Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: DA/00311/2014
AA/07940/2014, AA/07938/2014
AA/11211/2014, AA/11213/2014
AA/11214/2014, AA/11216/2014
AA/11218/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision Promulgated
on 19 December 2016
On 07 February 2017

Before

UPPER TRIBUNAL JUDGE HANSON

Between

ALI ALENZI
FAWZIA HASAN MANEA
MOHAMMED ALENZI
OMAR ALENZI
ABDULLA ALENZI
FATIMA ALLENZI
OTHMAN ALENZI
ABDUL ALENZI
(Anonymity direction not made)
Appellants
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms K Mclarthy instructed by Powell Spencer and Partners, Solicitors
For the Respondent: Mr D Clarke, Senior Home Office Presenting Officer.

DECISION AND REASONS

1. This is an appeal against a decision of First-tier Tribunal Judge Mayall promulgated on the 13 July 2016 in which the Judge dismissed the appeals of this family unit for the reasons stated in the necessarily lengthy and detailed judgment.
2. Permission to appeal was refused by another judge of the First-tier Tribunal but granted on a renewed application by Upper Tribunal Judge Lindsey on the 9 November 2016 in the following terms:
1. The appellants are related as father, mother and five children. The father, and first appellant is a citizen of Australia of Kuwaiti origins and faces deportation proceedings after being sentenced to 8 months imprisonment for obtaining leave to remain in the UK by deception; he had claimed asylum and obtained leave to remain on the basis he was a Kuwaiti Bidoun without disclosing his Australian citizenship. His wife and children state they are Kuwaiti Bidouns and are entitled to asylum in the UK and all argue that they should be allowed to remain on Article 8 ECHR grounds.
2. This is a renewed application for permission to appeal against the decision of the First-tier Tribunal made at Hatton Cross dismissing the appeal on all grounds.
3. The grounds of appeal contend that there are three errors in the decision of the First-tier Tribunal.
4.In relation to errors said to exist in the determination of the asylum appeal, there clearly can be no material errors in relation to the first appellant (the father) and the three youngest children (the fifth, sixth and seventh appellants) as these people are all Australian citizens. This leaves the second appellant (the mother) and the children born in 1997 (third appellant) and 2000 (fourth appellant). It is argued that the evidence of Nasser Al-Anezy of the Harrow Community Association is that the family are Kuwaiti Bidoons and that documentation was not issued by the Kuwaiti authorities after 1990 to Kuwaiti Bidoons. It is arguable that this evidence, from an expert who was found to be honest, is material and has not been considered in finding whether the third and fourth appellants are in fact undocumented Kuwaiti Bidoons. It is arguable that this could materially have affected the outcome of their appeals. The other challenges to the asylum decision are not as clearly arguable but permission is granted to argue all of the asylum grounds at the error of law hearing.
5.It is secondly argued that the best interests of the children have not been properly considered, and that this is particularly the case with the 16 year old sixth appellant who has multiple health and educational needs. It is arguable that the analysis that the sixth appellant would access health care and education which is adequate is not compatible with the evidence before the First-tier Tribunal from the health and education documents, which is arguably that this did not take place when she lived in Kuwait, and that as a result the best interests of the sixth appellant is flawed for failure to consider relevant material, and in turn the Article 8 ECHR private life analysis both under the Immigration Rules and outside those Rules is arguably flawed as this would be a key factor in this decision making.
Error of Law
3. This matter had been previously considered by another judge of the First-tier Tribunal who was found to have made material errors of law in failing to consider the members of the family individually. The appeal was remitted as a consequence. Judge Mayall considered the parties individually and in relation to the second, third and fourth appellants made a number of findings which can be summarised as follows:
4. The Judge considered the claim by the second appellant to be a Kuwaiti Bidoon at [21 to 23] initially where it is stated:
21. Your claim that your husband made four attempts at obtaining family reunion visas in Australia but all the attempts failed and that the Australian authorities did not provide a reason why the applicants were unsuccessful (AIR Qs. 82-84). Your legal representatives have, twice, failed to provide the signed authorisation that the Australian government needed in order to release details of the reunion application under their Freedom of Information Laws. You have also failed to provide the information regarding your husband's Australian citizenship and the basis upon which he was granted asylum. You claim that he was granted refugee status in Australia on the basis of being a Bidoun, however, you have adduced no evidence to suggest this. It is also considered that Australia would honour any genuine family reunion application under the Convention.
