Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/12587/2015

THE IMMIGRATION ACTS

Heard at Glasgow
Decisions and Reasons Promulgated
On 16 November 2016
On 13 December 2016

Before

UPPER TRIBUNAL JUDGE DEANS

Between

MS S A M O
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr S Winter, Advocate, instructed by Katani & Co, Solicitors
For the Respondent: Mrs M O'Brien, Senior Home Office Presenting Officer

DECISION AND REASONS
1) This is an appeal against the decision by Judge of the First-tier Tribunal Loughridge dismissing an appeal on asylum and human rights grounds.
2) The appellant was born on 25 January 1984 and is from Kuwait. The basis of her asylum claim is that she is an undocumented Bidoon.
3) The appellant first claimed asylum in 2010, very shortly after entering the UK. She then appealed against the refusal of her asylum claim. Her appeal was dismissed by Judge Bircher in January 2011. A similar appeal by the appellant's sister, Amal, was also dismissed.
4) Another sister of the appellant, Wassen, also brought an appeal against the refusal of an asylum claim. This appeal was heard in February 2011 before Judge Battersby, who found Wassen to be an undocumented Bidoon. The appellant's current position is that as her sister, Wassen, was found to be an undocumented Bidoon the likelihood is that she also is an undocumented Bidoon.
5) The respondent's position in relation to this is that the appeal by Judge Battersby was made on the basis of the evidence before him and showed that on that occasion he was satisfied to the lower standard that Wassen was an undocumented Bidoon. As Judge Loughridge points out, at paragraph 10, the respondent's position in effect was that the decision by Judge Battersby was incorrect. Further light is cast on this by a country guideline decision made in 2013 about the meaning of an undocumented Bidoon. This decision is NM (Documented/undocumented Bidoon: risk) Kuwait CG [2013] UKUT 00356. This concerns a security card issued in Kuwait known as an "green card". As Judge Loughridge records at paragraph 17, green cards are issued by a body known as "the Bidoon Committee", which has exclusive authority to determine all matters touching upon nationality or official documentation for the Bidoon. Between 1996 and 2000 there was an opportunity for Bidoons to register with the Bidoon Committee and to be issued with green cards. The green card has to be renewed either annually or once every two years. The significance of the decision in NM was that to be accepted as undocumented a Bidoon had to show not, as previously thought, that they had no civil identification documents, such as, in particular, an ID card, but that they did not have a green card. If an individual possessed a green card the individual would be regarded as a documented Bidoon. This is because, as Judge Loughridge pointed out at paragraph 19, the green card leads to access to benefits such as health care and education. It is further stated in NM, as pointed out by Judge Loughridge at paragraph 20, that green cards are not always renewed and that those who are not able to renew their green cards are undocumented, despite previously being documented.
6) Judge Loughridge considered the decision by Judge Battersby allowing the appeal by the appellant's sister, Wassen. Judge Loughridge was hindered by having only a partial copy of Judge Battersby's decision. It appears that the even numbered pages of the decision were missing, perhaps not having been copied when the decision was promulgated. Judge Loughridge noted at paragraph 24 that Judge Battersby had approached the issue of green cards in a different way from the approach in NM. Judge Battersby relied on a dictum of Sedley LJ as authority for the proposition that possession of a green card, paradoxically, confirmed a person's status as an undocumented Bidoon. Judge Battersby appears to have been satisfied with the authenticity of Wassen's green card. Judge Loughridge points out that following the decision in NM the possession of a green card was regarded as confirming status as a documented Bidoon as a matter of fact. Although Judge Loughridge was not aware of the full citation of the case in which Sedley LJ considered this matter it appears to have been referred to under the name SA, and to be an appeal to the Court of Appeal from a decision by Judge Martin.
7) Judge Loughridge considered that Judge Battersby's conclusion about Wassen should not be regarded as reliable. This was because it was based on a finding that possession of a green card confirmed status as an undocumented Bidoon, whereas the country guideline case of NM subsequently established that the opposite was correct.
8) Quite properly Judge Loughridge also considered the decision by Judge Bircher in the earlier appeal by the appellant. In this appeal Judge Bircher took the view that the appellant's green card was not authentic but having regard to her and her family's life in Kuwait she was nevertheless a documented Bidoon. At paragraph 27 Judge Loughridge observed that the issue of the green card did not form the basis of Judge Bircher's decision and seems to have had little significance to the outcome.
