Tribunal decisions

The decision

Upper Tier Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/03532/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision Promulgated
On 30 March 2017
On 11 April 2017

Before

Deputy Upper Tribunal Judge Pickup

Between

Salim Asi Shafi
[No anonymity direction made]
Appellant
and

Secretary of State for the Home Department
Respondent

Representation:
For the appellant: Mr A Adebayo, instructed by A2 Solicitors
For the respondent: Mr S Staunton, Senior Home Office Presenting Officer

DECISION AND REASONS
1. The appellant, Salim Asi Shafi, date of birth 11.9.74, is a citizen of Kuwait.
2. This is his appeal against the decision of First-tier Tribunal Judge Cassel promulgated 3.10.16, dismissing on all grounds his appeal against the decision of the Secretary of State, dated 30.3.16, to refuse his claim for international protection.
3. The Judge heard the appeal on 9.9.16.
4. First-tier Tribunal Judge Osborne refused permission to appeal. However, when the application was renewed to the Upper Tribunal, Upper Tribunal Judge Perkins granted permission to appeal on 9.2.17.
5. Thus the matter came before me on 30.3.17 as an appeal in the Upper Tribunal.
Error of Law
6. For the reasons summarised below, I found such error of law in the making of the decision of the First-tier Tribunal as to require the decision of Judge Cassel to be set aside and remade by allowing the appeal.
7. In essence, the appellant’s claim is to be at risk on return as an undocumented Bidoon. It is common ground that if he is an undocumented Bidoon, he will be at risk on return. The persecution of undocumented Bidoon is well-documented and need not be rehearsed here.
8. The appellant’s claim was previously considered and refused, and on 24.3.11 his appeal dismissed in the First-tier Tribunal (AA/15744/2010). In that decision Judge Shimmin made adverse credibility findings because his account of having documentation was said to be inconsistent with the objective evidence. The appellant had claimed to have been issued with an alien reporting card in 2000, but that in 2001 it was removed. He claimed that the card scheme had started in 1996 but was stopped in 2000. He later corrected that to say 2003. At [33] to [38] of that earlier decision Judge Shimmin cited the COIR to the effect that alien reporting cards were issued by the government until the middle of 2003, when they ceased to renew them. The appellant had also said that he did not obtain a birth certificate until 2007 and that his family had not registered in the 1965 census. His case was that those whose families registered in 1965 were the documented Bidoon, but his family had not registered.
9. Judge Shimmin found the appellant’s account of obtaining the green card departed from the objective evidence and thus that his credibility had been damaged.
10. The appellant submitted a further application in 2013, which was refused in 2014.
11. In February 2016 the appellant made yet another application to be recognised as an undocumented Bidoon, submitted a DNA report proving that he is the sibling of Faisal Asi Shafi Al-Enezi. This brother was recognised by the Secretary of State as an undocumented Bidoon. However, this appellant’s claim was again refused, giving rise to the appeal to the First-tier Tribunal which is the subject of this appeal to the Upper Tribunal.
12. Although Judge Cassel accepted that the appellant is the brother of Faisal, at [25] a distinction was drawn between the two cases. For some reason the judge considered that the brother’s imprisonment was probably material to his own application. However, there appears to be no basis for such a distinction. The Secretary of State accepted that the brother was an undocumented Bidoon; imprisonment does not change that status.
13. Judge Cassel also appears to justify the distinction by drawing on the credibility findings of Judge Shimmin and finding that the mere assertion that his brother was an undocumented Bidoon was insufficient to disturb Judge Shimmin’s credibility findings. Mr Adebayo’s submissions to Judge Cassel pleaded a comparison between [83] of NM (documented – undocumented Bidoon; risk) Kuwait CG [2013] UKUT 00356 (IAC) and the appellant’s evidence as to the issue of and inability to renew a green card, but this was not accepted. The appellant’s asylum claim was summarily refused in two short paragraphs, essentially adopting the findings of Judge Shimmin and declining to depart from them.
14. The Secretary of State’s refusal decision in this case cites AA (Somalia) v SSHD [2007] EWCA Civ 1040, in which the appellant in that case sought to rely on the grant of refugee status of another, related, individual. The central issue in the appeal was how far, and with what effect, are the so-called Devaseelan guidelines to be applied in cases involving different applicants, but closely related factual circumstances. However, the citation is partial only and appears to concentrate on the findings of the Upper Tribunal that were the subject of the appeal to the Court of Appeal, rather than what the Court of Appeal itself held.
