Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/01243/2015

THE IMMIGRATION ACTS

Heard at Newport (Columbus House)
Decision & Reasons Promulgated
On 27th February 2017
On 13th April 2017

Before

UPPER TRIBUNAL JUDGE GRUBB
DEPUTY UPPER TRIBUNAL JUDGE DAVIDGE

Between

A A E E
(anonymity direction MADE)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr A Adebayo of A Z Solicitors
For the Respondent: Mr M Diwnycz, Senior Home Office Presenting Officer

DECISION AND REASONS
Direction Regarding Anonymity – Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008
The First-tier Tribunal Judge made an anonymity direction. We were not asked to vary it and it, therefore, still applies.

1. The Appellant complains that when First-tier Tribunal Judge Sweeney dismissed his appeal against the refusal of his asylum claim, in a determination promulgated on 11th June 2015, he erred in law in concluding that he had not established to the relevant low standard that he is an undocumented Bidoon from Kuwait.
2. Permission to appeal was granted by Deputy Upper Tribunal Judge Chapman on renewal to the Upper Tribunal. Judge Chapman granted permission in the following terms:
“3. The weight to be attached to the evidence is a matter for the First Tier Tribunal Judge and it is clear that he considered the evidence of the Appellant and did not find aspects of that evidence to be credible due to inconsistencies. However, I consider that there is merit in paragraphs 8 and 14 of the grounds of appeal viz that the First Tier Tribunal Judge erred in the manner in which he assessed the Appellant’s nationality, given the evidence of a language report and two witnesses and the manner in which he assessed the evidence of those witnesses. For these reasons, it is arguable that the First Tier Tribunal Judge erred materially in law and permission to appeal is granted in respect of those grounds of appeal.”
3. Grounds 8 and 14 of the application for permission are as follows:
“8. The Judge misdirected himself when he did not make any specific findings on the facts before him which he ought to do as the Adjudicator in the matter given that these issues go to the core of the matter. This is a fundamental error of law. The issues which he failed to adjudge are as follows:
i. the Judge at paragraph 51 states that the Applicant is not a Kuwaiti nationality but failed to make a finding on the nationality he believes he is. The Judge made this finding inspite of all the positive evidence in the Applicant’s favour before him about the Applicant being a Kuwaiti bidoon
a) The language analysis report which confirms that the Applicant speaks Kuwaiti Arabic to a native level. The report did not observe/note that the Applicant spoke some words similar to Iraqi Arabic accent which would have been the case if the Applicant had indeed relocated to Iraq in the 1990s as suggested by the Respondent.
b) The Applicant was able to answer questions during his asylum interview about Kuwait which he would not have known if he was an Iraqi national.
c) 2 Kuwait bidoon refugees, one of whom was granted refugee status after an Immigration Tribunal hearing confirmed in their uncontroverted oral evidence that the Applicant is an undocumented Kuwaiti bidoon and that they last saw him in Kuwait in 2006 and 2009 respectively.
ii. the Judge at paragraph 61 states that it is not possible to conclude that the Applicant is an Iraqi national. The Applicant accepts that the Judge is right on this finding.
iii. the Judge at paragraph 63 did not conclude, having physically observed the Applicant at the hearing; what age the Applicant looked like either 70 or 41 years old. Even if there was no age assessment because the Applicant’s solicitors took the view that this was unnecessary expense given the Applicant’s frail and all grey hair appearance, the Judge ought to have at least made a finding that the Applicant looked more like a particular age. This was not done and this is a fundamental error.
iv. The Judge erred at paragraphs 68 and 69 when he stated that the Applicant is not a Kuwaiti national and he is not an undocumented bidoon. The Judge failed to state what nationality he believes the Applicant is; in light of the evidence before him.”
“14. The Judge misdirected himself at paragraph 137 – 150 by not giving any weight to the evidence of the Applicant’s supporting witnesses inspite of the fact that they gave consistent accounts.
i. The Respondent’s representative accepted at the hearing that their accounts are consistent but submitted that this does not mean that they are true. She suggested that they could have rehearsed the evidence.
ii. The Judge in his findings accepted that their evidence was consistent and accepted the Respondent’s submission that the evidence was rehearsed. This confirms the Applicant’s contention that the Judge was prepared to accept the position of the Respondent.
iii. There was no evidence before the Judge for him to reach the conclusion that their evidence was rehearsed and his finding is flawed.
iv. The Judge over amplified the minor inconsistencies in the Applicant’s account and he was prepared to explain away the consistent evidence in the Applicant’s favour. The Judge’s assessments of the issues before him are flawed and irrational.