9) The appellant's position before Judge Loughridge was that her green card expired in 2007 and she was undocumented thereafter. Judge Loughridge regarded this as a new submission, in terms of Devaseelan [2002] UKIAT 00702 and required proper consideration. In the view of Judge Loughridge, at paragraph 28, it was appropriate to re-assess whether the green card was authentic.
10) At paragraph 29 Judge Loughridge observed that there was "no particular reason" to conclude that the appellant's green card was not authentic. The difficulty for the appellant was that there was absolutely no evidence about what happened in 2007, when her green card expired. There was no evidence about whether there was any attempt to renew the green card and if so, what happened. Judge Loughridge referred to the decision in KD (Bidoon - destroyed documents) Kuwait [2008] UKAIT 00086 in which the Tribunal concluded that a Bidoon who destroys their documents does not by this reason alone become an undocumented Bidoon. By the same logic, Judge Loughridge concluded that a Bidoon who does not seek to renew a green card does not automatically become undocumented. The appellant's evidence was that she knew nothing about her green card but was given it by her father when she decided to come to the UK. If this was correct it would appear that there were few, if any, situations in which she needed to use a green card to access services and, accordingly, it was entirely plausible that at some stage her father, who appeared to have obtained the green card for her, might simply have decided not to renew it.
11) At paragraph 30, Judge Loughridge concluded that it was "simply too speculative" to find that an attempt was made to renew the appellant's green card in 2007 but this was unsuccessful. If the appellant's green card, which expired in July 2007, was indeed the last green card she possessed, that situation had not been shown to be due to an inability to renew the card, even on the basis of the lower standard of proof. By analogy with the decision in KD, the appellant was not to be regarded as having become undocumented at that time. The test was not simply one of possession of a green card but whether a green card was available. Given that the appellant was clearly registered with the Bidoon committee, in the absence of any evidence that renewal of her green card was refused, the judge clearly could not make a finding to the effect that a green card was not available to her. There was no reason to suppose that if the appellant returned to Kuwait she would not be able to obtain a green card from the Bidoon committee.
Application for permission to appeal
12) The application for permission to appeal made much of the fact that Judge Loughridge did not have a complete copy of the decision by Judge Battersby in respect of the appellant's sister, Wassen. The judge erred by drawing conclusions from an incomplete decision. The judge had refused an adjournment for the purpose of obtaining a complete copy.
13) It is further contended in the application that the judge found that the green card was authentic but in so doing ignored the original finding by the respondent that the card was not authentic. The respondent changed her position without any change in the evidence. The judge also disregarded the decision of Judge Bircher, who found the card to be inauthentic. It was pointed out that the appellant herself could not confirm that the card was authentic as it was obtained by her father. It was not clear on what basis Judge Loughridge had concluded that the card was genuine. The judge did not take account of relevant matters and failed properly to elucidate the findings made.
14) The application then refers to the renewal of the green card. It was contended that even if the appellant had been a documented Bidoon in 2007 she was no longer documented. The case of NM confirmed that the ease of renewal of green cards varied widely and arbitrarily. This was consistent with the submission for the appellant. While there was no evidence confirming a failed attempt to renew the card, this was not surprising. The evidence did not show that the Bidoon committee would provide written confirmation of refusal. The date of the older sister's green card was not apparent from the incomplete copy of the decision in respect of her appeal.
15) Permission to appeal was granted principally on the basis that the judge arguably erred in relying upon an incomplete decision by the judge in the sister's appeal.
16) The respondent submitted a rule 24 response dated 11 May 2016. This observes that the judge was aware of the missing pages from the sister's decision. The judge noted that part of the reason the sister's appeal was allowed was because she was in possession of a green card, contrary to the guidance in the case of NM. The judge concluded that the appellant's green card was authentic but there was no evidence as to why it was not renewed from 2007 onwards. The burden was on the appellant to provide this evidence. The judge was entitled to come to the findings made and gave cogent reasons for so doing. While the previous decision in respect of the appellant found the card not to be authentic, the judge noted that this did not form the main reason why the appeal was dismissed. The judge directed himself properly in relation to Devaseelan.
Submissions
