Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/09221/2015

THE IMMIGRATION ACTS

Heard at Newport (Columbus House)
Decision & Reasons Promulgated
On 8 November 2016
On 16 November 2016

Before

UPPER TRIBUNAL JUDGE GRUBB
DEPUTY UPPER TRIBUNAL ARFON-JONES DL

Between

a a l
(ANONYMITY DIRECTION made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr A Adebayo of A2 Solicitors
For the Respondent: Mr I Richards, Senior Home Office Presenting Officer

DECISION AND REASONS
1. Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698) we make an anonymity order as the appellant claims to be a refugee. Unless the Upper Tribunal or Court directs otherwise, no report of these proceedings shall directly or indirectly identify the appellant. This direction applies to both the appellant and to the respondent and a failure to comply with this direction could lead to Contempt of Court proceedings.
Introduction
2. The appellant is a national of Kuwait born on 1 January 1965. He arrived in the United Kingdom on 8 December 2014 and claimed asylum. The basis of his claim is that he is an undocumented Bidoon and, as a result, there is a real risk of persecution on return to Kuwait.
3. On 5 June 2015, the Secretary of State refused the appellant's claim for asylum, humanitarian protection and on human rights grounds under Arts 2, 3 and 8 of the ECHR. Whilst the Secretary of State accepted that the appellant was from Kuwait, she did not accept that he was an undocumented Bidoon. On 5 June 2015, the Secretary of State also made a decision to remove the appellant to Kuwait by way of directions under s.10 of the Immigration and Asylum Acts 1999.
The Appeal to the First-tier Tribunal
4. The appellant appealed to the First-tier Tribunal principally on the basis that he was an undocumented Bidoon and that applying the country guidance decision in NM (documented/undocumented Bidoon: risk) Kuwait CG [2013] UKUT 00356 (IAC) he was at real risk of persecution and entitled to asylum.
5. In a decision promulgated on 22 April 2016, Judge Page dismissed the appellant's appeal on all grounds. In particular, he made an adverse credibility finding against the appellant and, although he accepted that the appellant may be a Bidoon, he did not accept that the appellant was an undocumented Bidoon and consequently at risk on return to Kuwait.
The Appeal to the Upper Tribunal
6. The appellant sought permission to appeal to the Upper Tribunal on a number of grounds challenging the judge's adverse credibility finding that the appellant had not established that he was an undocumented Bidoon.
7. On 25 May 2016, the First-tier Tribunal (Judge Shimmin) granted the appellant permission to appeal on what, he summarised, as four of the points raised in the appellant's grounds.
8. Thus, the appeal came before us.
The Judge's Determination
9. Before Judge Page, the appellant relied upon the evidence of two witnesses, "B" and "F" both of whom had been granted refugee status in the UK as undocumented Bidoons. The appellant also relied upon a letter from the Kuwaiti Community Association ("KCA") dated 27 March 2016 in support of his claim that he is an undocumented Bidoon.
10. Both B and F had told the KCA that the appellant was an undocumented Bidoon and gave evidence to that effect before Judge Page.
11. Judge Page did not accept that the letter from the KCA assisted the appellant's claim as it did not expressly state that the appellant was an undocumented Bidoon and was, in effect, based upon the assessment of B and F (see paras 20-24).
12. Although the appellant sought to challenge the judge's conclusion that the KCA letter did not assist the appellant, permission to appeal was refused on that ground and was not pursued before us by Mr Adebayo, who represented the appellant. We, therefore, say no more about it.
13. The substance of Judge Page's reasons for finding the appellant and B and F not to be credible witnesses is found at paras 25-38 of his determination. In essence, he rejected the appellant's claim to be an undocumented Bidoon - and therefore someone who would not have been educated and was illiterate and innumerate - on the basis that:
(1) It was not believable that the appellant could have made a journey from Cardiff to London in order to visit the KCA, buying tickets etc, when he could not read or write;
(2) It was not believable that if the appellant was an undocumented Bidoon and illiterate that he (and indeed F and B) could have signed their witness statements in legible handwriting;
(3) It was not believable that the appellant and F could have been taken by B, when the appellant and F arrived in London, to Harrow to the KCA if B was also someone who could not read and write as an undocumented Bidoon;
(4) It was not believable that the appellant could use a mobile telephone if he was not numerate;
(5) It was not believable that the appellant could have left Kuwait using a false passport (rather than a genuine one) without being detected; and
