of the refugee definition in the course of refugee status determina- tion procedures, it is important to approach the assessment holistically, and have regard to all the rel- evant circumstances of the case’). For an example from a national jurisdiction, see, the emphasis made in the Uk case Horvath v. Secretary of State for the Home Department [2001] 1 AC 489.

20 The division, according to particular terms of the definition (persecution, Convention grounds, whereby particular social group is treated more extensively and separately, state protection, etc.), used in national gender guidelines is illustrative of this disintegration of several aspects of the claim. See, e.g., the very detailed table of contents of the Uk Guidelines, above n. 2, 2.

54 Ekaterina Yahyaoui Krivenko

also deserve to be addressed. It is equally important to be attentive to the situation, fate and claims of children in any proceedings when the issue of custody is at stake.

Although the holistic approach, which does not separate the various aspects of a claim is more productive, and even favored by the UNhCR, as has been mentioned above, for the purposes of this study, it is more use- ful to shed light on each of the aspects separately. This will demonstrate the effect of this separation on women’s claims. These claims are presented in a brief but holistic form below, before consideration of some of the legal aspects.

4. Overview of women’s claims relating to the issue of custody This section will begin by examining two Uk cases. The negative approach of the Uk authorities will be compared to the open and positive attitude of decision makers in New Zealand and Canada in very similar cases.

4.1 The EM case In the most recent Uk case, 21 the appellant, a citizen of Lebanon, was married in her country of origin to a man who, it was accepted by the judges, married her for her money. he did not want children and was violent. her first pregnancy failed after he hit her in the stomach. When a child was born in 1996, the father went to the hospital planning to remove the son from his mother and to take him to another country. he was prevented from doing this, and became increasingly violent and un- caring towards his wife and child. The appellant succeeded in obtaining a divorce from the Lebanese courts. As a result of the divorce procedure, the custody of the child was granted to the mother until he reached the age of seven. After that date, the custody was to automatically transfer to the father, or to a male relative from the father’s family. The mother could only hope to obtain occasional and supervised visitation rights in a

21 The procedural history of the case, as considered in this article, starts with the decision of the Asylum and Immigration Tribunal (hereinafter, the AIT), which is a result of the appeal lodged against the negative decision of an immigration judge: Asylum and Immigration Tribunal, Appeal No. AS/04832/2005, 11 Nov. 2005. This decision was followed by a judgment of the Court of Appeal of England and Wales (hereinafter, the Court of Appeal), which dealt only with the application to stay on humanitarian grounds: EM (Lebanon) and Secretary of State for the Home Department (21 Nov. 2006) [2006] EWCA Civ 1531. The judgment refused to grant her this right to stay, which was only granted at the final appeal by the house of Lords: EM (Lebanon) (FC) (Appellant) (FC) v. Secretary of State for the Home Department (Respondent) (22 Oct. 2008) [2008] UkhL 64. Generally, the case is referred to as the EM case. This case is discussed from a different perspective, and in a different context, in E. Yahyaoui krivenko, ‘Feminism, Modern Philosophy and the Future of Legitimacy of International Constitu- tionalism’ (2009) 11 International Community Law Review 232-7.

55Muslim Women’s Claims to Refugee Status Within the Context of Child Custody Upon Divorce Under Islamic Law

place designated by the court, but not at her home. The father and the child had no relationship; and the child knew no other member of the father’s family.

As her son’s seventh birthday approached, in order to avoid losing her son, the appellant first left the place of her habitual residence and, in December 2004, managed to come to the Uk with the child, where she applied for asylum.

however, her asylum application was rejected, as was, initially, her appli- cation to remain in the country on humanitarian grounds. Although her final appeal to the house of Lords with regard to the permission to stay on humanitarian grounds was successful, the history of the case, as well as the rejection of her claim for refugee status, raises many questions.

The consideration of the application for refugee status is very brief. It rejects both the fact that women in Lebanon constitute a particular social group for the purposes of refugee definition, as well as the possibility of treatment that might amount to persecution upon her return to Lebanon. In the applicant’s request for permission to stay on humanitarian grounds, which relied on the possible violation of Article 8 (right to family life) of the European Convention on human Rights (hereinafter, the EChR),22 the reasoning of judges revolved around the notion of a foreign case that required evidence of a flagrant violation of the right to family life. Judges of the Court of Appeal justified their rejection by stating that no flagrant violation of the applicant’s right to family life would occur in Lebanon, since there would be a possibility for her to obtain occasional visitation rights.23 The members of the house of Lords, while granting permission to stay on humanitarian grounds, emphasized the highly exceptional cir- cumstances of the case as a basis for their decision, thus avoiding passing any judgment on the Lebanese legal regulation of custody.24 The position adopted by both the house of Lords and the Court of Appeal is very ques- tionable from the point of view of human rights protection. however, this aspect of the case will not be discussed further because it does not directly relate to the granting of refugee status.25

4.2 The ZH case Another Uk case which is relevant to our analysis arose out of the application for the recognition of refugee status by an Iranian national,

22 Convention for the Protection of human Rights and Fundamental Freedoms adopted by the Council of Europe on 4 Nov. 1950, in force since 3 Sept. 1951. The official text is available at the Council of Europe web-site: <http://conventions.coe.int/Treaty/Commun/QueVoulezVous.asp? NT=005&CL=ENG>.