22. It is also noted that a Certificate of Australian Citizenship in the name of Ali Matar Alefan dated 26 January 2011 was found in your husband's possession. This is a different family name from the surname that your husband and children are using in the UK. 'Alenzi'. 'Alenzi' is a common surname among Kuwaitis (COI Requests 12/11-064 &06/10-098). Given that you husband has used different surnames and not explained the reason why, your children's surname of 'Alenzi 'is found to be unsubstantiated and is not considered evidence of membership of the said tribe.
23. In light of the above, your claim to be a Bidoun cannot be verified either way and is found uncertain, consideration will be given to whether to apply the benefit of the doubt to this aspect of your claim at paragraph 25.
5. The Judge considered the evidence in some detail before setting out the findings made at [105-158]. At [105] the Judge states "I regret that I cannot find the first or second appellants to be credible or honest witnesses. I cannot rely upon their evidence in any material particular".
6. The finding by the Judge in relation to the use of a surname that differs from that appearing on the Certificate of Australian Citizenship was fully open to the Judge on the evidence. The Judge also records a number of other relevant findings at [106-118] in relation to the evidence of the first appellant in the following terms:
106. The first appellants has shown himself to be a man very willing to use deception in order to further his own interests or the interests of his family. This is demonstrated graphically by his failure to disclose that he had obtained Australian citizenship when applying for asylum. He was sentenced to a term of imprisonment in respect of this.
107. Notwithstanding this he was fully aware that three of his children were also Australian citizens. Despite his earlier deception and punishment he failed to disclose this fact. Although he may not have been responsible for the details of the asylum applications in respect of those children he was fully aware that they were Australian citizens and that this could have been disclosed. At no stage did he seek to correct this until his oral evidence before me now.
108. Given his claim that his wife or the second appellant, need guidance in all matters relating to the children I am satisfied that he must have played at least a part in the decision to conceal the fact that the children had Australian passports.
109. There were discrepancies between him and his wife in relation to those passports. He said that he had sent then back to Kuwait by post although it is somewhat unclear why he would have done that. His wife claimed that she had destroyed the passports. Her evidence on this was, however, extremely confused and contradictory. I gained the impression that she was simply making up her answers on the spot in relation to this. I cannot know for sure whether either or neither of them is telling the truth about the passports. I consider it, on balance, more likely that those passports have not been destroyed and that the appellants have kept hold of the passports in case they should be required at a future date.
110. Similarly there was a discrepancy as to how the family left Kuwait. Both the first and second appellants claim that they did so by plane. This was flatly contradicted by the evidence of their son. He gave details of a road journey made by minibus. I consider that this a more likely version of events than that put forward by the first or second claimant
110. The first and second claimant claims that the second claimant and the elder children were provided with, presumably, false passports in order to make the journey. They claim to have no knowledge of the nature of these passports or even to have enquired about the nature of those passports. I find this implausible.
112. The first appellant claimed to have only had minor problems in Kuwait before going to Australia as a result of his undocumented Bidoon status. He claims to have been detained on two occasions for not having documents. Each detention was for only one day.
113. His wife, in contrast, claimed that he had been detailed for two months or so as a result of taking part in demonstrations. Again her evidence on this was confused. She claimed that she had been told that he had been arrested but never knew why he had been released and had not asked. I find this implausible.
114. The first appellant claims that, having gained Australian citizenship, he made numerous applications for his family to join him. He has claimed that he was never given any written reason for the failure of these applications. In his oral evidence that was his initial evidence. He then accepted that he had been given some written reasons but that he no longer had them.
