The Appellant, a Kuwaiti woman claiming to be a stateless Bidun, entered the UK using false documents and applied for asylum. The Home Office refused her claim, arguing she was not credible and had not proved the authenticity of her birth certificate and registration card. The Asylum and Immigration Tribunal upheld this decision, citing inconsistencies in her testimony and giving limited weight to her documents despite accepting they showed no signs of fabrication.
On appeal, a Special Immigration Judge (“SIJ”) found it inconsistent for the initial judge to accept the documents’ authenticity yet decline to give them weight. However, rather than allow the appeal, the SIJ ordered a full rehearing. At the de novo hearing, her appeal was again dismissed. The Appellant then appealed to the Court of Appeal, which found that the SIJ had erred in its decision. The Court held that in cases where status is the sole issue, credible documents - if not undermined by specific evidence - should be decisive. It ruled that unrelated credibility concerns were irrelevant. The Court concluded that the initial tribunal’s reasoning was flawed and should have resulted in the appeal being allowed. The Appellant’s appeal was therefore granted.
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When Kuwait became independent in 1961, the government implemented a citizenship registration system that favoured settled families who could prove long-term residence, excluding many nomadic individuals and others who had lived in Kuwait for generations but lacked documentation. As a result, these individuals were not granted nationality and became known as “Bidun”. The Biduns are not only stateless but they also cannot vote, cannot obtain a passport and have no rights to education and healthcare.
In order to prove their status as an undocumented Bidun for the purposes of asylum in the UK, an individual needs to show their Kuwaiti identity card and Kuwaiti birth certificate.
The Appellant in this case is a Kuwaiti woman who travelled to the UK on false travel documents (as Bidun cannot obtain legitimate travel documents). She sought asylum as a Bidun but the Home Office rejected her claim on the basis that on the basis that the Appellant was not credible and had not discharged the burden of proving that the birth certificate and registration card were genuine.
The Appellant appealed the Home Office decision to the Asylum and Immigration Tribunal (the “AIT”). At first instance, the AIT dismissed the Appellant’s appeal (the “First Instance Decision”). It stated that although the Home Office’s investigation had not revealed anything to suggest that the documents were fabricated and that their lack of security features should not raise doubts about their reliability, he would nevertheless give little weight to them because they were not on their own sufficient to prove that she was a Bidun, particularly in the light of inconsistencies in her evidence. The inconsistencies in question were threefold: (1) the appellant was unclear about when her father was first arrested; (2) her story about her father and sister being detained for three days seemed unlikely, as such detentions are usually shorter; and (3) a witness she called gave evidence about their past in Kuwait that did not match her own account.
The Appellant appealed the First Instance Decision.
On appeal, the SIJ concluded that, since the immigration judge had made positive findings about the documents, it was perverse for him to then dismiss their significance in deciding whether the Applicant was a Bidun. However, instead of allowing the appeal, the SIJ ordered a de novo hearing.
At the de novo hearing, the judge once again, dismissed the Appellant’s appeal.
The Appellant argued that the SIJ was wrong to have ordered a de novo hearing rather than reversing the First Instance Decision.
The Home Office argued that the SIJ was right to have ordered a de novo hearing rather than reversing the First Instance Decision, based on the principles established in the case of Tanveer Ahmed [2002] UKIAT 004. The principles in question are threefold (see para 38 of that decision):
- “In asylum and human rights cases it is for an individual claimant to show that a document on which he seeks to rely can be relied on.
- The decision maker should consider whether a document is one on which reliance should properly be placed after looking at all the evidence in the round.
- Only very rarely will there be the need to make an allegation of forgery, or evidence strong enough to support it. The allegation should not be made without such evidence. Failure to establish the allegation on the balance of probabilities to the higher civil standard does not show that a document is reliable. The decision maker still needs to apply principles 1 and 2.”
The Court of Appeal granted the Appellant’s appeal.
It held that the guidance in Tanveer Ahmed [2002] UKIAT 004 should be applied carefully and with regards to the particular issues of the case. The court held - where the only issue is the appellant’s status and the documents provided (if genuine) clearly prove that status - it is usually not helpful or relevant to assess the appellant’s honesty or reliability in other ways. In the present case, it was therefore irrelevant to the veracity of the Appellant’s documents whether the Appellant’s family had been harassed by the police or whether an unreliable witness purported to confirm her status. On the other hand, the court held that it might have mattered if there had been evidence showing that her date of birth was different from that on the birth certificate or casting doubt on the genuineness of the aliens registration certificate; but there was none.
The Court of Appeal held that the SIJ was wrong in sending the appeal for full redetermination. It held that the First Instance Decision “was not a determination so garbled or so muddled that it could not be unravelled. It was one which had purported to modify one finding by another which had no intelligible bearing on it. The two are readily severable, and when severed leave standing a finding which should have concluded the appeal in the appellant’s favour. Put, as the SIJ put it, in terms of perversity, the determination is rendered coherent by removing its contradictory element without the need of redetermination.”
The Court of Appeal allowed the Appellants appeal.
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BA and others (Bedoon–statelessness–risk of persecution) Kuwait CG [2004] UKIAT 00256.
HE (Bidoon-statelessness-risk of persecution) Kuwait CG UKAIT 00051
Tanveer Ahmed [2002] UKIAT 004
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