23 EM case, Court of Appeal, above n. 21, para. 35. 24 EM case, hose of Lords, above n. 21, para. 60. 25 Some of the issues arising in this connection were discussed in a previous article, Yahyaoui

krivenko, above n. 21.

56 Ekaterina Yahyaoui Krivenko

who arrived in the Uk with her daughter.26 In Iran, she suffered verbal and physical abuse from her alcohol and drug addicted husband, to whom she remained officially married. To support her asylum applica- tion, she outlined the difficulties faced by women in Iran when attempt- ing to initiate a divorce procedure, including subsequent difficulties with finding employment and a residence, as well as the possible accusation of adultery and the prospect of losing custody of her daughter. She also mentioned that her daughter feared her father and wished to have no contact with him.

her application for refugee status was initially accepted but subsequently rejected by the Immigration Appeal Tribunal (hereinafter, the IAT) on the appeal of the Secretary of State for the home Department. The central argument revolved around the situation of women in Iran, which, according to the IAT, could not be compared to the situation of women in Pakistan, as described in Islam and Shah,27 so that it was not considered possible to affirm that women in Iran constitute a particular social group for the purposes of refugee status determination.28

Although the issue of women as a particular social group in Iran is dis- cussed in detail, the consideration of human rights claims is very brief. One could even say excessively brief, taking into account the fact that the refugee claim was rejected.

4.3 New Zealand’s cases Contrasting with the attitude of Uk authorities is the position adopted by New Zealand’s Refugee Status Appeal Authority (hereinafter, the RSAA) and, even more strikingly, the approach of Canadian authorities. The situation in New Zealand will be examined with reference to the cases of two Iranian women, who feared losing custody of their children, sub- sequent to divorce in one case and family breakdown in the other.

In the first case,29 the applicant, an Iranian woman, came to New Zealand with her son, aged eight at the time of arrival. In Iran she was married to a violent and indifferent man, who held her, almost like a pris- oner, at his house. When she gave birth to her son, she was not allowed to see her child and was initially told that he was sick and, a few days later, that he had died. She discovered that her child was in face alive a year later, during the final stage of divorce proceedings in which her husband was granted custody of the child.

26 ZH (Women as Particular Social Group) Iran CG [2003] UkIAT 00207 (6 June 2003). hereinafter, the ZH case.

27 R v. IAT ex parte Shah and Islam [1999] 2 AC 629. 28 ZH case, above n. 26, para. 74 in particular. 29 Refugee Appeal No. 71427/99, New Zealand: RSAA (16 Aug. 2000) available at: <http://www

.unhcr.org/refworld/docid/3ae6b7400.html>.

57Muslim Women’s Claims to Refugee Status Within the Context of Child Custody Upon Divorce Under Islamic Law

By chance, she discovered that her husband had sold his child to another couple, and later that after being granted custody, the child did not reside with him. Although she knew that she would never be awarded custody of her child, she decided to seek intervention from an Iranian court in order to protect her child. After a long sequence of judicial proceedings, she was first granted one day per week visitation rights, which she was not able to exercise because the father hid the child. Subsequently, although leaving the formal custody with the father, a court in Iran gave her responsibility for the full-time care of the child, provided she did not move out of the matrimonial home in order to allow the father visitation rights, and pro- vided she did not remarry. If she failed to comply with these conditions, not only would she lose her son, but she would also be subject to punish- ment by imprisonment.

The father was very angry about this apparent snub and the defeat, and threatened to kidnap the child. Being afraid for her own safety and the safety of her son, the appellant moved to another town and later left Iran with her child. In addition to fearing the attitude of her former husband and punishment upon her return, she also faced the loss of her son as, before her departure, she had entered into a temporary marriage, breach- ing one of the conditions of the court order.

Refugee status was granted to the woman only upon appeal. however, the decision taken by the RSAA is exemplary in several regards. Not only does it adopt a multifaceted and nuanced approach in the analysis of the country of origin information, but the consideration of the case is one of the best examples of the holistic approach, whereby all aspects of the woman’s experiences were accorded necessary consideration. The RSAA fully apprehended the arbitrary and discriminatory nature of the legal system in place. The decision makers did not overemphasize her limited ‘success’ before the Iranian courts, and they accorded full weight to her choices.

The second case from New Zealand, also decided by the RSAA, dem- onstrates similar sensitivity and understanding.30 In this case, the appellant came to New Zealand with her husband and her daughter, who was aged three at the time of the decision. Initially, the entire family applied for refugee status, although unsuccessfully. As a consequence, the husband, who had been violent and possessive in Iran, became even more hostile towards his wife, who refused to be fully submissive to him. her encounter with a more liberal style of life in New Zealand reinforced her determina- tion not to follow her husband and not to return to Iran. Therefore, she lodged a separate appeal for recognition of refugee status for herself and her daughter and was successful. The RSAA took into account the difficulties

30 Refugee Appeal Nos. 76226 and 76227, New Zealand: RSAA (12 Jan. 2009) available at: <http:// www.unhcr.org/refworld/docid/49a6ac0e2.html>.

58 Ekaterina Yahyaoui Krivenko

she could face upon her return to Iran, including possible divorce and its consequences, such as difficulty in finding employment and housing, as well as the real possibility of arbitrary denial of custody rights. Decision makers also gave due weight to the situation of the child, who had no real relationship with her father on a day-to-day basis.