115. He claimed asylum in Australia in a different name. I found his explanation for this to be unconvincing. He claims that he wanted to be able to use his Australian identity in order to come back to Kuwait without it being realised that he was a Kuwaiti. He claimed that the name he uses now is a common Kuwait name. That may well be the case but the name he used for the Australian application was also a name which he says was the name of his forebears. It would be unlikely that, if he were claiming asylum in Australia on the basis he was a Bidoon, he would choose a name which was not a name which would be associated with being a Bidoon.
116. He claimed that as an undocumented Bidoon, his children were not entitled to any medical care. In his witness statement he said that his daughter was born in 2000 and as he was in Australia he did not see her until he returned to Kuwait in 2002. His wife had not realised that there was anything wrong with her. It was only when he went back to Kuwait that he noticed that something was not right. As they were not entitled to free medical treatment his wife had not taken her to the doctors. He then took her to a private hospital but the doctors could not do anything. He said she needed a very expensive operation.
117. This, however, is in striking contrast to what he told the social worker in 2011. Firstly he told her that she had been born by emergency caesarean at term because of concerns about the health of mother and baby. She had been kept in the hospital with her mother for one week. This, itself, does not sit at all easily with the claim that neither mother nor child were entitled to any medical treatment. He then told the social worker that Fatima had been admitted to hospital many times in the first two years of her life. I consider it much more likely that the information he was giving to the social worker was correct.
118. In addition it is clear that Abdul had had significant medical treatment in the shape of a complete blood transfusion whilst he was in Kuwait. The appellant claimed that this was a one-off funded by a friend. I find this to be extremely unlikely. It had not been mentioned and indeed it was curious that the relevant document did not appear in the bundle although it had appeared in the previous bundle. Abdul undoubtedly had an Australian passport. His father applied for that when he was born as he told me. As an Australian citizen in Kuwait he, the first appellant, was apparently entitled to access all services. It would seem unlikely that Abdul would not have been able to access those services.
7. The credibility of the second applicant was also doubted. At [119-120] the Judge found:
119. In respect of the second appellant she undoubtedly used deception in respect of the children's asylum applications. She admitted she knew full and well that three of them were Australian citizens but did not declare that fact. I have already referred to the discrepancies between her and her husband's account of his difficulties in Kuwait and all the circumstances in which she and her children left Kuwait. As stated above I gained the impression during parts of her evidence that she was simply making up her answers on the spot.
120. She also claimed that she was unable to access any healthcare in Kuwait. She did not disclose that she had had at least one of her children, Fatima, in a hospital for a week. She also did not disclose that Fatima had had many hospital admissions in her first two years.
8. The Judge refers to the county information relating to Kuwaiti Bedoon and the three categories of that ethnic group. The first category is those who hold security cards and who are entitled to all the benefits that flow from the same [121]. The third category is described at [122] as those not holding a security card. The Judge noted that these are unable to obtain a passport, are not provided with any educational funding and are denied access to government clinics and hospitals altogether. The only recourse for such individuals being to seek recourse for medical treatment from private hospitals.
9. At [123] the judge noted that it is only this third category who are at risk of persecution in Kuwait and that the burden was upon the applicants to substantiate their claim to be undocumented Bidoon, i.e. in the third category.
10. The Judge, having heard the appellants give evidence found the accounts given to be internally inconsistent. This is a finding that has not been shown to be outside the range of reasonable findings the Judge was permitted to make on the evidence in light of the matters recorded above.
11. The Judge also considered the external consistency of the appellants' case and found at [124] that the claim was inconsistent with the country information regarding the reality for those falling within the third category. The Judge specifically finds:
"?.It seems to be simply totally implausible that, if the second appellant were not entitled to any healthcare at all that she would have been receiving maternity treatment in hospital for the birth of her daughter or that she would have been kept in for a week or that Fatima would have had many admissions to hospital during the first two years of her life. That seems inconsistent with the picture painted for the life of undocumented Bidoon".
12. At [125] the Judge finds that this impression is strengthened by the fact one of the other children also received medical treatment.