15. At [17] of AA (Somalia) the Court of Appeal cited the Upper Tribunal’s decision from [60] onwards: “Returning to the reasons which might be given for citing a decision or determination made in an application or appeal by a related claimant, there is surely no reason, in principle or authority, to give the previous determination evidential value to the case now under consideration. The previous determination is not the result of the application of the rigorous requirements of the criminal law; and the fact that a previous court or other decision-maker has reached a view on facts which are in issue in the present appeal is not of itself any evidence as to those facts. On the other hand, in the general interests of good administration, it is probably true to say that decisions should not be unnecessarily divergent. It is that principle of good administration which, so far as we can see, provides the sole basis in logic or on authority for saying that the result of the previous litigation may be relevant in the present appeal.” It is this part that was repeated in this appellant’s refusal decision.
16. The Upper Tribunal saw no basis for the assertion that a determination in one appellant’s case has any binding effect on any other individual. “The previous determination stands as a determination of the issues between the claimant in that case and the Secretary of State…. The earlier decision can be nothing more than the background or the starting point for the determination of a claim made by a different person altogether.”
17. In AA (Somalia) the Court of Appeal concluded: “In cases where the parties are different, the second Tribunal should have regard to the factual conclusions of the first Tribunal but must evaluate the evidence and submissions as it would in any other case. If, having considered the factual conclusions of the first Tribunal, the second Tribunal rationally reaches different factual conclusions, then it is those conclusions which it must apply and not those of the first Tribunal… the first decision is not binding and… it is the fundamental obligation of the judge independently to decide the second case on its own individual merits.”
18. The situation in the present appeal is somewhat different. First, the finding that the brother is an undocumented Bidoon was not a conclusion of an earlier and different Tribunal based on an assessment of contested evidence, but rather the concession of fact of the Secretary of State herself. That is not the situation discussed in AA (Somalia) of a different Tribunal reaching a different finding of fact in respect of a relative of the appellant in question.
19. For the Secretary of State, Mr Staunton accepted that the concession of the Secretary of State in relation to the brother made it difficult to defend the refusal decision and the decision of Judge Cassel; he was unable to advance any contrary argument and merely relied on the Rule 24 reply of 27.2.17 which asserts that the judge was entitled to find that the brother’s status was insufficient to go behind the previous adverse credibility findings and that the judge did not have to accept at face value the assertion that the appellant is an undocumented Bidoon.
20. In granting permission to appeal, Judge Perkins found it arguable that the judge may not have appreciated that being “undocumented” is sufficient to make a Bidoon a refugee, and that it was also arguable that the judge erred in failing to revisit the adverse findings of Judge Shimmin. Permission was granted on these two grounds only, as accepted by Mr Adebayo in his submissions to me.
21. Having carefully considered the submissions of Mr Adebayo both to the First-tier Tribunal and to me, I am satisfied that Judge Shimmin made a material error of law in the conclusion as to the appellant’s documentation or lack of it, and that in turn that error was perpetuated by Judge Cassel in effectively ignoring the submission and adopting the conclusions of Judge Shimmin.
22. It is clear from [24] of the decision that the judge was in error to state that it was a mere assertion by the brother that the appellant was undocumented was insufficient to revisit the earlier findings. As stated above, it was not a mere assertion but a concession by the Secretary of State that the brother is an undocumented Bidoon. That has to be at the very least highly relevant to the issue in the present appeal. As Judge Perkins stated in granting permission to appeal, it is not clear how one brother can be undocumented and the other not.
23. The language analysis resulted in the Secretary of State’s concession that the appellant was from Kuwait. All the appellant had to establish is that he is an undocumented Bidoon. That was the same for his brother; the fact or otherwise of his alleged detention is irrelevant to that fact. It is not clear that Judge Cassel appreciated this. Two witnesses confirmed that the appellant is an undocumented Bidoon, one of whom was his brother. I also understand that since the decision of Judge Cassel, another brother has been accepted by the Secfetary of State as an undocumented Bidoon.
24. At the First-tier Tribunal Mr Adebayo argued that Judge Cassel was entitled to and should have departed from Judge Shimmin’s findings, because they was decided before NM and were not only inconsistent with NM, but with the country background information as to the issue and renewal of the green card. The appellant’s case had been that he was issued with a green or security card, but was not able to renew it after 2001. Judge Shimmin found from the objective evidence that the cards were in use until 2003. However, NM confirmed that the cards were issued between 1996 and 2000, which was entirely consistent with the appellant’s case, and the background information set out below confirms that some were unable to renew cards previously issued.