4.4 Canadian cases Several refugee claim cases, with child custody as a central issue, can be found in Canadian case law. The consideration of cases is usually very brief and leads to positive outcomes at first instance. Three cases are considered here. The first is the case of a divorced woman from Lebanon, whose situation was very similar to that of the appellant in the EM case. The two other cases are claims presented by women from Iran, one of whom was widowed prior to arriving in Canada, while the other, although divorced in Canada, was still considered as a wife by her Iranian husband, and was in a very similar situation to that of the Iranian claimant in the ZH case.

The case from Lebanon31 concerns a woman who fled to Canada with her minor child to escape the same custody rule as that involved in the Uk case. As in the EM case, she was married to an indifferent hus- band, who took care of neither her nor the child. The divorce was initi- ated by the husband, who married again while still married to the applicant and moved to Saudi Arabia. When the child was nearly seven, the ex-husband initiated proceedings to take custody of the child. Since he was still residing in Saudi Arabia, he acted through his brothers, and other family members, who were involved in the Syrian Baath Party and thus in a powerful position. The claimant also stated that, although she was a faithful follower of Islam and fully aware of the custody rule, she did not want her husband to take custody of the child due to his violent activities and the absence of any relationship between the father and son. Furthermore, the mental health problems (chronic low grade depression) of both the mother and the child were also relied on in the case.

In the first Iranian case,32 a woman and her son fled to Canada when, after the death of her husband and her son reaching the age of seven, her in-laws obtained custody of the child, mainly on the basis of her non- compliance with the dress code and thus immorality.

In the second Iranian case,33 the woman arrived in Canada with her two minor sons to join her husband, the father of the children, who had

31 L. (H.X.) (Re) [1993] CRDD No. 259 (31 Dec. 1993). 32 A.I.P. (Re) [1999] CRDD No. 12 (28 May 1999). 33 X (Re) 2000 CanLII 21385 (IRB) (29 May 2000).

59Muslim Women’s Claims to Refugee Status Within the Context of Child Custody Upon Divorce Under Islamic Law

already applied for refugee status. The claims of the family were joined. however, upon refusal of the refugee claims and the husband’s desire to return to Iran, the woman, who had suffered domestic violence and had been divorced in Canada, filed a new application for refugee status. This application included the difficulties she and her children would face upon return, taking into account the non recognition of the Canadian divorce by the husband and by Iranian authorities. She stressed that upon their return to Iran the father of her children would divorce her according to Iranian laws and would be granted custody of the children. Moreover, taking into account her engagement to another man, her husband and his family would accuse her of adultery and she would face death by stoning.

In all cases resulting in positive decisions the Canadian authorities take a holistic approach, not separating the experiences and needs of the women and children. The issue of the mental health of both mothers and children is also accorded a due weight.

Before considering some of the legal aspects of these claims, it is impor- tant to emphasize significant common features in the cases presented above. Firstly, in all the cases, a similar, allegedly Islamic, rule on custody upon divorce, which arbitrarily deprives mothers of any meaningful rela- tionship with their children, is central to the refugee claim. Even if other factors intervene, for example, domestic violence or the possible accusation of adultery upon return in Iranian cases, the formulation of claims by women demonstrates that the request for refugee status is based on con- cern for their children. It is not simply an attempt to revisit the issue of custody. They are not simply concerned with their own well-being. In these cases, the suffering of the mother is linked to the suffering of the child, and vice versa. If the child is forced to separate from the mother, its well-being will be significantly affected. The mother is often in a situation that makes remaining married impossible, or one where the separation has been initi- ated by the husband. Mothers with no other means of protecting the child during separation proceedings face a state-established patriarchal hierar- chy, which can harm children forced to remain with the father.

5. Consideration of relevant aspects of refugee claims by national authorities The following legal analysis concentrates on three issues that were extensively discussed in all the decisions presented above: whether the treatment women could receive upon return amounts to persecution, whether sufficient state protection is available; and finally, whether women constitute a particular social group. The issue of women as a particular social group is addressed first, because it forms the core of negative Uk decisions.

60 Ekaterina Yahyaoui Krivenko

5.1 Women as a particular social group and other Convention grounds In the EM case, the applicant’s lawyer formulated her claim for recog- nition of refugee status based on membership of a particular social group, namely, women in Lebanon, and essentially argued that ‘there is clearly no regard for woman’s rights in Lebanon’.34 The judges of the AIT rejected this thesis relying mainly on two arguments. Firstly, since the appellant was able to obtain divorce, despite her husband’s hostile behavior, women are not completely deprived of rights.35 Secondly, they referred to the Freedom house report, which, although recogniz- ing the existence of some discriminatory practices against women in family and personal status matters, states that ‘women enjoy most of the same rights as men’.36

In this connection, AIT judges observed that:

Muslims in Lebanon are governed, in family matters, by Muslim law. The fact that the rules of Muslim law operate in a way which some Western societies might regard as discriminatory does not show that all women are deprived of standing before the law.37

The judges do not explain why the existence of discrimination in family and personal status matters cannot be considered as sufficient for the purposes of the refugee status claim of the appellant. The AIT rejected the claim that women in Lebanon can be regarded as constituting a par- ticular social group for the purposes of refugee status determination in a very brief, five-paragraph section. The fact that women are arbitrarily denied such a fundamental right as the right to family life, and a relation- ship with their children, is not seriously considered by the AIT. Moreover, the quotation above suggests that the very fact that family matters are governed by Muslim law is sufficient to justify at least some form of dis- crimination without any regard to the fact that there exists in Muslim law a variety of interpretative possibilities that allow for the establishment of family law systems eliminating discrimination against women, at least to some degree, in the matter of guardianship and custody of children upon divorce.38 Furthermore, the judges did not address the right to freedom of religion of Muslim women who refuse to submit to this particular interpretation of Islam.

