APPEAL TO THE COURT OF SESSION BY MA AGAINST A DECISION OF THE UPPER TRIBUNAL
EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
[2014] CSIH 111
XA28/14
Lord Brodie
Lord Drummond Young
Lady Cosgrove
OPINION OF THE COURT
delivered by LORD DRUMMOND YOUNG
in an appeal to the Court of Session
by
MA
Appellant;
against
a decision of the Upper Tribunal (Immigration and Asylum Chamber)
dated 14 August 2013
Respondents:
Appellant: Lindsay QC, Byrne; Drummond Miller LLP (for Gray & Co, Solicitors, Glasgow)
Respondents: Webster; Office of the Advocate General
19th December 2014
The background to the appeal
[1] The appellant claims to be from Kuwait and to be part of a particular group of people known as Bidoun; this is an Arabic word meaning “without”. Bidoun (sometimes romanised as “Bidoon”) live in the northern part of the Arabian Peninsula, including Kuwait, and neighbouring parts of Iraq and Syria. They have lived in that area since at least the days of the Ottoman Empire; indeed, it seems quite likely that they lived there before the Ottoman conquest in 1517, under the Mamluk sultanate and even the ‘Abbasid and Umayyad caliphates. The Ottoman Empire was divided into a number of successor states and territories during the period between the end of the First World War and the Treaty of Lausanne in 1924. Since then some Bidoun have acquired the nationality of states in the region, and in that event they are normally issued with national documents such as identity cards and enjoy the rights of citizens. Nevertheless, many of the Bidoun have remained stateless, continuing to reside in the area where their ancestors had lived from time immemorial.
[2] The situation of the Kuwaiti Bidoun was considered in detail by the Upper Tribunal in the case of NM (documented/undocumented Bidoon: risk) Kuwait CG, [2013] UKUT 356. For present purposes it is sufficient to record the Tribunal’s conclusions. They held, on the basis of extensive evidence, that distinct categories of people exist in Kuwait (paragraph 82). Permanent residents with civil identification cards are citizens and entitled to all the benefits that flow from that, including rights to purchase property, assume employment, enrol in most educational institutions and be entitled to free healthcare. Their numbers include persons described as “former Bidoon who have been granted citizenship”. A second category consists of Bidoun who hold security cards; these are persons who registered with the Kuwaiti authorities between 1996 and 2000. The Bidoun who hold security cards are theoretically issued with travel documents in the form of “temporary passports”, although the use of these is limited. They also have certain rights in respect of education, healthcare and employment. A third category consists of the unregistered Bidoun; these are persons who have been unable to renew their security cards or have never obtained security cards. This group are denied all of the benefits that are available to those with security cards. They cannot obtain passports of any kind, they are not provided with educational funding and they are denied any access to government clinics and hospitals. They cannot legally hold employment, although in practice exceptions exist and undocumented Bidoun are allowed to hold certain government jobs. At one time they constituted a significant percentage of the army and the police force, but these forces ceased to accept new Bidoun applicants in 1986.
[3] It is this third category to which the appellant claims to belong. The Upper Tribunal in NM concluded that the documented Bidoun were not at real risk of persecution or breach of their protected human rights. The undocumented Bidoun, by contrast, did face a real risk of persecution and breach of their human rights (paragraph 100). They are not recognized as citizens and cannot obtain travel documents, and they are subject to significant limitations on the right to obtain employment. It is material to note that the position of the Kuwaiti Bidoun worsened to some extent when the war between Iran and Iraq broke out in 1980 and deteriorated still further following the Iraqi invasion of Kuwait in August 1990. Many Bidoun left Kuwait at that time. The Kuwaiti government maintains that the vast majority of Bidoun are actually nationals of other countries and therefore do not have legitimate claims to Kuwaiti nationality; this amounts to a denial that they are stateless (paragraph 31).
