Upper Tribunal (Immigration and asylum chamber), 2017-04-25, [2017] UKUT 197 (IAC) (R (on the application of Al-Anizy) v Secretary of State for the Home Department (undocumented Bidoons – Home Office policy))
| Jurisdiction | UK Non-devolved |
| Judge | The Honourable Mr Justice McCloskey, President |
| Status | Reported |
| Date | 25 April 2017 |
| Published date | 11 May 2017 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Hearing Date | 25 April 2017 |
| Subject Matter | undocumented Bidoons – Home Office policy |
| Appeal Number | [2017] UKUT 197 (IAC) |
R (on the application of Al-Anizy) v Secretary of State for the Home Department (undocumented Bidoons – Home Office policy) [2017] UKUT 00197 (IAC)
Upper Tribunal
Immigration and Asylum Chamber
Judicial Review Decision Notice
The Queen on the application of Mohamed Al-Anizy
Applicant
v
Secretary of State for the Home Department
Respondent
Application for judicial review: substantive decision
Before The Honourable Mr Justice McCloskey, President
Having considered all documents lodged
Decision: this application for judicial review is disposed of in the terms of the Order in [30] hereof.
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The Home Office family reunification policy embraces a series of flexible possibilities for proof of identity.
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In any case where withdrawal or a consent order is proposed judicial scrutiny and adjudication are required.
McCLOSKEY J
Introduction
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The Applicant is the father member of a family unit, the other members being his spouse and their four dependent children. All of them are Kuwaiti Bidoons. The distinguishing feature of the Applicant is that he is a recognised refugee in the United Kingdom with current leave until 21 May 2020. The oldest child resides with him, as a dependant. The target of this judicial review challenge is the failure/refusal of the Respondent, the Secretary of State for the Home Department (the “Secretary of State”), to determine the application of the Applicant’s spouse and their twin infant boys for family reunification in the United Kingdom.
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By Order of Upper Tribunal Judge Bruce dated 06 March 2017, permission to apply for judicial review was granted, in tandem with expedition. It is appropriate to note the terms in which urgent consideration was requested in the Judicial Review Claim Form:
“The Applicant’s wife and two youngest children are living in dire and severely over-crowded conditions in Iraq. They are asylum seekers registered with UNCHR who had to flee Kuwait. They survive on charity. The youngest child …….. has to attend hospital every month for treatment in relation to her inflamed lungs ……
The Applicant’s daughter in the UK ………….., is severely affected by the separation from her mother. She is distressed, cannot concentrate, is struggling in school and has regular support from her GP and Social Services in respect of her mental health …..
The effect of prolonged separation is having a damaging impact on all parties, but in particular the four children, all aged between 3 and 10 years.”
The Broader Factual Matrix
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I distil the following from the statement of supporting facts and grounds. I shall highlight infra whether there is any material contentious factual issue requiring particular consideration.
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All six members of the family were born in Kuwait. The four children are now aged 10, 8, 4 and 3 years respectively. Some few years ago the Applicant began attending demonstrations in support of equal rights for Bidoons in Kuwait. This gave rise to several episodes of detention and mistreatment entailing a head injury causing epilepsy. In time, a warrant for the Applicant’s arrest based on his attendances at demonstrations and alleged distribution of anti-state leaflets was issued. This precipitated his flight from Kuwait.
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On 31 October 2014 the Applicant arrived in the United Kingdom and claimed asylum. On 09 November 2014 the oldest two children did likewise. All three were granted refugee status in 2015.
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Meanwhile, the authorities in Kuwait continued to pursue the Applicant resulting in the application of adverse attention to his spouse and their two younger children, all of whom fled to Iraq. There they live destitute and in chronically over-crowded conditions and are registered with UNHCR as asylum applicants.
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The succeeding milestones in the narrative are susceptible to the following tabulation:
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Aided by the Red Cross the Applicant submitted on line applications for family reunion, giving rise to an appointment at the Visa Application Centre (“VAC”) in Basra on 28 August 2016.
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The VAC staff demanded the production of passports as a pre-requisite to considering the applications.
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On 13 August 2016 Ms Mead of the Red Cross, transmitted the details of the application to the VAC Entry Clearance Manager at the Amman, without response.
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Between September and November 2016 the Red Cross engaged in a formal complaint process with UKVI in an attempt to stimulate progress.
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With the assistance of the Red Cross the Applicant completed new on line visa applications and booked an appointment at the Baghdad VAC on 06 December 2016. An accompanying letter from the Red Cross explained that, being Kuwaiti Bidoons, the family members concerned did not possess identity documents or travel documents, drawing attention to the supporting passage in the Home Office Country Information and Guidance Publication “Kuwait: Bidoons” (the “CIG”) of July 2016.
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The application included a substantial quantity of documentary evidence such as the asylum determination, biometric residence permits, the marriage contract, the asylum interviews of the Applicant and the aforementioned CIG.
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At the scheduled appointment on 06 December 2016 in Baghdad a repetition of (ii) occurred.
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Acting on a suggestion made by the VAC official on the last mentioned occasion the Applicant travelled to Jordan in December 2016 where he engaged with the British Embassy in Amman. Promises of further enquiries came to nothing.
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In January and February 2017 the Applicant’s solicitors engaged in formal correspondence with the Home Office, to no avail. Ultimately, pre-action protocol letters dated 18 February 2017 went unanswered.
The Respondent’s Position
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The Applicant’s solicitors received a reply to their initial letter addressed to the Home Office which can only be described as quite hopeless. While, by the terms of the reply, the author claimed to have investigated the issues raised with the Amman Entry Clearance Manager, the thrust of the reply was that no one was able to say why the Amman VAC had refused to consider the applications registered with them.
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Following several further solicitor’s letters, the UKVI Head of International Visa Operations eventually responded, by letter dated 09 March 2017 which contains the following passage of note:
“Unfortunately, as no applications have actually been submitted we do not have available records to confirm exactly what has previously occurred ….
Our use of the previously referred to policy and its implementation has been through the Home Office Council. We have also previously had applications for JR in relation to similar cases. At the current time the policy has not been highlighted as being unreasonable by the Courts.”
Pausing, at this juncture UKVI was not disputing the assertion that on two previous occasions, appointments at the Basra VAC and the Baghdad VAC had resulted in a refusal to even consider the family reunification applications on the ground that the Applicants did not present suitable identification. The UKVI position remained the vague one stated in its letter dated 08 February 2017:
“… It may be that [the Applicants] were refused because they had not shown that they were normally resident in Iraq. As individuals claiming to be from Kuwait, they would need to show documentation showing that they normally reside in Iraq. Without this, they would be refused.”
In passing, and not to be lightly dismissed, by this stage the Applicant had expended some £2,000 in securing the two aforementioned VAC appointments. His solicitors pointed out that he was in receipt of Employment Support Allowance and unable to work.
The UKVI Policy
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The less than illuminating and unparticularised reference to UKVI “policy” in the second of the Respondent’s aforementioned letters invites a little forensic excavation. In their letters the Applicant’s solicitors quoted the following extract from the UKVI Family Reunion Guidance, published in July 2016.
“Applicants must submit all original documents that they are able to provide to establish their identity and to support their claim to be related to the sponsor. This could...
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