Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/12350/2016

THE IMMIGRATION ACTS

Heard at Eagle Building, Glasgow
Determination Promulgated
On 5th January 2018
On 19th January 2018

Before

UPPER TRIBUNAL JUDGE COKER

Between

SALAH SAYAH (aka SALAH MOHAMMED SAYAH AL BADRI)
Appellant
And

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr S Winton, instructed by Latta and Co solicitors
For the Respondent: Ms R Petterson, Senior Home Office Presenting Officer

DETERMINATION AND REASONS

1. In a decision promulgated on 21st September 2017, First-tier Tribunal judge McGavin dismissed the appellant's appeal against the refusal of his protection and human rights claims.

2. The appellant sought and was granted permission to appeal on the grounds that it was arguable the First-tier Tribunal judge had erred in his assessment of and reference to evidence relating to undocumented Bidoon and that the judge had, contrary to what he recorded in the decision, been directed to evidence that supported the appellant's claim.

3. The respondent's Rule 24 response asserted that judge's error, if it existed, was immaterial. The appellant had failed to show that there were cogent reasons to depart from the country guidance case of NM (documented/undocumented Bidoon: risk) Kuwait CG [2013] UKUT 00356 and the judge had provided adequate and cogent reasons for finding the appellant's account incredible.

Background

4. The appellant claims to be an undocumented Bidoon from Kuwait, born on 3rd January 1980. He claims to have left Kuwait on either 12th May or 12th September 2015, travelled to Turkey by air on a false passport, then to France overland where he remained for some 5 months before arriving in the UK on 25th April 2016. He claimed asylum that day. His claim was refused on 26th October 2016.

5. He claims his family were not registered in the 1965 census because they were in the desert at that time and, despite various attempts to register in both 1996 and 2000, registration was refused because the family had not been included in the 1965 census. He claims he was arrested on attending a demonstration; he was released from detention he says, after he agreed to give information to the authorities about Bidoon activists and on the basis he would sign on weekly. His father arranged for him to stay with a close Kuwaiti friend where he remained for about a year. That friend then arranged, after about a year, for a smuggler to bring him to the UK.

6. The First-tier Tribunal judge found that the appellant was from Kuwait, as accepted by the SSHD, but that he was not an undocumented Bidoon.

Error of law

7. The judge identified a number of issues which, he found, significantly undermined the appellant's credibility:
(i) That he had not been directed to any evidence which indicates that Bidoon who were not included in the 1965 census were not allowed to register with the Executive Committee between 1996 and 2000 and thus denied security cards.
(ii) He claimed his father worked as a shepherd for Kuwaiti people until 1980 when he moved to the city of Sulaibiya and did not work again.
(iii) The appellant and his brother supported the family from 2001 when they began to work.
(iv) The appellant was asked three times in cross-examination how the family were supported between 1980 and 2001but it was not until re-examination provided an answer to the question namely that the man for whom his father had previously worked gave the family money to live; it was not credible that a person for whom his father had worked until the age of 25, for a maximum of 10 years, would then support an entire family for 21 years.
(v) It was not credible that a man for whom the appellant's father had ceased working some 30 years earlier would fund the appellant's journey to the UK.
(vi) He did not find credible the appellant's explanation that his father had been trying to obtain registration between 1980 and 1997 when the registration scheme was only established in 1996.
(vii) It was not credible that the appellant's birth would not have been registered given that at the time of his birth, free healthcare was available to all Bidoon until 1993.
(viii) It was not credible that the appellant would be completely illiterate because of lack of access by Bidoon to education, when the evidence was that free education was available to all Bidoon whether registered or not, until 1987.
(ix) It was not credible, for reasons not challenged in the application for permission to appeal, that the appellant was wanted by the authorities; findings adverse to the appellant in connection with his claimed undocumented friend were not challenged in the grounds for permission to appeal.

8. The core of the grounds relied upon in the appeal before me is the asserted failure of the judge to have regard to information to which he was directed in relation to the non-registration of Bidoon, which is an issue not considered in NM. The credibility findings of the appellant are not significantly challenged but Mr Winton submitted that those findings would not necessarily have been reached had the judge properly considered the background material to which he was referred.