(6) It was not believable that the appellant could have raised the funds to pay for, as he claimed, both himself and an agent to fly from Kuwait to the UK.
14. In his grounds, the appellant sought to challenge the judge's reasoning in respect of points (1)-(6). In fact, the First-tier Tribunal only granted him permission in relation to the substance of points (1)-(5).
Discussion
15. Mr Adebayo relied upon the grounds seeking to challenge the judge's reasoning as set out in (1)-(5).
16. First, Mr Adebayo submitted that the judge had failed to take into account all the evidence in relation to the appellant and B and F in concluding that it was implausible that first, the appellant and F could travel from Cardiff to London and subsequently that B could assist them to travel from London to Harrow to the KCA if they were unable to read and write.
17. Mr Adebayo referred us to his record of the evidence given before Judge Page. In addition, Mr Richards assisted by referring us to the Presenting Officer's record of evidence. We consulted Judge Page's record of evidence but it was difficult, and at times impossible, to read. It was, however, not inconsistent with anything to which we were referred by either Mr Adebayo or Mr Richards. Indeed, the evidence to which we were referred was accepted by both representatives.
18. In that evidence, Mr Adebayo submitted that the appellant had said that B did not read or write but he was studying now. In response to being asked how he had known which bus to take from Cardiff to London, the appellant had said that he was studying and had been studying for two years. He had also said that we (that is the appellant and F) asked and that he knew some letters in English. B in his evidence when asked whether he could read or write had said "not strong".
19. In relation to the signatures upon the statements of the appellant, F and B, Mr Adebayo submitted that the judge had not taken into account their respective evidence. There was evidence from the appellant in his screening interview at question 3 of the continuation sheet that he could read his name and his father's name. Further, F in his oral evidence had said that he had been going to school for a year and although he could not read his statement someone had read it to him. B when asked the same question had said that it was just a statement and that he learned how to do it in the Mosque.
20. Mr Adebayo submitted that Judge Page had failed to take this evidence into account to explain firstly how the appellant and F had been able to travel from Cardiff to London and then, together with B, to Harrow and secondly how they had been able to sign their statements.
21. Secondly, Mr Adebayo submitted that Judge Page had not been entitled to conclude (at para 33) that the appellant would be unable to use his mobile telephone unless he was numerate given the appellant's evidence that he was able to identify telephone numbers of individuals by photographs on his telephone.
22. Mr Richards, on behalf of the Secretary of State acknowledged that he had misgivings about the judge's findings based upon the implausibility of the appellant travelling to London and then to Harrow and also that he would be unable to use his telephone. He acknowledged that there were flaws in the reasoning but submitted that any error was not material. We will return to that latter point shortly.
23. In our judgment, Judge Page's reasoning is inadequate and his decision is legally flawed. First, he failed to take into account the evidence of the appellant, B and F that they had acquired some language facility and, in fact, sought help that explained how they were able to travel (in the case of the appellant and F) from Cardiff to London and (in the case of all three individuals) from London to Harrow.
24. Likewise, there was evidence consistent with F and B (and indeed the appellant) being able to carry out the relatively uncomplicated act of signing their witness statements. The context was, of course, that F and B had already been accepted by the Home Office to be undocumented Bidoons.
25. The points raised by the judge as to the implausibility of the three individuals as undocumented Bidoons (and therefore uneducated and illiterate) having the ability to travel successfully from Cardiff to Harrow via London was not a point raised by the Secretary of State in the refusal letter. It appears to us only to have become an issue at the hearing. Whilst that does not in itself raise any concerns, it did require the judge to provide each of the witnesses (the appellant, F and B) a full opportunity as a matter of fairness to deal with the points which were being raised either by the Presenting Officer or the judge. At para 29, the judge himself recognises that B was not asked directly at the hearing how it was he could have taken the appellant and F from London to Harrow. The questions were, so far as we are able to tell from the evidence to which we were referred by the representatives, directed to the underlying question of whether B was able to read and write. As we have already noted, B's evidence was not that he could not read or write but rather that it was "not strong". The judge makes no reference to that and, in addition, it raises further concerns that B was not directly confronted with what became a crucial issue for the judge at the hearing, namely his ability to assist F and the appellant to travel to Harrow.
