Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: OA/08123/2014
OA/08129/2014
OA/08126/2014
OA/10373/2014
OA/10375/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 9 August 2016
On 18 August 2016

Before

UPPER TRIBUNAL JUDGE WARR

Between

ENTRY CLEARANCE OFFICER - AMMAN
Appellant
and

Fatima [A]
[R H]
[M H]
[H H]
[Z H]
(NO ANONYMITY DIRECTION MADE)
Respondents

Representation:
For the Appellant: Mr C Tarlow, Home Office Presenting Officer
For the Respondents: Mr A Adebayo, Solicitor, A2 Solicitors

DECISION AND REASONS
1. This is the appeal of the Entry Clearance Officer but I will refer to the original appellants as the appellants herein. They seek family reunion in this country to join Mr [H], the sponsor, husband of the first-named appellant and father of the remaining appellants. Mr [H] has refugee status in this country. The first-named appellant is claimed to be a Kuwaiti Bidoon. A reference hereinafter to the appellant is a reference to the first named appellant.
2. The respondent refused the applications for settlement on the basis that he was not satisfied that there had been any contact between Mr [H] and the first-named appellant and accordingly that the appellant was not the spouse of a person granted refugee status and further that the respondent was not satisfied that the parties intended to live together in the United Kingdom. The respondent noted that the appellant claimed to be a Kuwaiti Bidoon but a point was taken that in a previous application she said she had been smuggled into Jordan from Iraq in a car stating that the smuggler knew people and she had entered Jordan undocumented. The respondent considered that having made checks with the relevant authorities both the appellant and her children had entered Jordan in November 2012 on valid Iraqi passports. She had not provided any information concerning her Iraqi nationality or why she now claimed to be stateless. Given that she had entered Jordan on Iraqi passports and had not submitted these documents to the Entry Clearance Officer he was not satisfied that the appellant was genuinely stateless. No evidence had been provided about how she had entered Jordan and how she had been living in Jordan without valid national documents. The application fell to be refused under paragraph 320(3) and 320(10) of HC 395. The respondent was not satisfied about the appellant's claimed identity. The refusal was on 26 May 2014.
3. The appellants appealed and their appeals came before a First-tier Judge on 4 December 2015. They were then represented as they are now by Mr Adebayo. The respondent was represented by Mr Williams, Presenting Officer. On the point about the Iraqi passports it was the appellant's case that she had been advised by the sponsor that she and the children could apply to the British Embassy in Kuwait to join him under the family reunion policy. However, it was said that the British Embassy in Kuwait did not entertain visa applications from undocumented Bidoons who did not have Article 17 passports. However, visa applications would be accepted by the British Embassy in Amman, Jordan. An agent was found to take them there and they had arrived in November 2012. They had applied for visas at the British Embassy but these had been refused on 26 May 2014. The agent who had brought the appellants to Jordan had provided them with Iraqi passports but the appellants had no idea how the agent had obtained them or whether they were valid. The family were now living in Amman where they rented a house. The sponsor had visited the family in 2013 and 2014. Indeed he had been in Jordan at a previous hearing of an appeal involving the appellants on 24 January 2014. He had not been present because he had been told by his lawyer that the hearing had been on 10 March 2014. Mr [H] produced two birth certificates for his wife. A point was taken by Mr Williams that these certificates showed two different dates of birth for the first appellant. Mr Williams did not accept the point being made about the sponsor's failure to attend the previous hearing. It was, however, accepted that the second, third, fourth and fifth appellants were the children of Mr [H] and his wife.
4. In his findings of fact the judge refers to relevant country guidance and sets out an extract from NM (documented or undocumented Bidoon: risk) Kuwait CG [2013] UKUT 00356 (IAC). The previous country guidance in respect of documented/undocumented Bidoon was maintained but the crucial document was a security card rather than civil identification documents. Undocumented Bidoon faced a real risk of persecution and those Bidoon who did not register between 1996 and 2000 and hence did not obtain security cards were as a consequence undocumented Bidoon although this must be seen in the context of the evidence that most Bidoon carried security cards. The determination continues as follows:
"62. There is no evidence the Appellants had obtained security cards and it is said they do not have Kuwaiti passports. What has been produced is a 'birth certificate' for the first Appellant together with a translation, showing a date of birth of 03/09/1399 Hijri, said to correspond to 25/07/1979, the document quotes as the place of birth Alfarwania, which is situated in Kuwait. The document is said to have been written on the 14th August 1979. At the hearing Mr [H] produced another document also with a translation; the original pink coloured document is referred to in the translation as, 'Ministry of Health-Notification of Birth.' In that document the first Appellant's date of birth is quoted as 20/07/1979 and the date of the document as being the 27/07/1979. The Country of Birth is referred to as Kuwait and the nationality of the first Appellant's parents as being Bedoon.