34 EM case, AIT decision, above n. 21, para. 6 35 Ibid., para. 7. 36 Ibid., para. 8 37 Ibid., para. 9. 38 As mentioned before, the analysis of the legislation of states incorporating, in one way or another,

Islamic law in their family law legislation reveals that in many such states the guiding principle in decid- ing on the guardianship and custody of children upon the dissolution of marriage is the best interests of the child and not the sex of the parents. See above n. 14.

61Muslim Women’s Claims to Refugee Status Within the Context of Child Custody Upon Divorce Under Islamic Law

The AIT added that, even if there were to be ill-treatment on one of the Refugee Convention grounds, it would not amount to persecution. This statement implies that if a mother was imprisoned upon return to Lebanon for defending her right to a meaningful relationship with her child, and to protect her child from a father’s abuse, it would not amount to persecution.39 The very fact that such a regulation on guardianship upon divorce places women in a highly dependent position, and subjects them to the actions of their former husbands, perhaps even being treated as a slave, seems either not important to judges or not apparent to them. The issue of persecution in relation to the cases under consideration will be discussed below.

Moreover, the use made of the country of origin information appears uninformed and biased. First, the mandate of Freedom house, to whose report the AIT refers, emphasizes the privilege accorded to civil and political rights.40 Other types of rights, in particular those which are relevant to the present case, are considered only marginally. In this light, the use of the Freedom house’s report as the only documentary source for country of origin information is highly inadequate. Secondly, the decision makers should have, at least, recognised the critique of the reports of this organization.41

The choice itself, the choice of judges to discuss the issue of women as a particular social group before addressing the question of persecution, is highly symbolic. It suggests that the judges looked for arguments to moti- vate their prejudicial view of the case. It is particularly striking to see how the analysis confuses the notion of persecution with that of a particular social group. Despite the fact that it is commonly recognized today, includ- ing in the Uk jurisprudence, that a particular social group cannot be defined exclusively by the persecution – although persecution may be a factor determining the visibility of the group42 – what judges in reality assess, is the gravity of ill-treatment. A very similar pattern is visible in the ZH case, where the issue of women in Iran constituting a particular social group is discussed in more detail.

39 The fact that she most probably will have to serve a prison sentence on return to Lebanon is recognized by the AIT. See EM case, AIT decision, above n. 21, para. 14.

40 For the mission statement, see, <http://www.freedomhouse.org/template.cfm?page=2>. Although it mentions women’s rights, it keeps them in its general framework, which is focused on freedom and democracy.

41 E.g., see, G. L. Munck and J. Verkuilen, ‘Conceptualizing and Measuring Democracy: Evaluating Alternative Indices’ (2002) 35 Comparative Political Studies 5-34, at 20-21 and 25-6 in particular.

42 For the UNhCR position, see generally, UNhCR, ‘Guidelines on International Protection No. 2: Membership of a Particular Social Group Within the Context of Article 1A(2) of the 1951 Conven- tion and/or its 1967 Protocol Relating to the Status of Refugees’, 7 May 2002, hCR/GIP/02/02, para. 2, 14, available at: <http://www.unhcr.org/refworld/docid/3d36f23f4.html>. For the Uk posi- tion, see, Shah and Islam, above n. 27.

62 Ekaterina Yahyaoui Krivenko

In the ZH case, the question of whether women in Iran constitute a particular social group was again at the centre of the analysis. The use of country of origin information was very weighted. Although sources mentioned are more numerous and diverse, judges emphasised parts of documents that supported their view of the situation (rejecting women in Iran as a particular social group) and passed over contrary information very briefly, without any substantial consideration.

The judges rejected the existence of a particular social group of women in Iran by comparing the situation of women in Iran to that of women in Pakistan. They emphasized the fact that the position of women in Iran is not so lowly,43 that they have educational and employment opportunities,44 and that some laws allowing women to divorce and seek state protection against domestic violence exist.45 The judges did not really evaluate or give due weight to numerous references in the country of origin documents regarding the difficulties faced by women. Thus, with regard to divorce, the judges affirmed: ‘It may be difficult to obtain, but the legislative provi- sion exist, they are not simply ignored by courts or made impractical for all to use. . .’.46 They seem to overlook the fundamental principle that because some members of the group are able to find protection, it does not mean that such a group does not exist.47 Finally, it is clear that what judges in reality assess, is the gravity and extent of ill-treatment, as well as the avail- ability of state protection.

Furthermore, the judges of the IAT often mentioned insufficiency of motivation provided by the Adjudicator who at first instance accepted the arguments of the applicant, including the issue of women in Iran consti- tuting a particular social group. however, the decision of the IAT itself could not be regarded as motivated, it instead appeared to be constructed in two parts (one containing quotations from the country of origin infor- mation documents, the other developed around the IAT’s own arguments and view) that do not bear any logical relationship with each other.