17) In his submission on behalf of the appellant Mr Winter pointed out that owing to a change of location by the appellant she had changed her representatives. He further pointed out that the relationship between the appellant and her sister Wassen had been established by a DNA test.
18) Turning to the decision by Judge Battersby in respect of Wassen, Mr Winter submitted that the appellant's new solicitors had attempted to obtain a full copy of the decision but both the appellant and her sister had only the odd numbered pages, as did the Home Office. A request had been made to the Tribunal for a full copy but this had not been received. Mr Winter pointed out that an adjournment application had been made before the First-tier Tribunal as recorded at paragraph 24. Judge Loughridge was unfair not to grant an adjournment as he drew conclusions from the sister's decision when it was unclear how such conclusions had been reached. At paragraph 24 Judge Loughridge stated that the issue in the appeal heard by Judge Battersby concerned Wassen's husband's political activity but this was an unfair finding.
19) Mr Winter accepted that the decision in NM caused difficulties for the appellant. It was unclear what Judge Battersby had said about the green card in Wassen's appeal. In the present appeal there was an inconsistency of approach. The respondent said the green card was not authentic. This had been followed by Judge Bircher in the first appeal. In the later appeal Judge Loughridge appeared to accept that the card was authentic. It was not clear on what basis the judge had made this finding. Judge Loughridge referred to Devaseelan but there was no evidential basis on which to conclude the green card was authentic. The judge was not entitled to conclude that the green card was authentic on the basis of the sister's appeal when there were pages missing from Judge Battersby's decision and it was not clear what part the green card had played in that decision.
20) Mr Winter continued that even if the green card was authentic it was still an error for Judge Loughridge to have found the appellant was not undocumented. He should have found that the appellant did not renew or could not renew her card. The decision in NM confirmed that ease of renewal varied greatly. There was an inconsistent approach to renewal.
21) Mr Winter continued that at paragraph 37 Judge Loughridge had decided that it was not just possession of a green card that was significant but the availability of the green card. This was addressed in the application for permission to appeal. It was not speculative to assume that the appellant was unable to renew her green card. Written refusals were arbitrary. It was not apparent what the date of the sister Wassen's green card was because a decision in respect of her appeal was incomplete.
22) For the respondent, Mrs O'Brien submitted that the burden of showing unfairness was on the appellant. The appellant's proposition was that her appeal should succeed on the basis of her sister's successful appeal. There was a time lag between the two appeals. Judge Loughridge had been entitled not to adjourn but to proceed on the basis of the evidence presented. It was fair to say that Judge Loughridge had been correct in clarifying the rationale as to why the sister's appeal had succeeded. Judge Loughridge referred to the Secretary of State's position at paragraph 10 of the decision. At paragraph 24 Judge Loughridge set out what could be extracted from the decision by Judge Battersby. It was not incorrect to say that Judge Battersby's decision was made with reference to the green card but it could not be said for sure what the full reasoning was without the complete decision. There was enough, for the judge to make findings at paragraph 24, particularly after the passage of time since Judge Battersby's decision was issued.
23) Mrs O'Brien continued that the question of the green card had been affected by the country guideline case of NM and in this respect paragraphs 28-29 of Judge Loughridge's decision were correct. Judge Loughridge had applied the up-to-date position. Judge Loughridge did not depart from the principles in Devaseelan but was required to make up-to-date findings.
24) Mrs O'Brien further submitted that Judge Loughridge's observations at paragraph 28 about Judge Bircher's decision were correct. Judge Bircher did not concentrate on the green card in her decision. Her decision was based on credibility matters and only brief consideration was given to the green card. There was a difference of emphasis between the two decisions. Judge Loughridge's decision was consistent with NM. Judge Loughridge took into account Judge Bircher's findings on credibility. The appellant was had not established that she was an undocumented Bidoon. There was no error in the decision and no unfairness.
