United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments

 

Asylum and Immigration tribunal-b&w-tiff

Upper Tribunal

(Immigration and Asylum Chamber) Appeal Number: PA/09807/2019

 

 

Heard at Manchester	Decision & Reasons Promulgated
On 4 January 2021	On 18 January 2021

 

 

THE IMMIGRATION ACTS

 

 

Before

 

UPPER TRIBUNAL JUDGE HANSON

 

 

Between

 

FGAA

( Anonymity direction made)

Appellant

and

 

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

 

Representation :

 

For the Appellant: Mr Adebayo of A2 Solicitors.

For the Respondent: Mr Bates Senior Home Office Presenting Officer.

 

 

DECISION AND REASONS

 

1.       On 19 February 2020 a Deputy Judge of the Upper Tribunal set aside a decision of the First-tier Tribunal which allowed the appellants appeal on all grounds.

2.       A judicial transfer order has been made and the matter comes back before the Upper Tribunal to enable it to substitute a decision to either allow or dismiss the appeal.

 

Background

 

4.       The appellant claims he married in 2003 and has three children, a son and two daughters, who remain in Kuwait.

5.       The appellant claims his father died in 2018. His mother remains in Kuwait as do his two brothers and two sisters.

6.       The appellant claims that he is undocumented as during the 1965 census his family resided in the desert and were unaware of the need to register. The appellant claims both he and his father approached the Bidoon Committee in Kuwait, but they could not assist as the family were not on the census.

7.       The appellant claims that as a result he was only able to gain employment on the black-market selling fruit and vegetables from a market stall for cash.

8.       The appellant also claimed he attended a political demonstration on the 18 February 2014 at which the authorities began to beat and arrest the demonstrators. The appellant fled to his home but was arrested on 24 February 2014 there by the authorities.

9.       The appellant claims he was beaten, verbally abused, accused of swearing at the Emir, damaging government property and attempting to overthrow the government for which he was detained for 3 months. The appellant was eventually released after signing an admission and agreement to provide information to the security forces.

10.   The appellant stated he informed his father who arranged for him to go into hiding in the wilderness and stay with a friend.

11.   The appellant stated that whilst in hiding he leaned that authorities were looking for him and so on 19 August 2015 he flew to Turkey from Kuwait, from Turkey to Greece, from Greece to Austria and then to Finland on 10 September 2015.

12.   The appellant claimed he was beaten by racist in Finland and forced to have his fingerprints taken by the authorities there.

13.   The appellant stated that during his journey, if asked his nationality, he claimed to be either Iraqi or Syrian.

14.   In addition to his own witness statements the appellant relies upon a report from the Kuwaiti Community Association and the evidence of two witnesses.

15.   One of the witnesses, FMZA, appeared before the First-tier Tribunal but the second witness MRA did not.

16.   The report of the Kuwaiti Community Association sets out the methodology they apply in ascertaining whether a person is a Kuwaiti Bidoon based upon an interview with the person concerned and two witnesses whom they asked the client to provide. Of those witnesses only one appeared to support the appellant before the Upper Tribunal and so statements confirming the appellant's ethnicity and identity from the other could not be challenged or explored by way of cross-examination.

17.   The report concludes " FGAA has knowledge of the place that he claims to have lived in. Two witnesses from the Bidoons community here in the UK who know him and confirmed that he is an undocumented Bidoon. The interview findings and witness statement support FGAA's claim to be undocumented Bidoon from Kuwait".

18.   The appellant claims that he is related to one of his witnesses which is not contested.

19.   In his statement the witness MRA states he is an undocumented Bidoon who claimed asylum on the UK and who was accepted on appeal as being an undocumented Bidoon. The witness states he knows the appellant well as he is his aunts neighbour in Kuwait, although he was unable to accurately name the aunt when asked by Mr Bates in cross examination. MRA also claimed that he is aware of the appellants situation as they discuss their situation when they meet. The witness identified the nature of the appellants work in Kuwait was as he claimed.

20.   The second witness, who attended before the FTT, FMZA is an undocumented Bidoon whose claim was accepted by the respondent. The witness claims to know the appellant as he is his wife's half-brother. He also stated he attended the demonstration on 18 February 2014 and saw the appellant there.

21.   There is also support for the appellant's claim that there was a demonstration in Kuwait in 2014 during the course of which a number of individuals were arrested and those of interest to the authorities charged and taken before the courts.