9. The material relied upon by the appellant in support of the assertion the First-tier Tribunal judge had failed to have specific regard to the material before him in reaching his decision is an extract from Prisoners of the Past Kuwaiti Bidun and the Burden of Statelessness, a Human Rights Watch report dated June 2011:

"?..The Central system to resolve Illegal Resident's Status, generally known as the Bidun committee, is the sole government body through which Bidun can register and see resolution of their claims for Kuwaiti citizenship. The committee's procedures are opaque and applicants may never be told the reason for non-review, delay or denial of nationality. Nor can the Bidun challenge matters relating to their citizenship claims or status through the judicial system. A 1990 law governing the judiciary took away the court's jurisdiction over all matters relating t national sovereignty, including citizenship claims as well as administrative decisions to deny the Bidun temporary travel documents, or other government documentation?.for these reasons, at least 106,000 claims for nationality remain unresolved within the Bidun committee.
?.
Today's Bidun include those who were eligible for nationality under the Nationality Law but who failed to complete the application procedures by 1960 during the initial registration efforts that preceded Kuwait's independence1. Following passage of the Nationality Law Kuwait's government still granted Bidun residency rights, equal employment opportunities, and full access to social services that included free education and health care2. In effect, except for their lack of voting rights, the government treated them as equal to Kuwaiti citizens?.
?.
Security cards must be renewed either yearly or once every two years, depending on the class of card. Some Bidun reported that they could renew their cards, and those of their offspring, simply by presenting their previous cards and documents proving their registration in the 1965 census or residence in Kuwait before that time. Other Bidun said that they had to undergo interviews each time they wished to renew their cards??"

10. In reaching its decision NM had regard to the HRW report Prisoners of the Past, June 2011 - see paragraphs 27 to 45 of NM and records that the country expert, who gave evidence in NM, "in many respects", endorsed that report. In [104] the Upper Tribunal held:

"It must be assumed that Bidoon who did not register between 1996 and 2000, and hence did not obtain security cards, are as a consequence undocumented Bidoon, though this must be seen in the context of the evidence that most Bidoon carry security cards."

11. The essential core matter relied upon by the appellant is that the failure of the First-tier Tribunal judge to consider the HRW report impacted adversely on findings on the appellant's credibility and thus the overall conclusion. The significant difficulty with this submission is that the findings by the judge on the assistance given by the appellant's father's former employer are findings that were plainly open to the judge on the evidence before him. His finding that it was incredible that a man for whom the appellant's father worked for 10 years would continue for 21 years to meet the living costs of the family and then also pay the costs of smuggling the appellant to the UK was entirely open to him. The disbelief of the appellant's claimed lack of education and access to health care was, in the context of NM and the background evidence, entirely open to him.

12. The judge referred to and considered the appellant's account ([22]) that the father was refused registration because he was not included in the 1965 census and that in 1997 he was refused because the authorities had no information about him, yet the family had lived in Sulaibiya in rented accommodation for 17 years. It is correct that the judge (in [16]) states that he was not referred to "any evidence which indicated that Bidoon who were not included in the 1965 census were not allowed to register with the Executive Committee between 1996 and 2000 and were thus denied security cards". But there was none. The evidence which it is stated was referred to appears in the HRW June 2011 report referred to above. That report was considered in NM. It does not state that those who were not included in the 1965 census were not allowed to register.

13. It was not the appellant's case that his family had held documentation but renewal had been denied; nor was it his case that he had been refused and not told the reason; nor that he had had some education but this had ceased; nor that the proposed reforms referred to in NM had not been implemented. The First-tier Tribunal judge considered the evidence overall and reached findings that were open to him. the background evidence does not support the appellant's contention regarding the 1965 census but the findings overall do not support the appellant's contention that he is undocumented.

14. There is no material error of law in the findings and conclusion of the First-tier Tribunal judge.

Conclusions:

The making of the decision of the First-tier Tribunal did not involve the making of an error on a point of law.

I do not set aside the decision; the decision of the First-tier Tribunal judge stands, dismissing the appeal.

Date 16th January 2018

Upper Tribunal Judge Coker