Contrasting with the attitude of the Uk authorities in these two cases is the detailed and nuanced, realistic approach in the two New Zealand cases selected for consideration. The documents that were used for evaluation of the country of origin information are quite different in nature. They include a variety of sources, ranging from more traditional, background

43 ZH case, above n. 26, para. 82. 44 Ibid., para. 74. 45 Ibid., paras. 91, 92. 46 Ibid., para. 92, emphasis added. 47 T. A. Aleinikoff, ‘Protected Characteristics and Social Perceptions: An Analysis of the Meaning

of “Membership of a Particular Social Group”’ in E. Feller, V. Türk, F. Nicholson (eds.), Refugee Protection in International Law: UNHCR’s Global Consultations on International Protection (Cambridge University Press, 2003), 263-311, at 288 and 274, with particular reference to the position of the Uk authorities in Shah.

63Muslim Women’s Claims to Refugee Status Within the Context of Child Custody Upon Divorce Under Islamic Law

documents, to newspaper articles and critical scholarly research.48 The decision, although in a very concentrated form, presents a detailed view of the situation of women in Iran. The issues of persecution and the availability of state protection is analyzed before consideration of the applicability of some of the Convention grounds.

The New Zealand authorities stress the centrality and depth of the state- sanctioned gender discrimination to the construction of the theocratic political regime in Iran.49 This is a very significant point, as it leads to the view that, among Convention grounds for persecution in this particular case, there are not only a particular social group of women, but also reli- gion and political opinion.50

Similarly, the recognition of women as a particular social group in Canadian cases occurs without any difficulty, with the emphasis being that the arbitrary differential treatment is imposed on claimants simply because they are women.51

Before coming to the analysis of other legal aspects of the cases, as a concluding remark on this issue it is important to understand that in determining the existence of a particular social group it is not necessary to evaluate the gravity of ill-treatment and even less for this treatment to amount to persecution. Whether courts adopt a ‘protected character- istics’ approach or a ‘social perception approach’ in determining the existence of a social group,52 it is difficult to find a country where women do not constitute a particular social group. For example, the issue of equal payment for work of equal value remains problematic in all countries, thus reflecting inadequate appreciation of the value of women’s work as compared to men’s. Obviously, the unequal treatment of women will not always amount to persecution. however, as minor and insignificant as the effects of the different treatment of women might appear, if this treatment is motivated exclusively by gender, women will constitute a particular social group. Moreover, from the doctrinal point of view, taking into account the specificity of gender as a characteristic, there is no reason to fear that other Convention grounds will become superfluous.

48 Consider, e.g., the references made in Appeal No. 71427/99, above n. 29, paras. 1-11 to A. E. Mayer, Islam and Human Rights: Traditions and Politics (3d ed. 1999); parts of M. Afkhami, E. Friedl (eds.), In the Eye of the Storm: Women in Post-Revolutionary Iran (Taurus, 1994); P. Paidar, Women and the Political Process in Twentieth-Century Iran (Cambridge University Press, 1995); as well as human Rights Watch and WLUML reports and other governmental documents.

49 Appeal No. 71427/99, above n. 29, para. 5-7. 50 Ibid. paras. 86-9. 51 See L. (H.X.) case, above n. 31, 7; and A.I.P. case, above n. 32, paras. 8-13. 52 For an overview of these approaches and their definition, see generally, Aleinikoff, above n. 47,

at 294-301. For the UNhCR position on the matter, see, Guidelines, above n. 42, paras 6 and 7 in particular.

64 Ekaterina Yahyaoui Krivenko

With regard to the particular case of women facing the arbitrary rule depriving them of the custody of their children, without any regard either to the interests of the child or to the maintenance of a meaningful relation- ship between mother and child, the conclusion is straightforward. Women do indeed constitute a particular social group because the arbitrary treat- ment they receive is for the reason of them being women. Moreover, it is important to consider other Convention grounds, because in states with theocratic patriarchal regimes, as in Iran, an attempt to escape this arbi- trary custody rule can also defy the political and religious regime in place and thus bring other Convention grounds, such as political opinion and religion, into play. If the very basis of the political regime in place is some form of patriarchy, for example, as in Iran or Saudi Arabia, not paying attention to women’s actions in the private sphere reinforces the regime in place and fails to recognize the significance and impact of these women’s behavior. Furthermore, refugee status determination authorities do not usually hesitate to describe some features of a legal system in a certain country as inadequate or discriminatory. Why then is it impossible to pass a judgment on a legal system that claims to be based on one or another religion, as suggested by Uk authorities? Women, by their behaviour, do contest this particular view of their religion. This was particularly clear in the Canadian case of a woman from Lebanon, who stated that, despite her being a faithful follower of Islam, she could not accept application to her and her child of this religiously motivated, arbitrary rule. There is no rea- son to deny the right of women to question and disregard the majoritarian male interpretation of Islam.

5.2 The agent of persecution and the standard of state protection The RSAA stressed an important difference in the approaches adopted by the Uk and the New Zealand authorities towards the question of the standard of state protection in cases where the agent of persecution is a non-state agent.