The appellant’s history
[4] The appellant claims that his life history is as follows. He was born on 5 September 1988 in Kuwait. He left Kuwait with his father in either 1990 or 1991. His mother and sister had been murdered shortly before that. After they left Kuwait he and his father went to Jordan and remained there for a year, and then to Palestine, where they remained for three years, following which they went to Egypt, where they remained for 10 years. In 2004 he travelled to Greece by sea at his father’s suggestion. His father remained in Egypt, where he died in 2008. The appellant was arrested in Athens on 15 March 2004, detained for slightly over one month, and then made subject to a deportation order that required him to leave the country within 15 days. He did not leave as required, and remained in Greece for the next eight years. During this period he supported himself by working as a bricklayer. On 8 August 2012 he left Greece, concealed on a truck, and travelled by ferry to Italy, where he stayed for one and a half months. He did not claim asylum there but travelled onwards to France by train, arriving there about the end of November 2012. He did not claim asylum in France. He spent two months in Calais, attempting to travel to the United Kingdom, but was repeatedly stopped from doing so. On 25 January 2013 he entered the United Kingdom concealed in a truck. Shortly after leaving the truck he was encountered by police and was taken to a police station, where he lodged a claim for asylum.
[5] On 26 February 2013 the Home Secretary refused the appellant’s application for asylum and issued a decision to remove him as an illegal entrant to the United Kingdom. The reason given for the decision was that the appellant had failed to substantiate his claim to Kuwaiti nationality and Bidoun background. Although he claimed to have lived with his father, who was said to be a Kuwaiti Bidoun, from leaving Kuwait until 2004, he was unaware of such family details as whether he or his father belonged to any particular tribe, or anything about his family’s history, or whether he still had any relatives in Kuwait. It was therefore considered that the appellant had failed to demonstrate even the very limited degree of knowledge that might be expected with regard to his claimed background; on that basis the credibility of his claim was considered damaged. The appellant appealed against that decision under section 82 of the Nationality, Immigration and Asylum Act 2002. His appeal was heard by the First‑tier Tribunal, and on 5 April 2013 the judge decided to refuse the appeal. The appellant subsequently appealed to the Upper Tribunal, which refused the appeal on 13 August 2013. He has now, with leave, appealed to the Court of Session.
The decisions of the First‑tier Tribunal and Upper Tribunal
[6] Before the First‑tier Tribunal the appellant submitted that he lacked any identification documents and had never received a proper education; the only limited education that he had received was from an imam at the mosque. He had left Kuwait with his father following the deaths of his mother and sister and had travelled with his father as indicated in paragraph [4] above. He feared that if he were returned to Kuwait he would be very badly treated because he was an undocumented Bidoun and had no rights in Kuwait. For the Home Secretary it was accepted that the appellant had completed his screening and asylum interviews in Arabic, the official language of Kuwait, but it was submitted that that language was used by over 200 million people in various other countries including Egypt. His knowledge of his family background was very limited, and he was unable to say anything at all about the history or background of the Bidoun. It was submitted that this damaged the credibility of his claim. It was further submitted that it was unclear whether the appellant was a documented or undocumented Bidoun.
[7] The judge accepted that the appellant seemed to claim to be an undocumented Bidoun. On that basis, in light of the decided case law the appellant might well be at real risk of persecution on return to Kuwait if he were indeed a Kuwaiti Bidoun. Nevertheless, the appellant had only been able to state that he was an undocumented Bidoun and had not been able to demonstrate anything by way of proof. He stated that he left Kuwait when he was three years old, and that would clearly be a perfectly reasonable explanation as to why he was unable to describe the situation of the Bidoun in Kuwait in any great detail or to give a detailed account of his background. Despite that, the judge continued:
“… I do nonetheless take an adverse credibility point from his total lack of knowledge of the background of the Bidoun and his family in Kuwait. He said that he was with his father until 2004 when he would be 16 years of age. The witness statement and the asylum interview indicate that the Appellant has been able to pick up very little indeed concerning the Bidoun and the situation for them in Kuwait apart from a very general statement as to what Bidoun means and the fact that they are badly treated with absolutely no rights. It appeared to me that he ought to have been able to have a greater knowledge than this based on living with his father who he also claimed was an undocumented Bidoun. His reasons given are that his father really did not want to talk about it and that both he and his father were uneducated.
It appears to me that whether or not his father and he were uneducated is no excuse for this lack of knowledge. People do gain experience of life whether they are educated or not and the lack of knowledge of the Bidoun and facts about the background of this family has to count against the Appellant” (paragraphs 40 and 41).
