Ahmed Rezq For Judicial Review Of A Determination Of The Upper Tribunal (asylum And Immigration Chamber) Dated 4 July 2013 Etc. And Answers For The Advocate General Fot Scotland On Behalf Of The Secretary Of State For The Home Department
| Jurisdiction | Scotland |
| Judge | Lord Stewart |
| Neutral Citation | [2015] CSOH 69 |
| Date | 05 June 2015 |
| Docket Number | P902/14 |
| Court | Court of Session |
| Published date | 05 June 2015 |
OUTER HOUSE, COURT OF SESSION
[2015] CSOH 69
P902/14
OPINION OF LORD STEWART
In the Petition
AHMED REZQ
Petitioner;
for
Judicial Review of a determination of the Upper Tribunal (Asylum and Immigration Chamber) dated 4 July 2013 etcetera
and Answers for
the Advocate General for Scotland on behalf of
the Secretary of State for the Home Department
Respondent:
Pursuer: Bryce; Drummond Miller LLP
Defender: McIlvride QC; Chalmers, Solicitor for the Advocate General for Scotland
5 June 2015
[1] On 20 February 2015 I heard submissions at a first hearing in this asylum judicial review. Mr Bryce, advocate, was for the claimant petitioner and Mr McIlvride QC was for the government respondent. I made avizandum and have now decided, notwithstanding Mr Bryce’s vigorous and well-informed advocacy, to refuse the petition.
Kuwaiti Bidoons
[2] The claimant asserts that he is an undocumented Kuwaiti Bidoon (otherwise, Bidun or Bidoun or Bedoon and variants), born 2 February 1991, a shepherd by occupation. For an explanation of the term “undocumented Kuwaiti Bidoon” reference can be made to, among other derivative sources, MA Appellant [2014] CSIH 111; NM (documented/undocumented Bidoon: risk) Kuwait CG [2013] UKUT 356; BA and Others (Bedoon–statelessness–risk of persecution) Kuwait CG [2004] UKIAT 00256 at [5].
[3] The received wisdom is that undocumented Kuwaiti Bidoons are at risk of persecution and that they qualify for Refugee Convention protection. This was established for the United Kingdom in the 2004 country guidance [CG] case just cited, BA and Others (Bedoon–statelessness–risk of persecution) Kuwait. That case determined, putting the guidance in italics:
“(iii) In view of the widespread and systematic nature of the discriminatory measures they experience, the majority of (but not all) Bedoon in Kuwait face a real risk of persecution in Kuwait;
[...]
(v) Since the Bedoon have a tribal identity and are not simply a collection of (mainly) stateless persons, they face persecution by reason of a Refugee Convention ground of race. They can also be seen to form a particular social group.”
This country guidance was endorsed in HE (Bidoon–statelessness–risk of persecution) Kuwait CG [2006] UKAIT 00051 and remained authoritative until 24 July 2013 when the guidance was qualified by the CG case NM (documented/undocumented Bidoon: risk) Kuwait cited above.
[4] The 2013 country guidance now current is:
“(1) 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.
(2) The evidence relating to the documented Bidoon does not show them to be at real risk of persecution or breach of their protected human rights.
(3) The evidence concerning the undocumented Bidoon does show them to face a real risk of persecution or breach of their protected human rights.”
Travel and claim history
[5] The present claim asserts that: the claimant left Kuwait in 2007―age sixteen, I observe―following an accusation of murder by, and a threat of revenge from another family; the claimant travelled via Turkey, Greece, France, Italy, France again, to the United Kingdom; the claimant spent five-and-a-half years in Greece; that the claimant paid a people smuggler 1,000 euros to get him to the United Kingdom concealed in the back of a lorry; the claimant arrived in the United Kingdom on 5 October 2012 and claimed asylum on the day he arrived.
[6] The claim was refused by the United Kingdom Border Agency [UKBA] on 2 November 2012. As I read it, the reasons for refusal letter gives weight to four main factors, namely (1) the language analysis findings; (2) the claimant’s ignorance of some (but not all) key facts about Kuwait such as the colour of post boxes and the colour of police uniforms; (3) the claimant’s (relative) ignorance of key facts about the status of Bidoons in Kuwait; and (4) the assessed incredibility of the claimant’s personal narrative [6/5 of process]. On appeal to the First-tier Tribunal [FTT] the claim was allowed by determination promulgated on 15 December 2012. This was before the revised country guidance in NM (documented/undocumented Bidoon: risk) Kuwait CG [2013] UKUT 356 but there is no significance in that.