63. Mr Williams points to the discrepancy in the date of birth shown on the two documents with Mr [H]'s evidence being that the first Appellant's correct date of birth is 25/07/79 and the reference to the 20/07/79 was a mistake.
64. There is also reference in NM to the difficulties faced by undocumented Bidoon's in obtaining certain documents such as birth certificates and assessing certain schooling. In this case the first Appellant relies on a number of school documents to show she was educated in Kuwait.
65. The Appellant's account of being Bidoons is also challenged on the basis of the first Appellant's account of their journey to Jordan with the Respondent stating in the refusal letter that enquiries with the relevant authorities indicated the Appellant's had travelled on valid Iraqi passports. I was not provided with details of precisely what enquiries had been made of which authority or what evidence those authorities had been relied upon. I was however provided with a LandInfo report dated 23 January 2014 entitled, 'Iraq: Travel documents and other identity documents'. Included at paragraph 5.1 of the report is the following:
"Iraqi passports are relatively easy to manipulate. The Norwegian police have discovered many false Iraqi passports in the G-series and A-series?.'
66. In asserting that the Appellant's may be Iraqis Mr Williams also referred to the lengthy period of time Mr [H] spent in Iraq in April 2015.
67. I accept there are some discrepancies in the Appellant's case regarding such issues as dates of birth, schooling and travel to Jordan, however I have also seen a copy of Mr [H]'s Immigration Status Document and his UK passport. The Personal Details section of the Immigration Status Document, issued by the UK Border Agency, describes Mr [H]'s nationality as 'Kuwait Bidoun' and his passport records him as, 'Stateless Refugee-1951 UN.
68. The Respondent's bundle of documents in respect of the first Appellant includes DNA evidence which shows that Mr [H] and the first Appellant are the parents of the second, third, fourth and fifth Appellant's. I consider this indicates the first Appellant were in a relationship and given Mr [H] status as Kuwaiti Bidoun, having taken into account the various discrepancies I have identified, I am prepared to accept on the balance of probabilities that the first Appellant is an undocumented Bidoon and that is also the position so far as the remaining Appellants are concerned.
69. The next issue so far as the first Appellant is concerned relates to whether she is the spouse of a person granted refugee status and that she and her spouse intend to live together in the UK. There is reference in the first Appellant's refusal letter of the 20th February 2013 to a marriage certificate having been produced, although the ECO had been unable to verify whether it was genuine. I have not been able to locate such a document in the papers before me in respect of this appeal. Mr [H] in his witness statement states that he and the first Appellant were married at the Al Hamdi Mosque in Kuwait on the 18th March 2000. Mr [H] states they were not allowed to marry at the Kuwait Marriage Registry as they are undocumented Bidoons.
70. Having accepted the first Appellant and Mr [H] are undocumented Bidoons, I consider it plausible that there may be no official state documents confirming their marriage. The DNA evidences [sic] confirms they are the parents of 4 children, the eldest of which was born on the 1st April 2004. I have also been shown an extract from Mr [H]'s asylum interview which took place on the 17th January 2010 in which he names the first Appellant as his spouse and gives the date of their marriage as the 18th March 2000. On the balance of probabilities I am prepared to accept that the first Appellant was married to Mr [H] on the 18th March 2000.
71. As I have indicated I have seen a copy of Mr [H]'s Refugee Status Document issued by the UKBA. The first Appellant's and Mr [H]'s youngest child was born on the 19th March 2009. Mr [H]'s evidence is that he left Kuwait because of persecution on the 13th December 2010 to come to the UK. Given the dates of birth of the children, particularly the youngest, I accept that the Appellants and Mr [H] were living together as one family unit immediately prior to Mr [H] leaving Kuwait."
5. The judge then considered the issue of whether the marriage between the first appellant and Mr [H] was subsisting and resolved that matter in the parties' favour and that the children were undocumented Bidoons and that they were the children of the sponsor and the first appellant. They were part of Mr [H]'s family unit at the time he left Kuwait and there had been contact since through Mr [H]'s visits to Jordan.
6. The judge accordingly allowed the appeals of all the appellants.
7. The Entry Clearance Officer applied for permission to appeal on the point that had been taken under paragraph 320(3) and (10) of the Rules. This was a mandatory refusal and should have been dealt with as a preliminary issue. Such an issue could not be defeated by a favourable credibility finding. Reference was made to AM (Somalia) [2009] UKAIT 00008. Permission to appeal was granted on this point by the First-tier Tribunal.
8. Mr Tarlow pointed out that the Entry Clearance Officer had made clear that there were issues with the documentation. The family had used apparently valid Iraqi documents. The judge had failed to address the point. It was a narrow issue and reference was made to AM (Somalia).