13. Ground 1 asserts the judge erred in failing to consider the evidence that supported the appellants case such as that from the Chairperson of the Harrow Kuwait Community Association. This evidence was considered by the Judge who makes specific reference to it at [126] as well as the evidence from other family members. Indeed, the Judge notes at [127] that it was claimed that other family members have been granted status as undocumented Bidoons. The country guidance case law was also considered which does not conclude that all Bidoon are undocumented or entitled to asylum.
14. In relation to the witness from the Harrow Kuwaiti community, that evidence is not determinative and especially not so in relation to the question of credibility which is a matter for the Judge. There has been no artificial separation in the way in which the evidence was considered by the Judge. The evidence was clearly considered 'in the round' and the Judge has given adequate reasons for why it was not accepted that the appellants' had discharged the burden of proof upon them to show that what they were claiming is true.
15. In relation to the fact other family members have been recognised as refugees, this was noted by the Judge as was the fact the credibility of the account given in those cases had not been tested in court. This is accepted in paragraph 18 of the grounds where it is also suggested that notwithstanding this fact the authorities were satisfied that the family members were undocumented Bidoon. In IA (Appellant) v SSHD [2014] UKSC 6 Lord Kerr said "All of these factors require of the national decision-maker close attention to the UNHCR decision and considerable pause before arriving at a different conclusion. The approach cannot be more closely prescribed than this, in my opinion. The UNHCR conclusion on refugee status provides a substantial backdrop to the decision to be made by the national authority. A claimant for asylum who has been accorded refugee status by UNHCR starts in a significantly better position than one who does not have that status. But I would be reluctant to subscribe to the notion that this represents "a starting point" in the inquiry because that also hints at the idea of a presumption. Recognition of refugee status by UNHCR does not create a presumption, does not shift the burden of proof and is not a starting point (if by that one implies that it is presumptively assumed to be conclusive) but substantial countervailing reasons are required to justify a different conclusion". It was also said that a claimant's credibility was an accepted basis on which to depart from an earlier UNHCR decision. Where a claimant's story was so riddled with inconsistency and implausibility that it was rendered unbelievable then a national authority was not obliged to accept it simply because it was accompanied by a favourable UNHCR decision.
16. Such principle is equally relevant to this case in which accounts previously given by others have been accepted but not tested and when the core element is tested, it is found to lack credibility.
17. It was submitted that the finding Fatima had received medical treatment in the past was not open to the Judge on the evidence as the child had had no surgery and no education. The source for this claim is said to be the content of the letter dated 24 October 2011, at pages E12-13 and the document at E20 of the appellant's bundle, the former from Northwest London Hospitals NHS, Children's Services Directorate. Such a submission is difficult to reconcile with that letter which contains the following statement referred to by the Judge:
Birth History
Mr Alenzei describes Fatima's mother was "weak" during pregnancy. He said that she had low weight and was anaemic. Fatima was born by emergency, lower caesarean section at term due to concerns about the health of both mother and baby. He is unsure what her birth weight was but says that she was small when she was born. She was born in good condition and did not require resuscitation or admissions to a baby unit. She was, however, kept in hospital along with her mother for 1 week as she was small and "weak" but Mr Alenzei was unable to be clearer about the nature of her difficulties.
Past Medical History
Mr Alenzei describes that Fatima was admitted to hospital many times in the first 2 years of life due to difficulties with weakness, poor hearing and concerns about poor vision. He was not able, however, to be more specific about any illness she may have had. Fatima has never had any surgical procedures. Fatima has not had any previous investigations as to the nature of her difficulties according to Mr Alenzai.
18. The above content is referred to in the letter at page E20. At E46 is a passage in the Statement of Special Educational Needs for Fatima that the child had no accessed therapy services or attended a school placement prior to arriving in the UK. This may be the case, but the Judge did not say that the child had received therapy. The Judge found that the child had received medical treatment which is in accordance with the evidence the First-tier Tribunal were asked to consider.