The Uk standard, as formulated in the Horvath v. Secretary of State for the Home Department case,53 requires only a reasonable willingness of the state of origin to operate a system of protection. The absence of a requirement of effectiveness of such a system of protection leads to the possibility ‘that an individual can be returned to his or her country of origin notwithstand- ing the fact that the person holds a well-founded fear of persecution for a Convention reason’,54 as was rightly pointed out by the RSAA. As always with regard to such abstract notions as ‘reasonableness’, we have to be aware of who measures this reasonableness and how. Is it reasonable to

53 Horvath case, above n. 19. 54 Refugee Appeal No. 71427/99, above n. 29, para. 62.

65Muslim Women’s Claims to Refugee Status Within the Context of Child Custody Upon Divorce Under Islamic Law

claim that a state shows reasonable willingness to provide protection if, for example, a battered woman has to have suffered a permanent injury, or has to be able to produce a medical report showing repeated injuries, in order to obtain a divorce?55 The judges in the ZH case implicitly give an affirmative answer.

If we consider the analysis made of the issue of the agent of persecution in the ZH case, in the light of the standard of the state protection as described above, the significance of the very restrictive attitude of Uk authorities becomes apparent. The issue of the agent of persecution is not discussed in the EM case at all. In the ZH case, the IAT judges made some comments on this subject, despite their refusal to recognize that women constitute a particular social group in Iran. When considering the availa- bility of state protection in cases of domestic violence, the decision makers adopted an attitude that seems inadequate from two points of view. First, they disaggregated the issues in considering the availability and the possi- bility of divorce, as a means to escape domestic violence, separately and independently from the issue of the granting of custody and guardianship upon divorce. Therefore, the decision makers ignored the important influ- ence that husbands can exercise over their wives through the powers granted to them with regard to their children. This remains true, even in the very improbable case of a mother authorized to take care of the child beyond the age limit. In all cases, Iranian courts will grant fathers very generous visitation rights and restrict the mother’s rights, limiting her free- dom of movement (and thus her ability to escape violence), as well as her right to remarry (and thus her ability to find protection from her former husband in a new relationship).56 Furthermore, by advising women to separate from their husbands without considering the issue of the custody of children, the Uk authorities made a choice for this woman, who, according to their logic, should be able to abandon her child, even to an indifferent father, in order to escape domestic violence. In doing so, deci- sion makers establish a hierarchy of values that they impose on women: escape from violence is more important than care for and relationship with children. They also disaggregated the experience of women, who, in such situations, have to face difficult dilemmas, sometimes preferring to remain married to violent husbands in order not to be separated from their chil- dren, as long as they consider it more appropriate for the well-being of their children. The authorities, by adopting such an attitude, disregarded the principle of the best interests of the child, which, as has been shown, is

55 Such is the situation in Iran, as reflected in the country of origin information quoted in the ZH case, above n. 26, paras. 41, 44.

56 These are the conditions imposed upon the appellant in one of the cases from New Zealand when she was permitted to take care of her child after the age limit. Appeal No. 71427/99, above n. 29, para. 26.

66 Ekaterina Yahyaoui Krivenko

closely linked to the refugee status claim of women. The consideration of country of origin information in this case was again very one-sided. The IAT selected statements which supported its own view of the situation, without explaining this preference or why the remaining evidence, which favored the appellant, was considered as non-relevant.57 This in turn placed an excessive burden on the appellant and her daughter, who were thus forced to return back to Iran and suffer persecution, merely to dem- onstrate the insufficiency of state protection.

5.3 The issue of persecution The current doctrinal and judicial view of the existence of persecution is closely linked with violation of an applicant’s basic human rights. The UNhCR handbook recognizes this link in the following terms:

a threat to life or freedom on account of race, religion, nationality, political opinion or membership of a particular social group is always persecution. Other serious violations of human rights – for the same reasons – would also constitute persecution.58

The introduction of this intimate relationship between the existence of persecution and the establishment of human rights violations as a formal criterion in refugee status determination is attributed to the works of James hathaway59 and his writings are often referred to by national refugee status determination authorities.60 Despite the positive impact hathaway’s analysis might have had on refugee protection, it had the negative impact of reinforcing the highly criticized division between civil and political rights, as opposed to economic, social and cultural rights.

57 See, e.g., the statement made by the IAT, ZH case, above n. 26, in para. 91, according to which the police are willing to intervene in cases of domestic violence, if the husband is an alcoholic or drug addict. Also see, the following statement on the availability of divorce (Ibid., para. 92), which is pre- sented as a logical consequence of the first, and compare them to the quotation from the document ‘Divorce in Iran’, para. 41, which states that ‘the husband’s drug addiction is not cause for divorce on the grounds of harm, unless it is shown that his consumption of opium has economically ruined him and made it impossible to support the family’. The IAT does not consider the economic situation of the family, but a family which is able to travel to Europe will certainly not be considered as economi- cally ruined by Iranian authorities.

58 UNhCR, ‘handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees’, hCR/IP/4/Eng/REV.1, (Reedited, Geneva, Jan. 1992), para. 51.

59 The main reference remains J. C. hathaway, The Law of Refugee Status (Butterworths, 1991). how- ever, his later works, which added some human rights standards, are equally important. See, e.g., J.C. hathaway, ‘The Relationship Between human Rights and Refugee Law: What Refugee Law Judges Can Contribute’ in The Realities of Refugee Determination on the Eve of a new Millennium: The Role of the Judiciary, Proceedings of the 1998 Conference of the International Association of Refugee Law Judges, Oct. 1998, 80-90.

60 For a detailed description of the influence exercised by his work, see generally, M. Foster, Interna- tional Refugee Law and Socio-Economic Rights: Refuge from Deprivation (Cambridge University Press, 2007), 27-33.

