Upper Tribunal (Immigration and asylum chamber), 2021-09-22, JR/05077/2019
| Jurisdiction | UK Non-devolved |
| Date | 22 September 2021 |
| Published date | 28 September 2021 |
| Hearing Date | 25 March 2021 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | JR/05077/2019 |
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In the Upper Tribunal (Immigration and Asylum Chamber) Judicial Review |
JR/5077/2019 |
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In the matter of an application for Judicial Review |
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The Queen on the application of |
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AZ (Anonymity Direction Made) |
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Applicant |
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versus |
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Secretary of State for the Home Department |
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Respondent |
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ORDER |
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BEFORE Upper Tribunal Judge Owens
HAVING considered all documents lodged and having heard Mr A Chakmakjian of counsel, instructed by Healy’s LLP, for the applicant and Mr Z Malik Q.C of counsel, instructed by GLD, for the respondent at a hearing on 25 March 2021
IT IS ORDERED THAT:
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The application for judicial review is refused for the reasons in the attached judgment.
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The applicant is to pay the respondent’s costs on a standard basis, to be assessed if not agreed.
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Permission to appeal to the Court of Appeal is refused because the Tribunal does not consider that its decision involved the making of an error of law or that there is a point of law of public importance such that permission to appeal should be granted.
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Having had regard to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 and the Presidential Guidance Note No1 of 2013: Anonymity Orders, it is appropriate to make an anonymity order because to reveal the applicant’s identity might place her at risk.
Anonymity Order
“Unless and until a tribunal or court directs otherwise, the applicant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of his family. This direction applies to amongst others, both the appellant and the respondent. Failure to comply with this direction could lead to a contempt of court proceedings”.
Signed: R J Owens
Upper Tribunal Judge Owens
Dated: 21 September 2021
The date on which this order was sent is given below
For completion by the Upper Tribunal Immigration and Asylum Chamber
Sent / Handed to the applicant, respondent and any interested party / the applicant's, respondent’s and any interested party’s solicitors on (date): 22 September 2021
Solicitors:
Ref No.
Home Office Ref:
N otification of appeal rights
A decision by the Upper Tribunal on an application for judicial review is a decision that disposes of proceedings.
A party may appeal against such a decision to the Court of Appeal on a point of law only. Any party who wishes to appeal should apply to the Upper Tribunal for permission, at the hearing at which the decision is given. If no application is made, the Tribunal must nonetheless consider at the hearing whether to give or refuse permission to appeal (rule 44(4B) of the Tribunal Procedure (Upper Tribunal) Rules 2008).
If the Tribunal refuses permission, either in response to an application or by virtue of rule 44(4B), then the party wishing to appeal can apply for permission from the Court of Appeal itself. This must be done by filing an appellant’s notice with the Civil Appeals Office of the Court of Appeal within 28 days of the date the Tribunal’s decision on permission to appeal was sent (Civil Procedure Rules Practice Direction 52D 3.3).
IAC-AH-BW-V2
IN THE UPPER TRIBUNAL
JUDGMENT HANDED DOWN FOLLOWING HEARING
JR/5077/2019
Field House,
Breams Buildings
London
EC4A 1WR
25 March 2021
The QUEEN
(ON The application OF AZ)
(ANONYMITY ORDER MADE)
Applicant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Before
UPPER TRIBUNAL JUDGE OWENS
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Mr A Chakmakjian, instructed by Healys LLP appeared on behalf of the Applicant.
Mr Z Malik Q.C, instructed by the Government Legal Department appeared on behalf of the Respondent.
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ON AN APPLICATION FOR JUDICIAL REVIEW
APPROVED JUDGMENT
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JUDGE OWENS: This is an application for judicial review of the respondent’s decision of 24 July 2019 refusing the applicant’s application for leave to remain in the United Kingdom as a stateless person. The decision was upheld on administrative review by the respondent on 20 August 2019. The issue in this review concerns the proper interpretation of paragraph 403(c) of the Immigration Rules in respect of admissibility of a stateless person to their country of former habitual residence or any other country. The single ground of judicial review is that the respondent’s definition of “admissible” in the context of paragraph 403(c) is unlawful, irrational and/or inconsistent with her own policy.
Immigration history
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The applicant was born in Kuwait and is stateless.
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The applicant entered the United Kingdom on a visit visa using a valid “Article 17” travel document issued by the Kuwaiti government. On 9 January 2018 she applied for leave to remain in the United Kingdom as a stateless person pursuant to paragraph 403 of the Immigration Rules.
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The basis of her application was that she had provided evidence that her nationality had been withdrawn and she had unsuccessfully attempted to obtain Kuwaiti nationality. It had been problematic for her to continue to reside in Kuwait without nationality because of the denial of her civil rights such as education, healthcare and employment. She does not have any form of civil identity documentation in Kuwait. She claims to have used a false identity in order to attend school and drive and that this has now come to the attention of the Kuwaiti government. Every time she travels out of Kuwait her travel document is retained and she is provided with a letter which she must use to re-enter Kuwait.
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The focus of the supporting representations was in relation to the applicant’s status as a stateless person in Kuwait. The applicant has not claimed asylum or lodged a human rights claim.
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After she lodged her application, the respondent requested more information in respect of the applicant’s admissibility to Kuwait. In response on 17 April 2019, the appellant’s representative AMZ Law stated that “the question of admissibility is not relevant to the issues in our client’s case because our client is a refugee because her situation is analogous to an undocumented Bidoon”.
The Secretary of State’s Decision
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In the decision dated 24 July 2019 it is not accepted by the respondent that the applicant is not admissible to Kuwait because the applicant provided a valid Kuwaiti “Article 17” travel document that expired on 20 March 2020. The applicant has previously used this document to travel to and from Kuwait. She has failed to provide sufficient evidence that she is no longer admissible to Kuwait.
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Further the respondent does not accept that the applicant is not able to return to Kuwait because she does not have access to other basic rights because she provided to the respondent an educational certificate and a document confirming her lack of Kuwaiti citizenship provided by the Kuwaiti authorities. Both documents were in her own name.
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The application also initially fell for refusal under paragraph 403(b) and (d), however on administrative review these reasons for refusal fell away because it is accepted that the applicant is stateless and her “Article 17” travel document was accepted as genuine.
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On review, the respondent reiterated that the applicant holds an “Article 17” travel document which allows the applicant to re-enter Kuwait and referred to the Home Office Country Information and Guidance on Kuwait in this respect. It is said that the applicant’s county of former habitual residence is Kuwait and that she is entitled to return there to take up permanent residence.
Permission to appeal
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Permission to appeal for judicial review was granted by Upper Tribunal Judge Kopieczek on oral renewal on 16 December 2019. The grant of permission is in the following terms:
“It is arguable that the respondent’s decision unlawfully interprets ‘admissible’ in paragraph 403(c) of the Immigration Rules as meaning simply ‘permitted to enter’ (in this case Kuwait), whereas arguably that interpretation is inconsistent with international instruments dealing with statelessness and with the respondent’s own guidance”.
Issue
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The issue in this appeal is the proper interpretation of the word admissible in paragraph 403(c) of the Immigration Rules and whether the respondent has lawfully applied that term to the applicant’s application.
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It is submitted by the applicant that the Secretary of State’s failure to adopt the correct interpretation when considering the applicant’s application renders the...
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