[8] The judge then considered certain discrepancies in what had been said at the screening interview and the asylum interview as to how the appellant’s sister and mother had died; in one case it was suggested that they were murdered and in the other that they had committed suicide. The appellant’s explanation did not appear satisfactory, nor did a correction letter received from the appellant’s solicitors. Nevertheless, the judge considered that this was not “a major factor with regard to the core of this claim”. The judge further referred to the appellant’s failure to claim asylum in Italy or France on his way to the United Kingdom. He noted that he was obliged by section 8 of the Asylum and Immigration (Treatment of Claimants etc) Act 2004 to treat that as an adverse credibility issue, but he stated that that was not determinative of the claim. The judge noted that the appellant’s account of what had happened to him in the past was very brief. If he were a Kuwaiti Bidoun he had a reasonable case for asylum, but the onus of establishing that, albeit not to a terribly high standard, lay on the appellant. While the appellant might have had reasons for not being particularly specific, simply to state that he was a Kuwaiti Bidoun with very little else does not come close to meeting the reasonably relaxed standard of proof that applied. The only background information that had been produced was that the appellant’s surname is one found mainly in Kuwait, but that was not considered nearly enough. The judge stated that he placed considerable importance as to the appellant’s lack of knowledge of the Bidoun and his own past despite the fact that he had been in his father’s company for several years (paragraph 44).
[9] The Upper Tribunal held that the judge of the First‑tier Tribunal was entitled to find that the evidence fell short of probation. The reasoning given was adequate as a matter of law to explain to the appellant why he had not succeeded. On that basis the decision of the First‑tier Tribunal was affirmed.
The appellant’s contentions
[10] For the appellant, it is contended that the determination of the First‑tier Tribunal, which was approved by the Upper Tribunal, disclosed three interrelated errors of law. First, the Tribunal appeared to have required the appellant to do more than state his claim, but that was an error; it is potentially enough for an applicant for asylum to state his claim: RA for leave to appeal, [2010] CSIH 23, at paragraph [4]. Secondly, there is no evidential requirement that an asylum seeker produce any evidence other than his own account of his claim to be persecuted on return. Thirdly, the Tribunal had failed to place the appellant’s claim in its context, since if it were true all that he could do as a practical matter would be to state his claim; if he were an undocumented Bidoun, ex hypothesi he would have no documentation to substantiate his claim. The appellant’s stating his claim should then lead to a considered assessment of the claim, in particular his general credibility.
[11] The First‑tier Tribunal, however, had failed to assess the appellant’s general credibility. Instead, it had focused upon the absence of evidence which, if the appellant’s account were true, could not logically or reasonably exist, and which would not as a matter of asylum law be required to discharge the low burden of proof. The appellant had produced cogent reasons for knowing little of the Bidoun: he had left Kuwait at the age of three, he had received very little education, and his father had been reluctant to speak about the family’s history. The Tribunal did not address these issues, and consequently did not reach a concluded view on whether or not the appellant’s core account could be accepted. Furthermore, no proper reason had been given for rejecting the appellant’s reasons for knowing little of the Bidoun. The correct approach to the appellant’s claim was first to consider whether the appellant’s stated ignorance of the family history was plausible or credible; secondly to consider the external consistency of the appellant’s account with other known facts; and thirdly to consider the general credibility of the appellant in the standard way. The Tribunal had not done that; it had required knowledge of the appellant’s ethnic group as a sine qua non of the assessment of his claim, and that was an error in law.
[12] Moreover, the Tribunal had failed to place the appellant’s claim in context and to assess it against external evidence, in accordance with the second of the three stages. The importance of context was emphasized in Horvath v Home Secretary, [1999] INLR 7, at paragraph [21], where it was emphasized that in order to assess credibility it is necessary to have a complete understanding of the entire picture and of the background information as to the country of origin. That would be particularly important in a case such as the present where the appellant asserts that he does not have detailed information about his own family. Features of the background information were consistent with the appellant’s account; in particular his account of leaving Kuwait in the early 1990s was consistent with background evidence relating to the Bidoun, who had left the country in substantial numbers at the time of the First Gulf War; his surname was one typically found in Kuwait; and the Bidoun as a people, especially those who are undocumented, are denied education.