v. The Applicant contends that the Judge’s decision is unbalanced, deeply flawed and it is necessary; in the interest of justice and fair play for the decision to be overturned.”
4. It is apparent reading the permission and the grounds together that Judge Chapman found no merit in the challenges to the judge’s adverse credibility findings concerning the detail of the Appellant’s claimed history of suffering persecutory treatment in Kuwait as a result of his claimed undocumented Bidoon status, nor to the complaint that the judge should have made a decision as to whether or not the Appellant was in fact an Iraqi national, as claimed by the Respondent on the basis of his use of an Iraqi passport, nor of the claim that he was entitled to a positive decision that he was not an Iraqi national given that his appearance belied the date of birth (which would have made him 41 years old) on the Iraqi passport as did his own evidence that he had married at a date which, again when compared to the date of birth on the Iraqi passport, would have made him only 6 years old at the time.
5. The grant of permission is plainly limited to the import of the language analysis and the treatment of the two witnesses.
6. Following the grant of permission dated 9th September 2015 the Respondent filed a reply on 4th November 2015 in which she averred that the judge had correctly self-directed, made properly reasoned and sufficient findings concerning the assessment of the Appellant’s nationality and the treatment of the witness’s evidence.
The Hearing before the Upper Tribunal
7. There was no application to adduce further evidence.
8. Mr Adebayo made expansive submissions which, in summary, argued that standing back and looking at the evidence in the round the judge had reached a conclusion which was not available to him. The reality was that the evidence showed that the Appellant was from Kuwait as demonstrated by the language analysis which confirmed that the applicant speaks Kuwaiti Arabic to a native level, there was no possibility that he was an Iraqi national given that there was no evidence that he spoke Arabic with an Iraqi accent, the Iraqi passport was self-evidently false given the information contained within it in respect of the Appellant’s date of birth being contradictory to his appearance and his claimed date of marriage. The fact that the passport was false corroborated the Appellant’s account to be an undocumented Bidoon from Kuwait because if he was a Kuwaiti citizen there would have been no need for him to obtain such a passport, he could simply have applied for a Kuwaiti passport. Turning to the evidence of the witnesses Mr Adebayo argued that the fact that the Appellant had brought two friends to the Tribunal, both of whom had established in appeal proceedings that they themselves were undocumented Bidoons from Kuwait, ought to have been determinative of the case in favour of the Appellant. There was no real inconsistency revealed in the parts of their evidence set out in the judge’s decision.
9. Mr Diwnycz relied on the rule 24 response emphasising the difficulties with the witness evidence to the point that the judge’s conclusion that it had been rehearsed was a fair inference. He pointed out that the language report, whilst concluding that the Appellant spoke Kuwaiti Arabic to a native facility, which is consistent with the Appellant being an undocumented Bidoon, it was not determinative. It could not be wrong to say that it was also consistent with the Appellant being a Kuwaiti citizen or even simply having spent a considerable period of time in Kuwait.
10. In response Mr Adebayo sought to argue that even if not determinative the language report afforded no succour to the Respondent’s case that the Appellant was Iraqi as per the passport, or that he had spent time in Iraq, because if that was true it can be assumed he would have developed an Iraqi accent.
11. At the conclusion of the hearing we reserved our decision.
Discussion
12. We begin by reminding the parties that there is no obligation on the judge to reach a conclusion as to the Appellant’s nationality. The burden is on the Appellant to establish his case, i.e. that he is an undocumented Biddoon from Kuwait.
13. A positive finding in respect of a different nationality would have required a sufficiency of evidence to reach a conclusion on the balance of probabilities. The judge found self-evident difficulties with the Appellant’s account as to how he came to possess an Iraqi passport with a valid US visa. The judge was entitled to find his account: that he had used a false Iraqi passport to obtain a valid US visa without any understanding that he had ever made such an application, or that when he attended the US Embassy in furtherance of the same that he had any understanding of where he was, or what he was doing, everything having been set up by his agent, to be a fabrication. Although the judge noted that the US authorities had accepted the validity of the passport, the judge did not find that sufficient to establish the Respondent’s claim that the Appellant was in fact Iraqi. The suggestion in the grounds that the judge simply adopted the Respondent’s case is plainly not right.