25) In response Mr Winter said that the adjournment request to the First-tier Tribunal had been made both in writing and orally. It was not clear when a written request was made. Attempts had been made to obtain the decision by Judge Battersby. This was unfairness in terms of Nwaigwe [2014] UKUT 00418. Mr Winter further submitted that Judge Bircher had agreed with the Home Office position set out in the original refusal letter of 8 December 2010, at paragraphs 45-47, where it was concluded that no weight was attached by the respondent to the green card. Judge Bircher's findings were relied upon in the second refusal letter of 7 September 2015. Nevertheless, according to Judge Loughridge at paragraph 27 no reasons were given by Judge Bircher as to why the green card was considered not authentic. This was an insufficient basis for Judge Loughridge to make a contrary finding about the authenticity of the green card. The appellant was entitled to rely on the previous decision by Judge Bircher. The judge found the appellant had not made efforts to renew her green card while accepting it was genuine. Mr Winter submitted that the decision should be set aside and a further hearing appointed.
Discussion
26) Taking the issue of the adjournment application first, it may be observed that Judge Loughridge dealt with this very briefly at paragraph 24, stating no more than that an adjournment would not be "a proportionate way forward." The use of the term "proportionate" indicates that Judge Loughridge was having regard to the Tribunal's overriding objective. As Mrs O'Brien pointed out, the appellant had had adequate time following her sister's appeal to obtain a full copy of the decision. Indeed, Mr Winter acknowledged that the appellant's new solicitors had still not been able to obtain a full copy of the decision. It may be that a full copy is not available.
27) The material issue, however, is not so much whether a full copy of the decision should or could be provided, but whether the judge erred in relying upon the partial copy. Certainly some of the findings and parts of the reasoning were incomplete. Nevertheless the conclusions were clear and, in particular, Judge Battersby's reasoning was clear as to why possession of a green card led to the conclusion that the appellant's sister, Wassen, was an undocumented Bidoon. All that was missing was the full citation of the case in which it was seemingly accepted in a decision of the Court of Appeal that a Bidoon in possession of green card was nevertheless undocumented. The essential point is that the particular finding on which the decision in Wassen's appeal was based is no longer regarded as correct following the country guideline decision of 2013 in NM.
28) The timing of the events leading to the present appeal are very significant, and were rightly considered to be so by Judge Loughridge. The appellant's first asylum claim was made in November 2010 and an appeal against the refusal of this claim was dismissed in February 2011 by Judge Bircher. At that time the appellant did not seek permission to appeal. The appeal by the appellant's sister, Wassen, was heard in February 2011 before Judge Battersby. Judge Battersby's decision is dated 3 March 2011, by which time the appellant's appeal rights were exhausted.
29) Subsequently, in March 2013 the appellant lodged further submissions relying, at least in part, on the outcome of Wassen's appeal. The appellant produced DNA tests dated August 2012 establishing her relationship with Wassen. It is these further submissions which were refused in a decision by the respondent of 7 September 2015. The resulting difficulty for the appellant is precisely this. In January 2013, shortly before she made her further submissions to the respondent in March, the Upper Tribunal heard the case of NM which led to the country guideline decision to the effect that the appellant's possession of a green card showed not that she was an undocumented Bidoon, as was accepted in Wassen's appeal, but precisely the opposite, namely that the appellant was a documented Bidoon. The appellant having thought on the basis of the outcome of her sister's appeal that success was now within her grasp by claiming that having a green card meant she was an undocumented Bidoon, this was snatched away from her by the decision in NM, made around the same time as the appellant was making her further submissions.
30) All of this is recorded by Judge Loughridge in his decision, although not in such stark terms. In particular, although possession of a green card played a material part in success of Wassen's appeal, possession of a green card by the appellant would lead to the opposite result because of the decision in NM. This conclusion was one which Judge Loughridge was entitled to reach, notwithstanding that some of the pages of the decision in Wassen's appeal were missing. The missing pages did not affect Judge Loughridge's reasoning on this matter and to this extent the missing pages were not material.
31) Accordingly, there was no prejudice or unfairness to the appellant by the decision not to adjourn.
32) The appellant presents a stronger argument in relation to the issue of whether Judge Loughridge was entitled to find that the appellant's green card was authentic, whereas Judge Bircher in the earlier appeal by the appellant had found that it was not. It is submitted in the application for permission to appeal that the respondent's position on the authenticity of the green card has been inconsistent. It is not the position of the respondent with which I am concerned, however, so much as the position of Judge Loughridge.