Asylum: granted by the FTT; and set aside by the UT
[7] The FTT judge accepted the claimant’s evidence that the claimant was an undocumented Kuwaiti Bidoon. Applying HE (Bidoon–statelessness–risk of persecution) Kuwait CG [2006] UKAIT 00051 the FTT judge found that, if returned to Kuwait, the claimant would be subject to a real risk of persecution. He also found that the claimant’s article 3 ECHR rights [no torture or inhuman or degrading treatment] would be breached if returned. The FTT granted asylum. The government was given permission to appeal to the Upper Tribunal [UT].
[8] On appeal the Upper Tribunal [UT] set aside the FTT decision and directed that there should be a re-determination with no preserved findings in fact. The focus of the appeal was the FTT judge’s treatment of the language analysis report. The UT decision was promulgated on 4 July 2013. Following clarification of the law on language analysis by a decision of the Supreme Court handed down on 21 May 2014, the claimant submitted to the UT that the claimant’s position on language analysis had been vindicated and that there was no need for a re-determination. At a “for mention” hearing on 17 July 2014 the UT rejected the claimant’s submission and determined that the UT would act on its earlier decision. The UT indicated, informally, according to counsel, that the only way of challenging the set‑aside and re‑determination decision was by judicial review. That is what prompted the present proceedings.
The procedural issues: competency, Eba and mora
[9] There are three procedural issues, namely, first, whether the UT set-aside and re‑determination decision of 4 July 2013 can competently be amenable to judicial review, given that judicial review is a last-resort remedy and that, while re-determination is pending, the tribunal process has not been exhausted; secondly, whether the petition raises “a point of principle or practice” that satisfies the Eba test for judicial interference with non‑appealable tribunal (immigration and asylum chamber) determinations; and, thirdly, whether the application for judicial review is barred by mora (delay) on the part of the claimant. All of these procedural issues I have decided in favour of the claimant.
[10] Returning to the first procedural issue, is it competent for this Court to review the set‑aside and re‑determination decision given that the UT process is still ongoing and that, in a sense, there has not been “exhaustion of remedies”? It is competent, in my view, or at least not necessarily incompetent. The tribunal regime has been designed as a final‑disposal‑appeals system and constructed so as to exclude onward appeals or same‑tier reviews for interlocutory decisions, including re-determination decisions. The existence of the exclusionary provisions implies that but for the rules there would have been remedies within the tribunal regime. In the absence of remedies within the tribunal regime the only recourse is to the Court’s supervisory jurisdiction.
[11] I did wonder whether the claimant could have applied for permission to appeal the set‑aside decision and so, somewhat artificially, triggered a new‑binding‑case‑law review by the UT itself of the set-aside decision in terms of rule 45(1)(b) of The Tribunal Procedure (Upper Tribunal) Rules 2008, SI 2008/2698: but I have not looked into the matter of remedies within the tribunal regime too deeply because parties are agreed on the essential points and I have taken their word for it. Parties agree that the set‑aside and re‑determination decision of the UT is a “procedural, ancillary or preliminary decision” and as such is an “excluded decision”, ie a decision in respect of which an onward right of appeal to the Court of Appeal or the Inner House is expressly excluded in terms of the Tribunals, Courts and Enforcement Act 2007 s. 13(7)(f) [power of Lord Chancellor to specify “excluded decisions”] and The Appeals (Excluded Decisions) Order 2009 2009/275 r. 3(m) [exclusion of procedural, ancillary and preliminary decisions in immigration and asylum appeals]. Parties agree that the UT is disempowered from reviewing its own “excluded decisions” except――in terms of Tribunals, Courts and Enforcement Act 2007 s 10(1), (4) and (7)――for the purpose of correcting accidental errors [Abiyat and Ors (Rights of Appeal) Iran 2011 UKUT 00314 (IAC) at [21], [22]].
[12] The legislature has designed the tribunal regime to produce speedy outcomes. It is not for the Court to subvert the intention of the legislature. In most cases, I suspect, it will be impossible for the dissatisfied party, whether claimant or government, to argue that re‑determination with the possibility of an onward appeal into the appellate tier of the higher court system is not an adequate remedy. In the present case there is an unusual combination of circumstances: the UT decision of 4 July 2013 deprives the claimant of the benefit of a positive credibility finding made by an experienced judge (Dr Joseph Morrow, at that time also President of the Mental Health Tribunal for Scotland and now Lord Lyon King of Arms); and it is arguable―or at least it is argued by the claimant―that the decision would not and could not have been made if the UT had understood the law on language analysis as it was subsequently declared to be by the Supreme Court on 21 May 2014 in MN (Somalia) [MN (Somalia) and KY (Somalia) v ...
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