Discussion

22.   As submitted by Mr Bates the appellant's case is a simple claim of a person not politically active who has undertaken no sur place activities in the UK who attended one demonstrated, after which he was arrested and ill-treated, being at risk as he is wanted by the authorities in addition to his claim to be an undocumented Bidoon and to suffer discrimination as a result.

23.   In NM (documented/undocumented Bidoon: risk) Kuwait CG [2013] UKUT 356(IAC) it was held that (i) The distinction made in previous country guidance in respect of Kuwaiti Bidoon, between those who are documented and those who are undocumented, is maintained, but the relevant crucial document, from possession of which a range of benefits depends, is the security card, rather than the "civil identification documents" referred to in the previous country guidance in HE [2006] UKAIT 00051. To that extent the guidance in HE is amended; (ii) The evidence relating to the documented Bidoon does not show them to be at real risk of persecution or breach of their protected human right; (ii)he evidence concerning the undocumented Bidoon does show them to face a real risk of persecution or breach of their protected human rights; (iii) 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.

24.   It is accepted that in addition to the appellant's own evidence he has the support of two live witnesses and the letter from the Kuwaiti Community Association.

25.   The Association letter confirms matters not in dispute in relation to the appellant being a Kuwait Bidoon but the conclusion he is undocumented is based upon the appellant's claims to be such, and two named witness put forward by the appellant who are known to be undocumented Bidoon. Of those one attended to support the appellant today.

26.   There is merit in Mr Bates submission that it is possible for some members of a family to be undocumented and some not and so the fact FMZA and the other witness have been accepted as being undocumented is not determinative. There is also merit in the submission there is no support for the appellant's contention that his father was unable to register as he did not appear on the 1965 census in the report from the Kuwaiti Community Association despite it being known this is an issue at large in the case for some time.

27.   In light of the issues raised in the case it is necessary to examine all relevant country material and to assess the weight that can be given to the appellant's evidence in light of the same, especially in light of the issues raised in the Reasons for Refusal letter which raise a number of valid concerns.

28.   Whilst the respondent accepted the appellant comes from Kuwait and is a Bidoon, it is not accepted he is an undocumented Bidoon.

29.   Between [62 - 80] of the Reasons for Refusal letter dated 27 September 2019 a number of issues were identified by the decision-maker leading to the conclusion at [80] " As a result of the information in the paragraphs above, it is considered that you have been internally and externally inconsistent with regards to your claim to be an undocumented Bidoon of Kuwait. Therefore this aspect of your claim is not accepted".

30.   The decision-maker also cast doubt upon the appellant's claim not to have been able to receive an education in Kuwait and to not be able to read and write on the basis that the country information relating to Kuwaiti Bidoon dated July 2016 states " access to schooling is available in Kuwait for Bidouns: Bidoun parents sometimes have to send their children to feepaying schools as some are excluded from Free State schools, although there is a state sponsored fund for education that Bidoun families can access'.

31.   It is noted in the refusal letter that when the appellant was asked why he could not access education prior to 1987 in the asylum interview, on the basis of a Human Rights Watch report which stated that prior to 1987 all Bidoon received free education at government school and until 1993, free healthcare on a par with Kuwaiti citizens with freedom of employment and that they formed a substantial part of Kuwait's army and police forces, the appellant's reply was to state that they came to Al Hasawe in 1988 at which time everything was closed. The decision-maker notes the appellant did not directly answer the question put forward which was found to weaken his credibility. Added to this it was noted at [87] that the appellant had claimed to have been born in Chebet and to have moved to Al Hasawe when he was eight years of age which would have been in 1988 and to have moved to Al Jahra when he was 11 or 12 years of age which would have been in 1991 or 1992, which was, in the opinion of the decision-maker, a further example of discrepant statements which damage the appellant's credibility.

32.   At [88] of the refusal letter it is noted the appellant claimed to have no access to medical care as a Bidoon and that if he required urgent medical treatment he would go to a pharmacy or have traditional treatment and that if anything serious happened his parents would get treatment in a private hospital. The decision-maker refers to the country guidance case of NM in which it was held that until 1993 the Bidoon residents of Kuwait received free treatment at public clinics and hospitals although the government subsequently began to require them to pay user fees which in 1999 were replaced by health insurance plans. It is said Bidoons who carry security cards can purchase low cost health insurance to a government registered program although also noted that Bidoons without security cards reported that they were denied access to government clinics and hospitals altogether. The decision-maker states the appellant failed to mention the available treatment and timeline set out above and that his vague and unsure responses regarding medical treatment lacked the detail reasonably expected from him in his asylum interview.