33) Judge Loughridge clearly had before him a full copy of Judge Bircher's decision in the 2011 appeal by the appellant. Judge Loughridge considered whether in terms of Devaseelan he was obliged to follow the finding on the authenticity of the green card made by Judge Bircher in the earlier appeal. He concluded at paragraph 27 that he was not. Mr Winter suggested that this finding was not adequately reasoned but I do not agree with this contention. Judge Loughridge found that the finding made by Judge Bircher about the green card was not wholly material to the outcome of that appeal.
34) In this regard Mr Winter referred me to the respondent's refusal letter of 7 September 2015 and the reasons for refusal at paragraphs 14-24, in particular. Part of Judge Bircher's decision is quoted in these paragraphs. Judge Bircher states that the appellant's card was issued in 2007. Judge Bircher then records that this was inconsistent with a COIS report of 2009 which stated that "alien reporting cards" were issued by the government until the middle of 2003 when they ceased to renew them.
35) It must be accepted that Judge Loughridge does not refer to Judge Bircher's particular finding in this respect, which is to be found at paragraph 16 of her decision. Judge Loughridge makes it clear, however, for instance at paragraph 25, that the decision in NM affects our understanding of the significance of the green card. Judge Bircher clearly did not have the benefit of the decision in NM and Judge Loughridge was entitled to assume that any findings made by Judge Bircher without regard to NM should, where relevant, be reviewed. This was a position that Judge Loughridge was entitled to take.
36) The application for permission to appeal questions the basis on which Judge Loughridge was entitled to find that the appellant's green card was authentic. This ground appears to have been drafted without conscious irony but it completely disregards the point that when the appellant made her further submissions in 2013 she appears to have done so on the basis that not only was her green card authentic but, in the light of her sister's appeal, it should be taken as showing that she was an undocumented Bidoon simply because of her possession of such a card. So the question of why Judge Loughridge found the appellant's green card to be authentic may be answered in part by the fact that the appellant herself relied upon its authenticity, at least implicitly, when making her further submissions. If the appellant now seeks to show that the card is not authentic, the burden will be on her to produce evidence to show it is not authentic. For reasons which I have already considered, Judge Loughridge was not bound by the basis on which Judge Bircher had found the green card was not authentic. In effect, to a large extent Judge Loughridge accepted the appellant's own contention that her green card of 2007 was genuine.
37) This brings me to the final challenge to the decision by Judge Loughridge, which was based on the issue of whether even if the appellant had an authentic green card in 2007, she was now an undocumented Bidoon and the Judge was wrong to find otherwise. The difficulties of renewing a green card in terms of NM are referred to in the grounds.
38) I think it is worth pointing out that Judge Loughridge, at paragraph 30, eschewed a claim on behalf of the appellant that any attempt to renew the green card in 2007 was or would have been, unsuccessful. The judge considered that there were a variety of possibilities. The judge considered that there were a variety of possibilities. One of these was that her father may simply have decided not to renew the green card because of the few situations in which the appellant needed it. The essential finding by the judge was that the appellant had not shown that she had been unable to renew the card, even to the lower standard of proof.
39) I consider this was a finding which the judge was entitled to make. The burden of proof was on the appellant to show that she was an undocumented Bidoon. She had sought to show that in 2007 she had a green card, which following the decision in NM would mean that she was not undocumented unless she could also show that renewal of the card had been refused. The appellant, however, did not give evidence to this effect. Judge Loughridge was faced with a complete absence of evidence as to why the appellant did not have a green card for any period later than 2007. In the absence of evidence it was for the judge to address the issue of where the burden of proof lay and, as the judge found at paragraph 30, it was for the appellant to show that she was unable to renew her card.
40) Mr Winter presented a further ancillary argument to the effect that Judge Loughridge was wrong to equate the circumstances of a Bidoon who does not seek to renew a green card with a Bidoon who has deliberately destroyed their green card or other identity documents. I do not consider it as necessary to address this point in depth. The essential point was that the appellant had not shown either that she or her father acting on her behalf was unable to renew the green card and accordingly she had not shown she was an undocumented Bidoon.
Conclusions
41) The making of the decision of the First-tier Tribunal did not involve the making of an error on a point of law.
42) I do not set aside the decision.
Anonymity
43) The First-tier Tribunal did not make an order for anonymity. I have not been asked to make such an order and I see no reason of substance for doing so.

Signed Date

Upper Tribunal Judge Deans