14. Nor is there any merit to Mr Adebayo’s argument that the Appellant was entitled to positive findings that he was the age he claimed i.e. 70 years old, as opposed to 41 years old as described on the Iraqi passport, because of his appearance and because of his assertion that he had married on a date which would have meant, on the date of birth in the Iraqi passport that he was only six.
15. Judge Sweeney fully explained why the evidence was insufficient to make a positive finding in respect of a nationality which was not asserted by the Appellant, and beyond deciding if he was, as he claimed, an undocumented Biddoon, nothing further was required.
16. We find no merit in the submission that the judge’s consideration of the language report, which concluded that the Appellant’s linguistic background was Kuwait because he spoke Arabic with a native facility, was flawed. In the context of deciding if the Respondent had established that the Appellant was Iraqi the judge plainly took it into account and accorded it weight, contrary to the Respondent’s argument. Whilst the Judge found that it did not establish the Appellant was an undocumented Biddoon nor did he find that it established the Appellant was a Kuwaiti citizen. Rather the Judge took the approach that it showed he had spent a considerable period of time in Kuwait but was not determinative of nationality. That was an approach which was properly open to him.
17. Mr Adebayo’s contention that the passport should have been found to be false, which in turn would have added weight to the Appellant’s claim to be an undocumented Bidoon in light of the ability of Kuwaiti nationals to obtain their own national passport, exceeds the grounds upon which permission was granted, and is in any event flawed. The Appellant has not brought forward any determinative evidence as to his age or asserted marriage, and given that people use false documents for all sorts of reasons known only to themselves, the possession of the false Iraqi passport does not add weight to the claim that the Appellant is an undocumented Bidoon.
18. We turn to the challenge based on the First-tier Tribunal Judge’s treatment of the witness evidence. The Appellant brought forward two witnesses, both of whom had been found on appeal to be undocumented Bidoons. The Appellant did not set out in his own witness statement how he knew his witnesses, but was cross-examined on the issue.
19. Mr Adebayo’s assertion that the oral evidence that the Appellant was an undocumented Bidoon should be determinative is flawed in several regards. Firstly, their evidence amounts to little more than bare assertions that because they themselves were undocumented Bidoons, and the Appellant lived in their locality, and was known to them and family members of the second witness, and because he sold vegetables on the street, which they assert a Kuwaiti national would not do and which is an occupation which it is recognised many Bidoons do have, he was an undocumented Bidoon. On its face it is overstating the position to say that the witness evidence, even if the judge believed that the witnesses believed he was an undocumented Biddoon, is sufficient to establish the matter to even the low standard.
20. For example, neither provide any detail of whether or how they had any specific knowledge of the detail of the Appellant’s documentary status, a glaring omission in the context of the country guidance information as to the ability for Bidoons to become registered.
21. Mr Adebayo’s criticism of the judge’s treatment of the evidence is that the judge was contradictory in saying on the one hand that their evidence was consistent, but on the other, that it was rehearsed. He asserts that the judge accepted without question or proper examination, the submission of rehearsal of the Respondent.
22. The judge dealt with the position of the witnesses as follows:
“137. I have also considered the witness evidence of Mr A T who recounted that he was a friend of the appellant’s. They knew each other in the desert and in Sulebiya where they both sold vegetables together for several years. They last saw each other in 2009. Mr A T confirmed the appellant was an undocumented bidoon.
138. I did not find Mr A T to be a credible witness. Having seen and heard him give evidence, he did not impress me as an honest and truthful witness. His evidence gave me the impression of being rehearsed.
139. Despite advising that he had known the appellant for several years and they were friends, he said they had never been to each other’s houses, never met each other’s families and Mr A T did not know where the appellant’s house was. They did not keep in contact when Mr A T went to the UK.
140. Were there, as Mr A T contended, a friendship between the parties over a significant period of time, one would reasonably expect, in my judgement, at least occasional visits to each other’s houses and knowledge of each other’s families. The absence of such knowledge causes me to doubt Mr A T’s account.