19. In relation to the lack of schooling Ms Mclarthy made a forceful submission that if there was access to schooling, the only reason Fatima had been denied he same was as a result of a deliberate act by her parents. This is not a matter advanced before the First-tier Tribunal and there was insufficient evidence before the Judge in relation to his issue, and what was available, when compared with the other matters raised, was considered but did not prove the applicants case on this point.
20. No arguably legal error is made out in relation to ground 1.
21. Ground 2 asserts the Judge erred when considering the best interests of the children. The appellants assert the Judge failed to consider the needs of the children and in particular of Fatima who, it is said, has "serious health needs".
22. The Judge clearly considered the best interests of the children. At [137] it was found that all members of the family could return to live lawfully in Kuwait and that their status on return would not be as undocumented Bidoon.
23. The Judge considered whether there were any very significant obstacles to integration of the appellants into Kuwait and concluded there were not. The position of Fatima is considered at [140] in the following terms:
140. I realise that Fatima has health problems. It is, however, entirely unclear what ongoing medical treatment she requires or is receiving in the UK. There is no evidence before me to suggest that such medical treatment as she may need will not be available in Kuwait. Nor, in the light of my findings set out above, is there any evidence that the family would not be able to afford such treatment. The same applies in relation to ongoing medical treatment by the other children.
24. At [141] the Judge finds:
141. As set out above I have not been given a true picture of the real situation of this family whilst they were living in Kuwait. As I cannot rely upon the evidence given to me I cannot be satisfied that, for example, the children did not receive any schooling or that their economic situation was as it is claimed to be. In these circumstances I cannot be satisfied that there will be very significant obstacles to the reintegration of this family into Kuwait. I am not satisfied that any of the appellants meet the requirements of the Immigration Rules.
25. The finding of lack of a full and frank disclose of the situation of the family is one fully open to the Judge who notes, in addition to the maters raised in the adverse credibility findings recorded above, the failure of the appellant's representative, twice, to provide the signed authorisation that the Australian Government require in order to release details of the reunion application under their Freedom of Information Laws. Information setting out the basis on which the first appellant was granted asylum in Australia or in relation to his grant of Australian citizenship was not disclosed either. There is a consonant pattern of lack of candour in relation to the material provided and truth in the evidence given to the Judge.
26. Section E of the appellants' appeal bundle contains a number of documents relating to Fatima. These were considered by the Judge and the finding at [140] reflects the lack of any up to date information of the child's needs. The documents are historical in nature coving the period 2009-2013 with letters confirming appointments in 2014 and, for Abdulla, in 2015. The hearing was listed for April 2016 yet no up to date evidence was obtained.
27. In 2012 an Educational Psychologist found that:
Fatima has severe bilateral sensorineural hearing loss for which she is wearing hearing aids and a visual impairment for which she is wearing glasses. Fatima has significant speech and language difficulties and some delay in her gross motor skills according to paediatric overall development. Fatima has recently started at Penn school having had no proper experience of an educational placement. The Letter-R assessments would suggest that Fatima is experiencing significant learning difficulties, although it would be appropriate to renew her learning progress over time.
28. This issue was addressed in the respondents reasons for refusal letter at [52 - 61] outside the Immigration Rules. Reference is made to the availability of medical care in Kuwait and at [55] the author of the letter wrote:
55. You not adduced any evidence to suggest your daughter could not access treatment in Kuwait and the evidence that you have provided does not indicate that your daughters condition is at such a critical stage that it would be inhumane to remove you. Consequently, it is not accepted that your removal from the United Kingdom reaches the high threshold of severity to breach Article 3 of the European Convention on Human Rights on the basis of the medical condition.
29. At [62-63] of the refusal letter it is written:
62. It is noted that your daughter, Fatima has medical problem which have been examined in detail at paragraph 52. Given the fact that it is not accepted that you are Bidouns, it is considered that essential healthcare is available to you and your family, although it is acknowledged that the healthcare services in Kuwait may not be of an equal standard to that available in the United Kingdom.