25. The CIG on Bidoons, dated July 2016, at 2.3.12 confirms that a person may hold a range of documents and yet still be regarded as undocumented if they do not hold a security card. In general security cards have to be renewed annually or biannually. Even if a person held a security card, they may still be de facto undocumented where they are unable to renew the card. Where it is claimed that there is an inability to renew or that there is a security block or flag in place, the decision maker must test whether the person is prevented from receiving the ‘privileges’ available to Bidoon who have ‘security cards,’ the onus being on the person to demonstrate that they are undocumented. Where the person is unable to renew their security card or is subject to a security block and unable to access basic services, then they should be treated as de facto ‘undocumented’ and therefore at real risk of discrimination so severe that it amounts to persecution (CIG 2.3.14). Judge Cassel did not take account of this country background information.
26. Judge Cassel merely adopted Judge Shimmin’s assessment of how the appellant obtained his green card. At [37] of his decision Judge Shimmin stated that a person had to be registered in the 1965 census to obtain the ‘green card,’ and thus concluded that the appellant’s account was not true and his credibility undermined. However, the CIG at 6.4.3 explains that there are two types of review card issued to every person over the age of 5 who is registered with the central system to resolve illegal residents’ status. The first has a duration of 2 years and is issued to those registered in the 1965 census or have proof of long-term residence in the country from that year or prior to it. The second type has a one-year duration and issued to the remaining groups who did not register in the 1965 census and do not have proof of long-term residence from that year or prior to it. It is this second type that the appellant claims he was issued with.
27. The appellant also claimed that he had been unable to renew his green card, but as is clear from 2.3.12, inability to renew renders a person a de facto undocumented Bidoon. It follows that his case is entirely consistent with the country background information.
28. These two significant factors in the explanation of how security or green cards are issued and renewed were part of Mr Adebayo’s submissions to the First-tier Tribunal, but were essentially rejected in preference to the findings of Judge Shimmin. However, it is now clear that Judge Shimmin’s statements as to the obtaining of a green card were in error of fact. The country background evidence, together with its explanation in NM, rendered the findings of Judge Shimmin unsafe and thus they they should not have been relied on by Judge Cassel but revisited, as Mr Adebayo submitted. However, his submissions were rejected.
29. It follows that in the light of the above, the reliance on Judge Shimmin’s previous findings of fact were in clear error, inconsistent as they were with the caselaw and the country background information. In addition, the Secretary of State conceded that the appellant’s brother is an undocumented Bidoon, and has more recently accepted that a further brother is an undocumented Bidoon. It is hard to see how the refusal decision in this appellant’s case can be justified in the light of those concessions. Even the concession in relation to one brother should have given Judge Cassel cause to revisit the findings of Judge Shimmin. To decline to do so on this factual matrix was an error of law.
30. It is clear that the decision of the First-tier Tribunal cannot stand and must be set aside. In the light of the matters set out above, both the consistency of the appellant’s case with the country background material and the concessions of the Secretary of State, I am satisfied that the appellant’s appeal should have been allowed and can see no basis upon which it can be resisted. Mr Staunton did not resist the remaking of the decision by immediately allowing the appeal, and I do so for the reasons already set out.
Conclusions:
31. The making of the decision of the First-tier Tribunal did involve the making of an error on a point of law such that the decision should be set aside.
I set aside the decision.
I re-make the decision in the appeal by allowing it

Signed

Deputy Upper Tribunal Judge Pickup

Dated

Anonymity
I have considered whether any parties require the protection of any anonymity direction. No submissions were made on the issue. The First-tier Tribunal did not make an order.
Given the circumstances, I make no anonymity order.

Fee Award Note: this is not part of the determination.
In the light of my decision, I have considered whether to make a fee award pursuant to section 12(4)(a) of the Tribunals, Courts and Enforcement Act 2007.
I have had regard to the Joint Presidential Guidance Note: Fee Awards in Immigration Appeals (December 2011).
I make no fee award.
Reasons: No fee is payable and thus there can be no fee award.

Signed

Deputy Upper Tribunal Judge Pickup

Dated