67Muslim Women’s Claims to Refugee Status Within the Context of Child Custody Upon Divorce Under Islamic Law

The central thesis of the approach proposed by hathaway, namely, that ‘refugee law ought to concern itself with actions which deny human dignity in a key way’,61 is not contested and, as such, deserves to be supported. however, his definition of the core of human dignity is closely linked to the distinction between derogable and non-derogable human rights, on the one hand, and between civil and political, as opposed to economic and social, rights. According to him, the standard of protection in the latter case is ‘less absolute’.62 This classification creates in the minds of decision makers a hierarchy of rights and values attached to them, reinforcing the much criticized public/private distinction in human rights law.63 It also creates an impression that civil and political rights are more important to the protection to the core of human dignity than economic and social rights. This, in turn, places an additional burden on many non-traditional claimants, including women. The Uk cases are a perfect illustration of this paradox. In both cases the authorities refused to recognize that the ill-treatment the women would receive upon return amounted to persecution. Although this statement is made only at the margins of the decisions, as already mentioned above, the analysis of women as a particular social group helps to understand the motivation behind this conclusion.

Firstly, it is necessary to recall the basis for the claims discussed: the desire to avoid applicability of a rule arbitrarily depriving mothers of the custody of their children upon the children reaching a certain age, or the mothers remarrying. Although the application of this rule should not be considered in isolation from the other factors of each case, it is necessary to give an assessment of it separately.

In the Uk cases, the fundamental question of custody is not seen as at all relevant to the issue of refugee status: ‘We do not accept that the differ- ent approach to the award of custody means that there is no relevant court protection’.64 In the ZH case, the IAT also states: ‘If the fear was that the child would be put into the father’s custody on divorce or separation, the Iranian custody laws are not so inhuman as to constitute a breach of Article 3 [of the EChR] – there is no assertion or evidence of child abuse’.65 This statement assumes, without any justification or motivation, that Iranian custody laws will take into account the principle of the best interests of the child. The motives of the IAT do not mention at all, and thus ignore the absence of a stable relationship between the child and the

61 hathaway, The Law of Refugee Status, above n. 59, 108. 62 Ibid., 111. 63 For an example of the analysis of this public/private distinction, see, e.g., C. Romany, ‘Women

as Aliens: A Feminist Critique of the Public/Private Distinction in International human Rights Law’ (1993) 6 Harvard Human Rights Journal 87-125.

64 ZH case, above n. 26, para. 94. 65 Ibid., para. 98.

68 Ekaterina Yahyaoui Krivenko

father, as well as the child’s fear of the father. In so doing, they disregard all the consequences for the child’s well-being, not only the imminent separa- tion from the mother, but also of the proximity to a drug and alcohol addicted father. At this point some would object, affirming that the claim to refugee status is presented only by the mother, the child making no separate claim in the ZH case. This argument would be additional evi- dence of the dismembering of the case, because it is simply impossible to fully apprehend and evaluate the mother’s claim without taking into account her child’s fate. The major preoccupation of the mother is not the separation from her child, as such, but the fact that this separation is arbi- trary and will impose on her child unbearable suffering, which the mother fully shares. She feels herself responsible for her child, despite Iranian law’s refusal of this responsibility of the mother. She cannot stand by and watch her child being subject to treatment that may lead to severe physical and psychological harm. A report by an NGO states, for example, that ‘often women do not initiate divorce until they feel their children are old enough to handle this traumatic change in care arrangements’.66 It is important to mention that the success of the EM case before the house of Lords can be attributed, to a very large extent, to the fact that the child was finally per- mitted to intervene in the proceedings. This gave the Lords an opportunity to more fully comprehend the situation in all its aspects, and to have a view of the case that is very close to the holistic approach advocated here.67

Uk authorities, when refusing an application for refugee status, do not consider the fact that the mother can never be fully responsible for her child, and remains always dependant on her husband, even if he is violent. We have to recall here again that, in the ZH case, the father is presumed to be an alcohol and drug addicted person, which formed a premise allowing judges to conclude that the claimant would be able to get a separation or divorce from her husband. The premise itself is very questionable, given the country of origin information quoted in the decision.68 In considering the non-existence of a breach of Article 3 EChR, they refer only to the absence of evidence relating to child abuse, but do not consider the situa- tion of the mother, her possible suffering and mistreatment. Nor do they seem to consider the possible mental health concerns for the child, if forced to remain with the father, whom the child fears, and if separated from the mother, who is the only person the child really depends on.

The consideration of rules relating to the granting of custody in Iran by the RSAA is in a sharp contrast to the previously discussed Uk cases. The

66 WLUML, above n. 7, 340. 67 See, e.g., the following statement by Lord hope of Craighead: ‘(T)he case for allowing the appel-

lant and her son to remain in this country on humanitarian grounds is compelling. This is particularly so when the effects on the child are taken into account’. EM case, hose of Lords, above n. 21, para. 18 (emphasis added).

68 See, information provided above, n. 57.

69Muslim Women’s Claims to Refugee Status Within the Context of Child Custody Upon Divorce Under Islamic Law

RSAA emphasizes the fundamental division between roles of men and women in relation to children. Men are legal guardians (decision makers) and women simply care givers, and only for a limited period of time which in Iran is fixed for boys as low as the age of two years. This distinction goes completely unmentioned by Uk authorities. The implication of this rule is that women, even if they are sometimes allowed to take care of their chil- dren, are entirely dependent on their former husbands, who always remain decision makers in relation to everything relating to the child. If a woman does not follow her former husband’s instructions, she can immediately lose her child.