141. My doubts were reinforced by both Mr A T and the appellant advising that they met socially at events such as weddings and funerals, but neither were able to advise as to the last social occasion they had gone to together. Indeed, despite my asking the appellant three times to identify the event, he consistently evaded the question and failed to provide an answer.
142. During the course of his evidence, when asked where he met the appellant, Mr A T first said that he used to go to Mr A S’s all the time and Mr A T saw the appellant there. However, he then said that Mr A S had never been to Mr A T’s house in Kuwait nor Mr A T to Mr A S’s home. Rather, they used to play football together.
143. Accordingly, despite the elements of consistency between the appellant and Mr T’s account, I did not accept Mr A T’s evidence. I am satisfied that such consistency was due to a story being agreed between the appellant and Mr T.
144. As to Mr A S, his account, in my judgement, similarly gave the appearance of being rehearsed. He claimed that the appellant was his father’s friend and he saw him regularly when he was in Kuwait. The appellant visited his father almost every Friday. Mr A S had last seen the appellant in Kuwait in 2006.
145. Mr A S confirmed the appellant was an undocumented bidoon selling vegetables ‘which most of us bidoons do to make ends meet’. He confirmed the appellant was an undocumented bidoon from Kuwait.
146. However, when I asked Mr A S what he did for a living in Kuwait, he said, contrary to paragraph 4 of his witness statement, that he bought and sold sheep. When I invited him to explain this discrepancy between his account in oral evidence and his witness statement, he was unable to offer any explanation.
147. In his oral evidence, the appellant initially said that he had never met Mr A S’s family, then he said that he knew his elder children, and then that he knew his brothers not his children and then subsequently recited Mr A S’s sisters.
148. At first, the appellant said that Mr A S never came to the appellant’s house in Kuwait, and then said he went only once or twice. And then two or three times.
149. The strong impression given by the appellant was that he was trying to recollect a story that had been agreed between him and Mr A S and ensure he ‘got it right’.
150. Accordingly, I similarly did not accept Mr A S’s account. In doing so, I again bore in mind the consistency between the appellant and Mr A S’s account. Again, I am satisfied that such consistency was due to a story being agreed between the appellant and Mr A S.”
23. Standing back and looking at the judge’s conclusions based on the witnesses oral evidence and short witness statements in the round we note the following:
(a) In respect of Mr AT the judge found that the claimed character and length of friendship was undermined by the limited contact [139] to [140] and the inability to provide any detail of their social meetings at family/community events.
(b) The first witness Mr A T stated that in the context of his friendship with Mr A S he was often at Mr A S’s house and saw the Appellant there on many occasions. That evidence changed under cross-examination. Mr AT said he did not visit Mr A S’s home at all, but rather that he knew him from playing football with him. His evidence was not consistent.
(c) The second witness’s evidence did not agree with that of the first, Mr A S saying that the Appellant was not his friend but his father’s, and that he knew him only in the context of his friendship with his father, having met him at his father’s house.
(d) The matter was further undermined by the Appellant’s own evidence which was evasive [141] and contradictory [147] and [148] with regard to the second witness.
24. Standing back and looking at the evidence of the three witnesses together there was a lack of coherence and internal inconsistencies which entitled the judge to find that the evidence of the witnesses carried little weight, and sufficient to make out the judge’s conclusion that the evidence appeared rehearsed.
25. For all the reasons set out above we have concluded that the First-tier Tribunal has made sufficient findings, reached conclusions which were open to it on the evidence, and provided adequate reasoning in the decision to enable the Appellant to understand why he has failed to establish even to the low standard that he is an undocumented Bidoon from Kuwait.
26. It follows that we find that the First-tier Tribunal decision is not vitiated by error requiring it to be set aside, and it stands.

Notice of Decision
27. The Appellant’s appeal is dismissed.

Direction Regarding Anonymity – Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008

Anonymity having previously been ordered in the First-tier Tribunal and there being no application to remove the order, I see no reason to do so and the order remains in place. Unless and until a Tribunal or court directs otherwise, the Appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of their family. This direction applies both to the Appellant and to the Respondent. Failure to comply with this direction could lead to contempt of court proceedings.

Signed Date 28th February 2017

Deputy Upper Tribunal Judge Davidge

TO THE RESPONDENT
FEE AWARD

No fee is paid or payable and therefore there can be no fee award.

Signed Date

Deputy Upper Tribunal Judge Davidge