Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: pa/02316/2017

THE IMMIGRATION ACTS

Heard at Bradford
Decision & Reasons Promulgated
On 14th December 2017
On 22nd January 2018

Before

DEPUTY UPPER TRIBUNAL JUDGE D N HARRIS

Between

Salem Naser Al Osaimi
(ANONYMITY DIRECTION not made)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr M Karnik, Counsel
For the Respondent: Mrs R Petterson, Home Office Presenting Officer

DECISION AND REASONS

1. The Appellant is a Kuwaiti Bidoon born on 26th June 1951. The Appellant claims to have arrived in the UK on 30th September 2016 and claimed asylum on that date. The Appellant's claim for asylum was dismissed by the Secretary of State on 20th February 2017. It is the Appellant's claim that on return he would be killed or detained by the Kuwaiti authorities as he is a Bidoon that took part in a protest asking for Bidoon rights. Further he contends that he has evaded the authorities since they released him from detention on condition that he would supply them with information. The Secretary of State acknowledged and accepted that the Appellant was a Kuwaiti Bidoon. What he did not accept was that the Appellant was an undocumented Bidoon.
2. The Appellant appealed and the appeal came before Judge of the First-tier Tribunal Hillis on 3rd April 2017. In a decision and reasons promulgated on 20th April 2017 the Appellant's appeal was dismissed on all grounds.
3. On 20th April 2017 the Appellant lodged Grounds of Appeal to the Upper Tribunal. It was accepted in those Grounds of Appeal the sole issue in the appeal was whether the Appellant was or was not an undocumented Bidoon. It was acknowledged by the First-tier Tribunal Judge if the Appellant was able to establish that he was an undocumented Bidoon then the appeal would be allowed. It was contended in the Grounds of Appeal that the judge had recognised the standard to which the Appellant had to establish that he was an undocumented Bidoon was to the lower standard but however he had failed to apply that standard in the decision. It had been noted that the Appellant's nephew Nasir Ali had been granted refugee status as an undocumented Bidoon but that at paragraph 30 the judge had concluded that background information did not support the fact that ALL extended family members were undocumented Bidoons. It was contended that the judge had erred in failing to explain why the Appellant could not as a result be an undocumented Bidoon.
4. On 4th September 2017 Deputy Upper Tribunal Judge Chapman (sitting as a Judge of the First-tier Tribunal) granted permission to appeal. Judge Chapman noted that there were effectively five assertions that the judge had materially erred in law:-
(1) In failing to apply the lower standard of proof that the Appellant had to establish that he is an undocumented Bidoon.
(2) In failing at paragraph 30 to explain why the Appellant could not be an undocumented Bidoon given that his nephew, Nasir Ali, had been granted refugee status in such circumstances.
(3) In concluding, absent any evidential basis, that the Appellant flushed his wife's and family's passports in the toilet at Heathrow.
(4) In failing to give the Appellant the benefit of he doubt in light of the limited documentary evidence rather than rely on some inconsistencies on the fact that the Appellant's wife did not give evidence.
(5) In focussing on the issue of the passports when the focus should have been on whether the Appellant had a security card.
5. It is with regard to this fifth ground that Judge Chapman considered that there was arguable merit in that the country guidance decision of NM made clear that the material document when assessing whether or not a Bidoon is documented or undocumented is a security card and that the judge made no findings of fact on this fundamental issue.
6. On 2nd October the Secretary of State responded to the Grounds of Appeal under Rule 24 pointing out that the judge did not accept that the Appellant's account regarding the disposal of the passports and the judge was entitled to reject the Appellant's explanation and clearly had stated the reason for doing so. It is on that basis that the appeal comes before me to determine whether or not there is a material error of law in the decision of the First-tier Tribunal Judge. The Appellant appears by his instructed Counsel Mr Karnik. The Secretary of State appears by her Home Office Presenting Officer Mrs Petterson.
Submissions/Discussions
7. Mr Karnik submits that the judge focuses on the issue of the passport and that he should have looked at the documentary evidence relating to the Appellant's purported security card and that this would have been a relevant analysis rather than focussing on the passport in the event that he was considering country guidance. He submits that the judge's finding at paragraph 36 is curious (Counsel's phrase) and that the focus should therefore have been on country guidance and what makes somebody undocumented. He also considers that the finding made at paragraph 34 was speculative.