63. It is also considered that your children's social well-being will be protected in their family unit. There has been no evidence put forward to suggest that your children's health would be affected in Kuwait. The children would be living with their parents, and in the absence of any evidence to the contrary, it is presumed that they would therefore be safe and well cared for.
30. This is a clear indication that the appellants were being put to proof of their claims in relation to the health needs of Fatima and other members of this family. Despite this the Judge noted the lack of up to date evidence of Fatima needs, which was accepted by Ms Mclarthy. It was also conceded before the Upper Tribunal that there was no evidence showing that medical services in Kuwait were insufficient to meet the needs of any members of the family.
31. It is accepted that the Judge did not say that the children were being punished for the actions of their parents and any such claim is not made out on the evidence or from a reading of the decision.
32. It is not made out that the Judge set the test for medical cases too high. The issue is whether there is a breach of Article 3 ECHR and the same was not proved. This is arguably the only decision the Judge could make on the basis of the limited evidence made available.
33. The Judge did consider the impact upon Fatima of her removal from the UK at [151] where it is written:
151. In the case of Fatima she is receiving holistic treatment in the UK, so far as I can tell in the absence of updated medical reports, which is likely to continue if she remains in the UK. It seems likely that it would be advantageous to her to remain in the UK where the various professionals are aware of her problems and, indeed, of her. Thus, from a medical point of view I consider it likely to be advantageous for her to remain in the UK. That said, however, I am satisfied that she will be able to access healthcare in Kuwait. As stated there is no evidence before me that the standard will not be adequate. Thus the relative merits of her staying in the UK for that purpose and returning to Kuwait may be small. I also bear in mind that in medical cases the threshold for Article 8 to be engaged, is extremely high, as it is in respect of Article 3 (see, e.g. GS India v secretary of state for the Home Department [2015] EWCA Civ 40 and NA Pakistan and Others [2016] EWCA Civ 662).
34. It was also conceded that the impact of removing Fatima was not spelt out in the evidence but it was submitted that as a result the Judge should have looked at the same. A reading of the decision shows this is what the Judge did and it has not been made out that it is legal error for the Judge not to embark upon an investigative process of his own. Proceedings in the Tribunal are by their nature adversarial and the appellants' are represented. The Judge was entitled to assume that all the evidence the appellants were seeking to rely upon will have been disclosed and to make a decision based upon such material. It has not been made out that this is one of the rare cases in which it may have been appropriate for the Judge to have investigated the matter further, especially when the appellants appear to have been withholding facts/evidence themselves.
35. The submission the Judge failed to consider the merits of the case outside the Rules is not made out. The appeals were dismissed under the Immigration Rules and on protection and human rights grounds, see Notice of Decision section. In [157] the Judge finds:
157. In these circumstances I am entirely satisfied that there are no such compelling circumstances or exceptional circumstances as would require me to undertake a freestanding Article 8 assessment outside the Rules. Had I done so, however, I would have had no hesitation whatsoever in concluding that, balancing all the factors, the decision to deport and/or removal all of these appellants was entirely proportionate. The public interest in maintaining effective immigration control vastly outweighs any factors there may be in favour of these appellants.
36. The assertion the Judge failed to appreciate that the family will be separated/split has no arguable merit as the Judge found that the family can all return lawfully to Kuwait [137]. The evidence did not show otherwise.
37. Ms Mclarthy was not the advocate before the First-tier Tribunal or the person responsible for the preparation of the case. It is arguable that her submissions were made on the basis of the evidence that she considered should have been made available rather than that which was. On the basis of the evidence provided to the Judge, from all sources, no arguable legal error material to the decision to dismiss the appeal has been made out.
Decision
38. There is no material error of law in the First-tier Tribunal Judge's decision. The determination shall stand.
Anonymity.
39. The First-tier Tribunal did not make an order pursuant to rule 45(4)(i) of the Asylum and Immigration Tribunal (Procedure) Rules 2005.
I make no such order pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008.

Signed??????????????????.
Upper Tribunal Judge Hanson

Dated the 6 February 2017