26. Secondly, in our judgment, it was not properly open to the judge to conclude at para 33 that the appellant could only use a mobile telephone if he was numerate given his evidence that he only made telephone calls to people as a result of their photographs being on his telephone and allowing him to identify them. That is a plausible explanation of his use of the telephone and the judge was not entitled out of hand simply to ignore that explanation and conclude there was no way that the appellant could use the telephone unless he was numerate.
27. Consequently, we have concluded that the appellant has succeeded in establishing errors in relation to the judge's decision as set out in (1)-(5) set out above in our paragraph 13
28. Mr Richards submitted that those flaws were not material. In particular, Mr Richards relied upon paras 35 and 36 of the judge's determination in which he rejected the appellant's account that he had come to the UK with an agent using false passports because the judge did not accept that the airfares for two individuals could have been collected, as the appellant claimed by donation at the appellant's Mosque. That, as we have already noted, was a finding challenged by the appellant in his grounds of appeal but permission was not granted in respect of it.
29. In assessing whether the errors we have identified are material, we must consider the judge's reasoning as a whole and assess whether in the absence of the errors we have identified the judge would have reached the same conclusion.
30. In our judgment, we are not so satisfied. It is clear to us that the judge's reasoning in paras 24-34 which led him to find both the appellant and his two witnesses not to be credible was a central part of his reasoning leading to his dismissal of the appellant's appeal. Prior to even considering the appellant's account of how he travelled to the UK with the aid of an agent, the judge stated his adverse conclusion at para 32 that "the appellant could not possibly be an undocumented Bidoon" and at para 34 that the "only sensible conclusion" was that the appellant is educated which was, of course, the antithesis of his being an undocumented Bidoon.
31. Consequently, we cannot be confident that the judge's adverse finding would have been the same if he had not fallen into error in his assessment of the evidence of the appellant and his two witnesses at paras 25-34 of his determination.
32. We would also add that we have some concerns in respect of the judge's reasoning in para 38 that it was, in effect, impossible for the appellant to leave Kuwait on a false passport and that, therefore, he cannot be an undocumented Bidoon. The judge relies upon what is said by the Secretary of State at para 41 of the refusal letter which, in turn, relies on a single source published on 22 March 2011 that states that from April 2011 fingerprinting processes would be put in place at the airport which would detect, for example, those seeking to leave on fake passports. The source appears to be two news items on the internet. The judge's conclusion, based upon this evidence, would of course mean that no undocumented Bidoon could leave Kuwait by aeroplane. Only if they had a valid passport, which would be inconsistent with their being an undocumented Bidoon, could an individual leave Kuwait through the airport. The judge's conclusion is a very strong one to draw on the basis of news reports from 2011. Whilst we have some (not unsubstantial) doubts whether that report can bear the weight of the judge's conclusion, it is not necessary for us to reach a concluded view because, for the reasons we have given above, the nature of the judge's errors in assessing the evidence of the appellant and his two witnesses which led to his adverse credibility findings in respect of all three were material in any event.
Decision
33. Thus, the decision of the First-tier Tribunal to dismiss the appellant's appeal on asylum and human rights grounds involved the making of an error of law. That decision cannot stand and we set it aside.
34. Given the nature and extent of the fact finding required in remaking the decision, as none of the judge's findings can be preserved, applying para 7.2 of the Senior President's Practice Statement the proper disposal of this appeal is that it be remitted to the First-tier Tribunal for a de novo rehearing before a judge other than Judge Page.

Signed

A Grubb
Judge of the Upper Tribunal

Date