Upper Tribunal (Immigration and asylum chamber), 2013-07-22, [2013] UKUT 356 (IAC) (NM (documented/undocumented Bidoon: risk))
| Jurisdiction | UK Non-devolved |
| Judge | Mr D K Allen, Ms M Reeds |
| Status | Reported |
| Date | 22 July 2013 |
| Published date | 24 July 2013 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Hearing Date | 30 January 2013 |
| Subject Matter | documented/undocumented Bidoon: risk |
| Appeal Number | [2013] UKUT 356 (IAC) |
Upper Tribunal
(Immigration and Asylum Chamber)
NM (documented/undocumented Bidoon: risk) Kuwait CG [2013] UKUT 00356(IAC)
THE IMMIGRATION ACTS
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Heard at Field House |
Determination Promulgated |
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On 14 and 30 January 2013 |
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………………………………… |
Before
UPPER TRIBUNAL JUDGE ALLEN
UPPER TRIBUNAL JUDGE REEDS
Between
NM
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr B Ali of Aman Solicitors
For the Respondent: Mr P Deller, Senior Home Office Presenting Officer
(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.
(4) 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.
DETERMINATION AND REASONS
1. The appellant, who claims to be a Bidoon from Kuwait born on 5 August 1961, appealed to a First-tier judge against the Secretary of State’s decision of 1 March 2011 to remove her as an illegal entrant from the United Kingdom. The judge dismissed her appeal, but it was subsequently concluded at a hearing on 23 September 2011 that he had erred in law. As a consequence it was ordered that the appeal be remade on the merits on all issues except that two matters were accepted on behalf of the Secretary of State: first, that the appellant’s brother S is an undocumented Bidoon, and secondly that S is the appellant’s full brother as confirmed in a DNA report. It was common ground that the fact that S was an undocumented Bidoon did not mean that the appellant was an undocumented Bidoon and that that was a matter that would require to be proved.
2. It was subsequently concluded that the appeal would be appropriate for country guidance on the issue of risk to the Bidoon in Kuwait, and the matter was set down for hearing on that basis.
3. In terms of the ambit of the hearing, Mr Deller argued that all issues were at large and that matters had not been narrowed in any respect at the Case Management hearing. We consulted our notes from that hearing, and Mr Ali accepted that the issue of whether the appellant was an Iraqi national was still a matter which could be and was being argued by the Secretary of State.
Summary of the Appellant’s Claim
4. The essence of the appellant’s claim to international protection is that she fears oppression there, on account of what has happened to her husband and because of her and her family’s status as Kuwaiti Bidoon. She said that her husband had been arrested in 1991, 1997, 2005 and 2011 and was still detained.
5. In 1991 he was arrested when serving in the Navy and was accused of being aligned with the Iraqi military. He was released after a year as part of a general amnesty. He was arrested in 1997 for illegally working, and released after six months. The 2005 arrest was for distributing leaflets about promotions and sales in shops. He was released in March 2011 and re-detained three weeks later. Her son, K, was currently seeking asylum in Italy. She produced various documents, including her birth certificate and marriage certificate. Her husband’s brother, A, had been in the United Kingdom since 2003.
Oral Evidence of Mr Shiblak
6. We heard oral evidence from the expert Mr Abbas Shiblak who is a research associate and area specialist of the Department of International Development Refugee Studies Centre at the University of Oxford. He identified his signature on his report and was happy to give evidence on the basis of this report.
7. With regard to the appellant specifically, there was a section in his report from page 143 onwards concerning the documents. Nothing he had heard today would lead him to change what he said about the appellant’s evidence, though he had not seen a translation of the marriage certificate and, as he had said at paragraph 11 of the report, on the basis of the documents referred to there, nothing he had heard from the appellant today was such as to cause him to change his opinion about what he said about her documents and her case.
8. With regard to the Home Office questions put to him in light of his report and his responses to them, he was asked whether he would wish to comment further. He said that he had been working since 1991 in connection with the social and legal status of refugees, focusing on statelessness including the Bidoon. He said that with respect to them in particular there was a gap between the law and its application in Kuwait which was greater than in other countries. If a particular law had been passed it should not be taken to imply that it had been implemented and it would either have been done patchily or not at all. What was said by the Kuwaiti authorities was taken in good faith by the Home Office. They gave promises but did not fulfil. For example, with regard to healthcare, it was said by the Home Office that in recent years this matter had been resolved, but in fact the Bidoon did not get access to free government schools, reference being made to the human rights report of June 2012 and the OGN of last week. In the latter report the Home Office went beyond the official government views by consulting the community and INGOs who had acknowledged that healthcare was not available free of charge and it had to be private, and they were not allowed to work. They could not have birth certificates or marriage certificates. It was a very autocratic tribal system. For example, last week MPs had criticised the head of the agency for illegal residents who had said it was not within his domain but within the domain of the Interior Ministry which was linked to the head of state, the Emir. If a Bidoon was blacklisted for a job it would affect everything and would affect his family also. Mr Shiblak estimated that those without security clearance had increased in number. It had been thought that it was 3,000 but the OGN at paragraph 3.6.26 said the number was far higher.
9. As regards the announcement of eleven privileges/benefits and the question of whether they had been implemented, the answer was no. Understandably the NGOs including Human Rights Watch hoped that it would materialise in the near future but it had not done. With regard to education, they were told they could go to government schools and some families sent their children to register, but they were asked for civil ID which they did not have. Likewise with respect to birth certificates, they had had the same impression, but when they went to do it they were sent to the Ministry of Interior. They had a ready made form for them to fill in in which they had to show the country of origin, hence it would show they were not Kuwaiti Bidoon, so there were ways of putting blocks on benefits.
10. He was asked whether as of today there were any changes which justified reversing the previous country guidance decisions in BA [2004] UKIAT 00256 and HE [2006] UKAIT 00051, and he referred to the most recent Human Rights Watch report and the OGN.
11. When cross-examined by Mr Deller it was put to Mr Shiblak that at several points in his comments he seemed to think that the Home Office were too quick to accept the official Kuwaiti government version of events, especially with regard to the Kuwaiti government. He said that it was a problem with the Kuwaiti government. They had produced a study in 2010 with sections about good practice, but it was still too early and they had to wait for effective implementation. He was asked whether there was any reason why the Kuwaiti government would say they were making progress with respect to the Bidoon if they were not. He said that they had given an answer and the main worry in Kuwait was security. The Bidoon had previously comprised 80% to 85% of the army and they were thought to be a security risk for Kuwait, though many had fought for Kuwait so that was not the case, he thought. It was a question of individuals and not tribal risk. The issue of security was the security of the ruling family. They did not want the Bidoon any more and sought to reduce or eradicate the number of Bidoon in Kuwait. Many were active in trying to put pressure on the government to change its mind, including MPs.
12. Mr Deller asked why, if this was the case, would they bother to say that they were taking steps and whom they were trying to please Mr Shiblak said it was the international community and to avoid Bidoon pressure and protests....
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