9. Mr Adebayo submitted that there was no material error of law. There were several documents before the First-tier Judge. The Rules provided not only for a valid national passport but also other documents. The judge's decision had been satisfactorily reasoned on the point and reference had been made to a LandInfo report. The first appellant had submitted a marriage application with her previous application to the Entry Clearance Officer. Mr Adebayo made reference to the IDIs in relation to family reunion. Among the documents that could be put forward were passports, national identity cards and other official documents which included as an example school identification cards. There was also reference to a marriage certificate as being an original document which might be unavailable to submit with an application. The first appellant's birth certificate had been put before the First-tier Judge. There was a difficulty in obtaining official documentation.
10. Mr Avery submitted that the judge had made no findings on the issue and had identified discrepancies in the evidence. The evidence was pretty sketchy, he submitted.
11. He could not establish what documentary evidence had been before the Entry Clearance Officer - he had some untranslated documents. Mr Adebayo said that there was a marriage certificate and birth certificate and copies had not been returned by the Entry Clearance Officer.
12. At the end of the submissions I reserved my decision. I remind myself that I can only interfere with the decision of the First-tier Judge if it was materially flawed in law.
13. The sole issue in this case concerns the point taken by the respondent under paragraph 320(3). This issue was dealt with by the Tribunal in AM (Somalia). Just as in that case the point was not in fact taken by the respondent at the hearing as a preliminary issue. The first point taken by Mr Williams was whether the appellant's marriage was genuine and subsisting. The judge does, however, record Mr Williams taking the point during the course of submissions. In relation to the birth certificates the judge records Mr Williams taking a point on the discrepancy in the dates of birth shown for the first appellant on the certificates but not that they otherwise could not qualify for consideration under the Immigration Rules which refer to a "passport or other document satisfactorily establishing" an applicant's identity and nationality. As the Tribunal said in paragraph 11 of the decision, it was right that paragraph 320(3) made refusal of an application mandatory -
"... if the circumstances set out in that paragraph apply. But the fact that the refusal is mandatory does not of course mean that it is not the subject of appeal. On appeal it is for an Immigration Judge to decide whether the circumstances said to cause paragraph 320(3) to apply do in fact apply to the case."
14. The judge did turn his attention to the documentation relied on by the appellants at the outset of his findings of fact and I have reproduced these above. The judge refers to the marriage certificate which had been produced which was not available for him in the papers which he had been provided with. Mr Avery was unable to locate a copy.
15. Of course it is difficult as the judge found for Bidoon who are undocumented to put forward official documentation. Indeed he accepted that it was plausible that there might be no official state documents confirming the marriage between the parties. The judge nevertheless gave careful consideration to the documentary evidence relied on. In this case the first-named appellant was married to Mr [H], whose nationality was stated in his immigration status document as "Kuwait Bidoon".
16. Although Mr Williams took issue with the dates on the birth certificates he did not submit that they were not evidence that could be relied upon by the first-named appellant to satisfy the requirements of paragraph 320(3). It is plain that the judge considered the submission in the light of the country guidance and the difficulties faced by undocumented Bidoon in obtaining certain documents such as birth certificates. The judge did note that the first-named appellant had relied on school documents to show she was educated in Kuwait.
17. The judge considered the submission made on the basis of the appellants having travelled to Iraq on valid Iraqi passports but had not been provided with details of precisely what enquiries had been made of which authorities or what evidence those authorities had relied upon. He did give consideration to the background material in relation to such documents at paragraph 65 of his decision. The important point is that the judge accepted the material that the appellants had relied upon as being satisfactory in the circumstances of this case to show that the appellant was indeed an undocumented Bidoon. It is plain that he rejected the submission that the appellants might be Iraqis based on the period of time Mr [H] had spent in Iraq in 2015.
18. Even though the point had not been relied on by the respondent at the hearing as the principal issue the judge in my view did satisfactorily deal with the matter in the course of his determination. Paragraph 320(3) is drafted in a way which caters for undocumented Bidoon who have special difficulties in establishing their case for obvious reasons in the light of the background material.
19. I have given careful attention to Mr Avery's customarily clear submissions on the narrow issue he identified but I am satisfied that the judge did not materially err in law in concluding as he did. No point is taken by the respondent on the other findings made by the judge. Accordingly I dismiss the appeal of the Entry Clearance Officer and direct that the decision of the First-tier Judge shall stand.

Notice of Decision
Appeal dismissed, decision of First-tier Judge to stand.

Anonymity Order
The First-tier Judge made no anonymity order and having considered the matter I make none.

Fee Award
The judge made a fee award in the event that a fee had been paid or might be payable. I see no reason to disturb the judge's fee award in the circumstances of this case.

Signed Date 17 August 2016

G Warr
Judge of the Upper Tribunal