Assessment of the First‑tier Tribunal’s approach
[13] The Upper Tribunal held that the judge of the First‑tier Tribunal was entitled to find that the evidence fell short of probation, and that his reasons were adequate. Consequently it is the decision of the First‑Tier Tribunal that is challenged in the proceedings in this Court. It is not disputed that undocumented Bidoun in Kuwait face a material risk of persecution; that is apparent from the decision of the Upper Tribunal in NM (documented/undocumented Bidoon: risk) Kuwait CG, which is summarized above at paragraph [2] and especially paragraph [3]. The fundamental issue confronting the Tribunal was accordingly the assessment of the appellant’s credibility: whether his claim to be an undocumented Kuwaiti Bidoun was genuine. The appellant’s criticism of the decision of the First‑tier Tribunal is essentially that the judge failed to adopt a proper approach to the assessment of credibility.
[14] We agree that a proper approach to credibility is essential, and that this requires the assessment of the appellant’s evidence and of his claim generally. In the case of a claim for asylum, at least three factors will normally be relevant. The first of these is the internal consistency of the appellant’s claim. The second is the inherent plausibility of that claim. The third is the consistency of the claim with external factors, of the sort that is typically found in country guidance. It may be theoretically correct, as is contended for the appellant, that an applicant for an asylum requires to do no more than state his claim, but the claim must still be examined for its consistency and inherent plausibility, and in nearly every case external information will be available against which the claim can be checked. In our opinion the judge of the First‑tier Tribunal has performed a proper assessment of this nature.
[15] Certain external information lends a degree of support to the appellant’s claim. The claim that the appellant left Kuwait in about 1991 is entirely consistent with the relevant country information, which discloses that many Bidoun left at that time. The appellant claims that his second name was one found in Kuwait; it is not clear that any objective evidence was produced in support of this assertion, but the judge of the First‑tier Tribunal appears to have accepted this as correct. The appellant claims to be uneducated, and that is consistent with the country information to the effect that the Bidoun are denied education; nevertheless the uneducated are found in every ethnic group, and thus this factor cannot be of great moment.
[16] Notwithstanding the existence of a degree of external support, the judge of the First‑tier Tribunal rejected the credibility of the appellant’s claim on the basis of its internal plausibility. In particular, he could not accept the appellant’s lack of knowledge of the background of the Bidoun and his family in Kuwait, in view of the fact that he had lived with his father until 2004, when he would be 16. The appellant explained this by referring to his father’s extreme reluctance to talk about the family background and the lack of education of both himself and his father. The judge refers to that evidence, both in his narration of the parties’ arguments (paragraph 25) and in his findings (paragraphs 40‑41 and 44). He considered that lack of education was no excuse for this lack of knowledge, as people gain experience of life whether they are educated or not. The judge does not refer expressly to the father’s reluctance to discuss the family background and history, but he states (paragraph 44) that he placed considerable importance on the appellant’s lack of knowledge despite being in his father’s company for several years. It is apparent that the judge considered that some, perhaps limited, knowledge of the family background would be almost inevitable in the circumstances. The appellant, however, displayed what the judge described as a “total lack of knowledge of the background of the Bidoun and his family in Kuwait” (paragraph 40). We are of opinion that in that situation the judge was fully entitled to draw an adverse inference as to the credibility of the appellant’s claim. Like him, we consider it almost inevitable that a person who has lived with his father to the age of 16 will have some knowledge about the family background, even if a very limited knowledge. That is so in spite of lack of education, and even if the background is distressing; in the present case, the appellant claims that his mother and sister were murdered shortly before he and his father left Kuwait. We should also note that the judge expressly stated that a perfectly reasonable explanation was given for the appellant’s not being able to describe the situation for Bidoun in Kuwait in any great detail, as he had left the country at the age of three (paragraph 39). For these reasons we consider that the judge’s reasoning on the critical issue cannot be faulted.
