Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/10365/2015

THE IMMIGRATION ACTS

Heard at: Liverpool
Decision & Reasons Promulgated
On: 31st January 2017
On: 28th March 2017

Before

UPPER TRIBUNAL JUDGE BRUCE

Between

Talal Farhan Alshamari
(no anonymity direction made)
Appellant
And

Secretary of State for the Home Department
Respondent

For the Appellant: Mr Sadiq, Adam Solicitors
For the Respondent: Mr McVeety, Senior Home Office Presenting Officer

DECISION AND REASONS
1. The Appellant is a national of Kuwait date of birth 13th July 1986. He appeals with permission1 the decision of the First-tier Tribunal (Judge McGinty) to dismiss his protection appeal.
2. The matter in issue before Judge McGinty was whether the Appellant is an ‘undocumented bidoon’ and so entitled to international protection in accordance with the decision of the Upper Tribunal in NM (documented/undocumented Bidoon: risk) Kuwait CG [2013] UKUT 00356 (IAC).
3. The First-tier Tribunal found as follows:
(a) That the Appellant is from Kuwait (this was accepted by the Respondent) [at paragraph 12]
(b) The Appellant’s evidence that he had been issued with a birth certificate was not inconsistent with his claim to be an undocumented Bidoon, given the country background evidence that this community had been recognised as Kuwaiti nationals prior to the country’s liberation in 1991 [at 14]
(c) Similarly his claim that his mother gave birth to him in a government hospital did not undermine his case [at 15]
(d) If the Appellant had a ‘security card’, also known as a ‘green card’, he would be classed as a documented Bidoon and therefore not at risk of discriminatory denial of citizenship rights amounting to persecution [at 16]
(e) His evidence about whether or not he had such a card was not satisfactory. The evidence was inconsistent and overall the Tribunal was not satisfied that the Appellant had discharged the burden of proof.
4. The subject of the Appellant’s challenge is the conclusion reached at (e). It is therefore necessary to examine in greater detail the Tribunal’s reasoning on this point.
5. The Appellant had initially stated that he had been in possession of a card, but that he had obtained it illegally. It had been issued by the Bidoon Issues Committee but he was not entitled to such a card. It had been obtained for the Appellant by a friend of a friend. He had used it for approximately 4-5 years, avoiding any trouble with the police as a result, but then his mother had ripped it up, fearing it would cause him to be arrested. When questioned as to how the police had been fooled by the card the Appellant changed his evidence to say that this card was not the same as the ‘green card’ issued to documented Bidoon. It was the type that was issued to undocumented Bidoons. It was put to the Appellant that this made no sense: if he had gone to the trouble of obtaining a card to which he was not entitled, why didn’t he get one which would have permitted him to work unhindered? In response the Appellant diverged from his earlier evidence that the document had been issued by the Bidoon Issues Committee and stated that his friend had forged it for him [at 17]. The Appellant then volunteered that the card had only been ‘valid’ for 6 months. He had never renewed it and had only ever held that card. The police arrested and detained him for a short period but never really scrutinised the card.
6. All of this led Judge McGinty to give the following reasons for rejecting the Appellant’s evidence:
i) The evidence was inconsistent. The Appellant had said that he had obtained the card through official channels with the help of contacts and later changed his evidence to say that the card had been forged;
ii) The evidence did not make any sense. If the Appellant had obtained a fake card to enable him to work it was unclear why he would get one that identified him as an undocumented Bidoon that was only valid for 6 months. It was unlikely that a card such as that described by the Appellant would in any way have assisted him if he was stopped by the police;
iii) The evidence was inconsistent with the country background material. Judge McGinty could find no evidence to support the claim that there were cards which identified the holder as ‘undocumented’.
7. Overall the Tribunal concluded that the most likely version of events was that the Appellant had obtained a card from the Bidoon Issues Committee because it was a card to which he was entitled as a documented Bidoon. It was as a result of using that card that he had been able to avoid any difficulty with the police. The appeal was thereby dismissed.
8. The appeal is brought on the basis that in making the finding at 6 (iii) above, the Tribunal erred in failing to properly understand, or apply, the country guidance on this point. The written grounds read as follows:
“At para 21 FtTJ McGinty states: “there was no reference to cards simply being issued to undocumented bidoons, as claimed by the appellant”. It is respectfully submitted that the IJ fails to grasp the fundamental distinction between such cards that are issued to those Bidoons who have renewed existing cards and can be classified as documented Bidoons, and those Bidoons who have never held such cards or been refused renewal of their expired cards and can be classified as undocumented Bidoons. At para 87 of NM it is referred to as “the third category consists of the unregistered Bidoons, as they are described in the HRW Report, ie those who are not able to renew their security cards or people who have never obtained security cards”. The IJ fails to apply that to the Appellant’s claim that he falls into that third category.
9. In his oral submissions Mr Sadiq expanded on the grounds to submit that the ‘inconsistencies’ identified in the evidence were no such thing. The Appellant had always said that he had got it through contacts and that it was not a properly issued card. That was not discrepant with the card being forged. The country background evidence supported his account that the police behaved in an arbitrary and inconsistent manner so it was not inherently implausible that the Appellant had managed to get by using the card as he describes. The Appellant had called witnesses in support and their evidence had been dismissed on the basis that it was not sufficient to displace the inconsistencies in the Appellant’s evidence. That finding therefore stood and fell with the appeal.

