Asylum couple were told to exhume baby and rebury him in Pakistan

Published on Thursday 25 March 2010 21:43

A COUPLE who feared they might have to exhume the body of their dead baby and rebury it in Pakistan have won a legal battle with immigration officials to stay in Scotland.

Rashid Ali and Shumalia Shezadi, of Glasgow, take great comfort from being able to attend regularly at the graveside of their son, Abdul Aziz, who died aged just four days.

They convinced an immigration judge that ordering their removal from the UK and being unable to pay their respects would be "unimaginably distressing and intolerable", and they were allowed to stay.

However, the Home Office had that judgment overturned, after arguing the couple could arrange for reinterment in their native Pakistan.

Now, three appeal judges in the Court of Session in Edinburgh have ruled that the original decision should stand. The court heard that Rashid Ali had arrived in the UK in 2000, and Shumalia Shezadi in 2004. They married and their boy was born in Glasgow on 26 November, 2004, but died four days later.

Both failed in applications for asylum, and then asked for leave to remain on human rights grounds. Again, they were unsuccessful, and Rashid Ali was served with a notice of his removal to Pakistan. He appealed, and won the case before Immigration Judge Quigley at the Asylum and Immigration Tribunal in Glasgow in 2008.

She said: "I accept the evidence of the appellant and his wife that they attend regularly at the graveside of their deceased son and that it is a source of great comfort to them that they are close to him. I accept completely that it would be greatly distressing to them if they were to be removed from the UK and, as a consequence, become unable to pay their respects to their deceased son.

"I have no hesitation in finding that such a situation would be unimaginably distressing and intolerable for most parents."

Judge Quigley added: "If the death of a newborn child, taken along with the other circumstances in the appellant's case, is not considered sufficiently compelling to merit a grant of leave, then it does seem to me that a careful study and assessment of the various circumstances has not been carried out."

Those circumstances included the fact that Shumalia Shezadi had suffered two miscarriages since her son's death, and was being tested so doctors could establish any medical reason. The couple said similar treatment would not be available in Pakistan.

Also, the couple had "put down roots" in Glasgow and provided numerous letters of support from friends.

The Home Office challenged Judge Quigley's decision, and Designated Immigration Judge Macleman held that she had made a number of errors and that the case should be reconsidered.

One of the mistakes, it was held, related to the deceased child, and Judge Macleman said: "(Judge Quigley] goes too far in respect of the death of the appellant's child, no matter how unfortunate that circumstance may be. She has erred by failing to take into account the real possibility that the appellant could arrange for reinterment in Pakistan."

At the rehearing, Rashid Ali's appeal was dismissed. He took the case to the Court of Session, arguing that there should not have been a rehearing and that Judge Quigley's decision should have stood.

Lord Reed, sitting with Lord Mackay and Lady Smith, said: "We note that the possibility of the exhumation of the remains of the appellant's child and their reinterment in Pakistan was not raised at the hearing before Judge Quigley.

"She could not have raised the matter herself to any useful purpose in the absence of any evidence as to the practicality of such measures. She did not, therefore, err by failing to take that possibility into account."

The appeal judges also found Judge Macleman had been wrong to find fault in other aspects of the original decision, and that he himself was in error in ordering a fresh hearing. "He should have ordered that the original determination of the appeal should stand," added Lord Reed.

The couple were not available for comment yesterday.