33.   In relation to the appellant's economic situation, he claims to have worked as a vegetable seller in Kuwait earning three or four dinars per day. If the appellant worked a six-day week his monthly income at its highest would therefore have been in the region of 100 dinar per month against which he claimed to pay 180 dinar month in rent and in relation to which it was noted at [92] of the refusal letter that it was unclear as to how the appellant could feed himself his wife and four children when considering the cost of household items.

34.   At [90] the decision-maker writes " You were not able to indicate as to how many days in the month you worked. You simply stated 'if there is no hassle from the municipality, I worked the whole week' the decision-maker at [91] states it was unclear as to how the appellant was able to afford to live in Kuwait on his wage which was not even guaranteed and that it was not credible that the landlord was renting the house to the appellant and his family with no paperwork or agreement and that his undocumented status was not taken into account.

35.   At [92] the decision-maker writes: "Based on the information you have provided, it is considered that you have been unable to remain consistent within your account of your life as an undocumented Bidoon, nor have you been able to provide a sufficient level of reasonably expected detail. Therefore, your claim to be an undocumented Bidoon is rejected".

36.   In relation to the witness who attended to support the appellant before the First-tier Tribunal, but who did not appear before the Upper Tribunal, Mr Bates submitted the appellant's reliance upon that witness who he claimed knew him and who he relied upon in support of his claim not only damages the appellant's credibility but casts doubt upon the reliability of the witnesses he now seeks to rely upon.

37.   In relation to that witness the First-tier Tribunal Judge wrote:

56. Witness NAI. His statement is short. I find that this is because he had nothing of value to add to the matter. The witness was vague and evasive to the extreme and I find that he cannot be relied upon at all. I do not accept he ever knew the appellant, and whilst I recognise that this witness has been granted asylum, following an appeal, I cannot but find that he made up the entirety of his evidence before me as to any knowledge whatsoever of the appellant in Kuwait. He was unable to provide any clear evidence as to any connection between himself and the appellant and behaved in a belligerent manner before the Tribunal. Whose idea it was to bring along a "rent a witness", I do not know, but this damages the appellant's credibility as he must have had involvement in the decision to include this man as a witness.

38.   Although the First-tier decision has been set aside it still stands as a record of the evidence given by the witnesses on that occasion.

39.   The First-tier Tribunal also records that the appellant in either his asylum interview, his statements, or at the hearing, showed no real knowledge of the situation in Kuwait for the Bidoon, which remains the situation before the Upper Tribunal.

40.   The appellant's evidence was that as a result of his difficulties in Kuwait his father arranged the services of an agent who eventually assisted the appellant to enter the United Kingdom. The appellant flew from Kuwait to Turkey and his whole journey seems to be one which, according to his evidence, enabled him in a relatively short period of time to travel from Kuwait to the UK with the assistance of a number of agents. The appellant claimed that he was unaware of the arrangements for such an enterprise and in particular the cost as it was arranged by his father with the assistance and donations from others.

41.   The appellant's evidence to the First-tier Tribunal was that the man in whose stable he was living whilst he was in hiding met his father regularly, making it more likely that the appellant will have been fully aware of the plans for him to leave Kuwait and the details of the same if his claim is credible.

42.   Mr Bates submissions regarding the plausibility of such a claim have arguable merit. The appellant claims to be a member of the Bidoon community who, on the basis his father could not obtain registration, must mean the appellant was claiming his father too is undocumented. Despite this the appellant claims he was able to travel by air with the services of an agent through a number of countries before coming to the United Kingdom which it is reasonable to assume would have cost a considerable sum of money.

43.   An article in Guardian newspaper dated April 2016 illustrates this point where it is written:

 

Migrants attempting to reach the UK are paying smuggling gangs as much as £13,500 to arrange their journey, the National  Crime  Agency (NCA) has revealed.

 

Some of those intent on coming to Britain are quoted five-figure sums to make the trip by air, while others are believed to have spent as much as £12,000 to travel from France in inflatable boats.

It also emerged that criminal networks are suspected to have started targeting quieter ports on the east and south coasts in addition to the key hotspot, Kent.

The NCA - the UK's equivalent to the FBI - is running the largest dedicated operation against organised immigration crime in Europe.

Officers said the cost varies hugely depending on the service being sought from the gang.

 

Decision

 

70.   I dismiss the appeal.

 

Anonymity.

 

The First-tier Tribunal made an order pursuant to rule 45(4)(i) of the Asylum and Immigration Tribunal (Procedure) Rules 2005.

 

I make such order pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008.

 

 

Signed.......................................................

Upper Tribunal Judge Hanson

Dated 7 January 2021