The evaluation of the issue of persecution in relation to this custody rule in the Canadian A.I.P. case is very interesting. The decision concludes that ‘her [claimant] having to separate from her only son after the death of a husband is cruel and inhumane’.69 The general application of the rule of Iranian Civil Code on custody, which is almost identical to that applicable in Lebanon, is called a ‘Draconian measure’, violating prohibition of torture or cruel, inhuman or degrading treatment or punishment. 70 The decision expressly refers to this prohibition as formulated in Article 5 of the Universal Declaration of human Rights.71 What this suggests is a shift in framing the issue of custody from belonging exclusively to the social and economic sphere, to the civil and political domain. This shift is particularly justified if we consider the previously mentioned remark of New Zealand’s decision makers about the nature of the Iranian regime in place.

Both Canadian, as well as New Zealand’s, decisions in evaluating perse- cution and gravity of harm enumerate several human rights instruments. Thus, in the L.(H.X.) case, Canadian authorities mention the following provisions: Articles 7 (equality before law), 16 (equal rights in relation to marriage), and 25 (motherhood and childhood protection) of the Universal Declaration of human Rights; Article 15 (equality before the law) and 16 (discrimination in relation to marriage and family matters) of the Conven- tion on the Elimination of all Forms of Discrimination Against Women; Article 3 (best interests of the child principle), 9 (right of children not to be separated from their parents), and Article 12 (right to be heard of the child) of the CRC.72 Although Canada is a dualist country, as is the Uk, in con- sidering refugee status issues, it takes full account of international human rights obligations. In this case, when assessing the harm suffered by both claimants, the panel viewed it through the prism of commonly recognized international standards and thus emphasized the seriousness of discrimi- nation suffered by mothers, simply on the basis of their gender. In contrast,

69 A.I.P. case, above n. 32, para. 21. 70 Ibid., para. 13. 71 Ibid., para. 12. 72 L. (H.X.) case, above n. 31.

70 Ekaterina Yahyaoui Krivenko

the Uk authorities, although making no reference to international stand- ards, clearly demonstrate their framing of cases in terms of, less important to them, economic and social rights, relegating women’s experiences to the so-called private sphere, thus making women’s suffering less important and almost invisible.

6. Conclusions The above analysis of case law clearly demonstrates the negative impact of the disaggregation and fragmentation of a woman’s situation on the outcome of their refugee status claim. This approach, adopted in the Uk decisions considered above, essentializes and simplifies women’s experi- ences. Although gender related persecution is generally recognized as valid, for the purposes of refugee status determination, the kind of persecution which is ‘acceptable’, according to Uk authorities, is still too simplistic. It is still too far away from some notions central to feminist legal scholarship, developed precisely in order to bring more visibility to the specificity of some women’s experiences and situations: substantive equality, systemic discrimination, and intersectionality.

The Uk attitude appears even more troubling if considered in the light of cases from other jurisdictions, which are able to accommodate and integrate specificity of some women’s experiences. Moreover, this attitude of the Uk authorities, which tends to disaggregate women’s claims, essentializing only one aspect of their experience, also stands in contrast to the approach of the European Court of human Rights in one of its most recent judgments concerning states’ obligation to protect women from domestic violence.73 In the Opuz v. Turkey case, the applicant brought a complaint against the Turkish government for not protecting her and her mother from domestic violence. Despite the existence in Turkey of laws intended to protect victims of domestic violence, and despite the condemnation of the aggressor, the Court still found that Turkey failed to protect the applicant and her mother because these laws and condemnations, being inadequate and insufficient, did not have the necessary effect. From the legal point of view, the Court affirmed that the applicant’s rights, under Articles 2 (right to life), 3 (prohibition of torture and other cruel and inhuman or degrading punishment or treat- ment) and, most importantly, 14 (prohibition of discrimination), had been violated.

Legal theory might affirm that the law is a response to developments taking place in society, considering law as being always too late, after

73 Opuz v. Turkey, Application No. 33401/22, judgment of 9 June 2009, available at <http://www .unhcr.org/refworld/pdfid/4a2f84392.pdf>.

71Muslim Women’s Claims to Refugee Status Within the Context of Child Custody Upon Divorce Under Islamic Law

violence, after crime, which thus determines law’s nature.74 In terms of refugee law, refugee protection, and thus recognition of certain forms of persecution, comes only after the persecution, and lawyers have constantly to adapt their understanding of what it means to be persecuted to the multitude of forms that persecution can take. Unfortunately, this adapta- tion often takes too long and differs from one state to another, despite the Refugee Convention being a common denominator. however, more wor- rying is the fact that sometimes one has an impression that certain decision makers intentionally hinder the law’s development. As pointed out by Lord hope of Craighead in the EM case: ‘On a purely pragmatic basis the Con- tracting States cannot be expected to return aliens only to a country whose family law is compatible with the principle of non-discrimination assumed by the Convention’.75

74 See, e.g., this view of law in, Sigmund Freud, ‘Why War?’in James Strachey (ed.), The Standard Edition of the Complete Psychological Works of Sigmund Freud, Vol. 22 (London, 1985), 203-15 at 204-6, and its analysis by Costas Druzinas, The End of Human Rights (Oxford: hart Publishing, 2000), 298-300.

75 EM case, house of Lords, above n. 21, para. 15 (emphasis added).

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