[17] As to the internal consistency of the appellant’s account, the judge of the First‑tier Tribunal refers to an apparent discrepancy between the screening interview and the asylum interview as to how the appellant’s mother and sister died (paragraph 42). At the screening interview he stated that they were murdered, and at the asylum interview that they had committed suicide. The judge did not consider the appellant’s explanation of this matter to be particularly satisfactory, and did not consider that a correction letter received from his solicitors resolved the matter properly. Consequently he concluded that the appellant said different things at different times. Nevertheless, he concluded that this was not a major factor with regard to the core of the claim. On that basis we cannot consider this a matter that had a significant effect on the ultimate decision to reject the claim. The judge also referred to the fact that the appellant had failed to claim asylum in Italy and France (paragraph 43), and stated that he was bound by section 8 of the Asylum and Immigration (Treatment of Claimants etc) Act 2004 to regard this as an adverse credibility issue. That is plainly a matter of statutory obligation. The judge does, however, go on to state that that was not determinative of the claim, which appears to us to be an entirely reasonable view.
[18] Counsel for the appellant criticized the judge of the First‑tier Tribunal for apparently requiring some sort of external confirmation of the appellant’s claim to be an undocumented Kuwaiti Bidoun. He pointed out that if he were undocumented this was ex hypothesi impossible. The latter proposition is plainly correct, but we do not consider that the judge attached significance to the lack of documentation; he relied rather on the inherent implausibility of the appellant’s total lack of knowledge of his family and Bidoun background. The judge stated (paragraph 44):
“to be in a position simply to state that you are a Kuwaiti Bidoun with very little else does not come close to meeting the albeit reasonably relaxed standard of proof that is on [the appellant]”.
That in our opinion does not amount to an assertion that documentation is invariably required. If, for example, the appellant had been able to provide some detail about his family and their background among the Bidoun, that would have provided support for his claim to belong to that group, and nothing that the judge says contradicts that. In such a case, it could not be said that apart from the claim that there was “very little else”. The problem in the present case was that there was relatively little in the way of background circumstances to corroborate the appellant’s claim, and his near total lack of knowledge of his family and of the Bidoun generally meant that there was no internal support for his claim. In these circumstances it cannot be said that the appellant’s lack of documentation was in any way fatal to his claim; it was the extent of his lack of background knowledge that was fatal.
[19] Nor can it be said, as the appellant submits, that the judge failed to address the question of credibility. In our opinion he clearly did so, principally in the manner described at paragraph [16] above. The judge thus clearly addressed the internal plausibility of the appellant’s account. It was submitted that he failed to balance the negative internal factors against positive external factors. In our opinion this criticism is misplaced. The judge referred to one external factor that supported the appellant’s claim, his Kuwaiti surname, but he considered that to be wholly outweighed by his lack of knowledge about his family and the Bidoun. He also referred to the appellant’s lack of education, in the context of rejecting it as a reason for the appellant’s lack of knowledge, but in our opinion the lack of education could not be regarded as a factor lending any significant support to a claim to be a Bidoun. The judge did not refer to the fact that according to the country guidance a substantial number of Bidoun left Kuwait in about 1990‑1991 at the time of the First Gulf War; indeed it is not apparent that any reference was made to this matter by the parties. We cannot think, however, that that omission is of any significance. The judge expressly stated that he attached considerable importance to the appellant’s lack of knowledge and the improbability of this if he truly were a Bidoun. We consider that this factor, which was clearly considered at length, plainly outweighs the fact that the appellant claimed to have left Kuwait at a time when many Bidoun did.
[20] Counsel for the appellant further submitted that the reasons given by the judge of the First‑tier Tribunal for not accepting the appellant’s evidence could not be supported, as in part they amounted to speculation. In Wani v Home Secretary, 2005 SLT 875, it was held that an adjudicator had speculated as to the likely behaviour of the Sudanese security forces, and that therefore his reasoning could not be supported. We agree entirely that judges should not speculate but, as is apparent from Wani, judges may still use common sense about matters that can be properly considered to fall within their knowledge and experience. In our opinion the judge’s assessment of the plausibility of the appellant’s account fell within this category; knowledge about one’s past is a feature common to the whole of mankind. Consequently we reject this criticism.
[21] Overall, we consider that the judge’s evaluation of the appellant’s claim discloses no error of law. In our opinion he was entitled to conclude that the appellant’s account was not credible, and the reasons given for that conclusion are adequate. In the circumstances the appeal must be refused.