8. Mrs Petterson points out that the judge did give consideration and noted the position with regard to the security card. She points out that if the judge concluded, as he had, that the Appellants had passports this is important because without some sort of status the Appellant would not have been in a position to get them. She takes me to paragraphs 32 and 33 of the judge's decision and submits that it was open to the Appellant as he so wished to put in documentary evidence regarding his passport.
The Law
9. Areas of legislative interpretation, failure to follow binding authority or to distinguish it with adequate reasons, ignoring material considerations by taking into account immaterial considerations, reaching irrational conclusions on fact or evaluation or to give legally inadequate reasons for the decision and procedural unfairness, constitute errors of law.
10. It is not an arguable error of law for an Immigration Judge to give too little weight or too much weight to a factor, unless irrationality is alleged. Nor is it an error of law for an Immigration Judge to fail to deal with every factual issue of argument. Disagreement with an Immigration Judge's factual conclusion, his appraisal of the evidence or assessment of credibility, or his evaluation of risk does not give rise to an error of law. Unless an Immigration Judge's assessment of proportionality is arguable as being completely wrong, there is no error of law, nor is it an error of law for an Immigration Judge not to have regard to evidence of events arising after his decision or for him to have taken no account of evidence which was not before him. Rationality is a very high threshold and a conclusion is not irrational just because some alternative explanation has been rejected or can be said to be possible. Nor is it necessary to consider every possible alternative inference consistent with truthfulness because an Immigration Judge concludes that the story is untrue. If a point of evidence of significance has been ignored or misunderstood, that is a failure to take into account a material consideration.
Findings on Error of Law
11. Mr Karnik in his submissions indicate the judge makes no reference to the country guidance authority of NM. I have read the First-tier Tribunal Judge's decision and I agree with Mr Karnik's submission. However against this it is the contention made forcefully by Mrs Petterson firstly that it was open to the Appellant to put in documentary evidence regarding his passport and secondly it is her submission on behalf of the Secretary of State that in order to obtain a passport the Appellant must have had an ID card and therefore the judge had made correct findings.
12. The whole issue comes down one of credibility. This is an experienced judge who has given careful consideration to the following aspects. Firstly the evidence of the Appellant's nephew and the contention that as a blood relative he was also an undocumented Bidoon. The judge has addressed this issue at paragraph 30 and made findings that he was entitled to that not all extended family members would be undocumented as much would depend on whom each member of the family has married.
13. Secondly, the judge thereinafter goes into detail with regard to the factual basis relating to the mutilated passports found in the toilet at Heathrow. The judge considers this at paragraphs 32 to 33 and makes findings at paragraphs 34 to 40 that he was entitled to. The judge has in fact given very full and detailed consideration of this issue and the fact that he has made no specific reference to the country guidance authority does not mean that he has not given due and proper consideration to the law and made findings that he was not entitled to.
14. In such circumstances I am satisfied that there is no material error of law disclosed in the decision of the First-tier Tribunal Judge and the submissions made amount to little more than disagreement with the findings by the judge. Consequently the correct approach is to find that there is no material error of law in the decision of the First-tier Tribunal Judge and to dismiss the appeal.
Decision

The decision of the First-tier Tribunal Judge contains no material error of law and the Appellant's appeal is dismissed and the decision of the First-tier Tribunal Judge is maintained.

No anonymity direction is made.

Signed Date 19 January 2018

Deputy Upper Tribunal Judge D N Harris

TO THE RESPONDENT
FEE AWARD

No application is made for a fee award and none is made.

Signed Date 19 January 2018

Deputy Upper Tribunal Judge D N Harris