My Findings
10. The relevant findings of the Upper Tribunal in NM are at paras 82 to 104 of that decision. The Tribunal finds there to be three categories of residents in Kuwait. First, there are Kuwaiti nationals entitled to documentary evidence of their citizenship and all the benefits that flow from that recognition. Second there are the Bidoon who registered with the Committee between 1996 and 2000 and who were issued with security cards. These cards provide this group with access to some services, and in a limited capacity to travel documents etc. Mr Sadiq submitted that the First-tier Tribunal in this case was concerned with the ‘third category’, defined at para 87 of NM:
“The third category consists of the unregistered Bidoon, as they are described in the HRW report, i.e. those who are not able to renew their security cards or people who have never obtained security cards. This group of people are denied all the benefits that are available to those with security cards, as set out above. Thus they cannot obtain passports of any kind, they are not provided with any educational funding and they are denied access to government clinics and hospitals altogether. Thus they are not even able to purchase low-cost health insurance through the government-administered program. Their only recourse is to seeking medical services from expensive private hospitals, which is clearly extremely problematic given their limited ability to find work”.
11. Mr Sadiq submitted that on any reading of the evidence the card described by the Appellant brought him within that category. It might have been obtained by bribery/a favour, a genuine document wrongly issued by the Committee; it might be an out and out forgery. The Appellant in truth could not say, all he knew was that someone had got it for him. The assertion was however that it was a document which could not be renewed and this therefore brought him within that group identified in NM: persons whose security cards could not be renewed.
12. I accept Mr Sadiq’s point that the Appellant could, on the evidence he gave, potentially be considered to be a person falling within the category identified. That is consistent with the information at 2.3.12 of the current country Information and Guidance Note2 about persons who are ‘de facto undocumented’. Had it been accepted that the Appellant was – for whatever reason – a person who was in possession of a card that could not be renewed, he could have succeeded in his appeal.
13. It is however perfectly clear from Judge McGinty’s reasoning that the Appellant did not satisfy him that this was the case. It was for the Appellant to establish, on the lower standard of proof, that he had been in possession of a card which could not be renewed, that in effect offered him no protection from the discriminatory denial of rights visited upon undocumented Bidoon. In trying to discharge that burden the Appellant gave discrepant and internally incoherent evidence which Judge McGinty was entitled to reject. I find that the evidence was contradictory, see for instance at §18:
“The Appellant then confirmed that the Bidoon Issues Committee does issue genuine cards, but then said that the person who produced his card, forged the card as he could not get him a genuine one. This I find was inconsistent with the Appellant’s earlier evidence that he obtained the card from the Bidoon Issues committee through someone who was linked with the committee”.
14. The central finding of the Tribunal was that the evidence made no sense. If the Appellant needed a fake card to avoid trouble with the police, and went to the trouble of obtaining one, why did he not carry one that had at least not expired? That was reasoning rationally open to the Tribunal. If the Tribunal rejected the Appellant’s evidence it was not obliged to default to a finding that he was undocumented.
15. I am not satisfied that this determination contains an error of law such that I would be lawfully entitled to interfere with it.

Decisions
16. The determination of the First-tier Tribunal does not contain an error of law such that it should be set aside and it is accordingly upheld.
17. There is no order for anonymity.

Upper Tribunal Judge Bruce
22nd March 2017