IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM AN IMMIGRATION APPEAL TRIBUNAL
(Mr R G Care Presiding)
B e f o r e :
LORD JUSTICE SCOTT BAKER
SIR MARTIN NOURSE
|HAMED JASEM MOHAMED AL SHAMRI||Appellant/Respondent|
|THE SECRETARY OF STATE FOR THE HOME DEPARTMENT||Respondent/Appellant|
Smith Bernal Wordwave Limited
190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
MR SIMON HARDING (instructed by Howe & Co, Belmont House, 78-80 High Road, Wood Green) appeared on behalf of the Respondent
Friday, 13th June 2003
Crown Copyright ©
"I see no reason why the Secretary of State would be acting in violation of either Convention if he were now to open negotiations about the [respondent's] return to Kuwait, and to return him there if the negotiations are successful."
"The Adjudicator's findings that the [respondent] did not leave Kuwait for a Refugee Convention reason are sound and leave to appeal those findings is refused.
However, it would seem that the Adjudicator has not fully addressed the question of ability to return or the human rights claim. Leave to appeal those matters is granted."
There was, therefore, an appeal on those limited grounds.
(1) Any return would, first of all, involve inter-governmental negotiation. That matter is not disputed.
(2) This would inevitably, according to the Tribunal, involve disclosure of the asylum claim. That matter is very much disputed.
(3) Disclosure would amount to a breach of the assurance of confidentiality given to the respondent when interviewed. That too is disputed.
(4) That Bidoon are denied several rights available to other citizens in Kuwait. The Tribunal left open the question whether, in the circumstances, all Bidoon returning are at risk of persecution regardless of their individual circumstances. It is agreed that that point was left open. It is also agreed that Bidoon are denied certain rights available to other citizens. The Secretary of State, however, contends that the level of denial falls below, and some way below, the persecution and Article 3 thresholds.
(5) Although leave was not given on the asylum claim, the Tribunal was entitled to consider it. That point too is accepted by the Secretary of State, although Mr Wilken points out that one would expect it to be incumbent upon the Tribunal to spell out very clear reasons for allowing an appeal on a ground in respect of which leave had not been given to appeal.
(6) The Tribunal was in doubt whether the respondent had been persecuted and would be persecuted as a Bidoon on his return, and it expressed a similar doubt in respect of the Article 3 claim. Having left open the question whether Bidoon generally were at risk of persecution, the Tribunal did not identify that the scales were tipped in the respondent's case specifically. That is a matter, however, that is in dispute. Mr Wilken submits that no true identification was made of any point of substance. Mr Harding, for the respondent, on the other hand, submits that there was, on careful examination of the decision, a sufficient identification.
(1) The Tribunal failed to identify why the respondent, as opposed to all Bidoon, qualified for protection.
(2) The Tribunal failed to identify any factors why any discrimination which the respondent suffered or was likely to suffer amounted to persecution.
(3) The Tribunal made an error with regard to the burden of proof.
(4) There was an absence of any adequate findings on the human rights issue sufficient to tip the case from being one of discrimination falling below the line to one amounting to sufficient severity to qualify as a violation of Article 3.
(5) An error in paragraph 17 of the Immigration Appeal Tribunal's determination which relates to the point to which I have already referred about disclosure to the Kuwaiti authorities that the respondent was a failed asylum seeker.
Mr Wilken further submits that, taking this decision as a whole, there was a general lack of adequate reasons given. This is really an amalgam of the other points.
"There are indeed serious issues which arise out of the implementation of any decision to return Mr Al Shamri especially given the suggestion before the adjudicator that for it to be successful there would first have to be some negotiation between the two governments. This would inevitably involve a disclosure of his claim to asylum and this in itself would amount to a breach of assurance of confidentiality (which can be read at page 1) given to the appellant before he was interviewed. The exception there stated clearly cannot relate to disclosure to the appellant's own government without the appellant's consent and none has been given so far as we are aware."
"Information you give us will be treated in confidence, but may be disclosed to other government departments and agencies, local authorities and international organisations to enable them to carry out their functions. Information may also be disclosed in confidence to the asylum authorities of other countries which may have responsibility for considering your claim."
"Looking at the appellant's past (he left illegally and will immediately come to the attention of the authorities and has a previous conviction on an earlier attempt to leave), the findings by the adjudicator and the way in which she wrote her determination and all the background material before us we, like the Tribunal in Alenezi are left in doubt whether he has been and will be persecuted as Bidoon on his return."
"18. The plight of the Bidoon in Kuwait does remain a significant problem according to the US State Department's report. In June 1999 the Kuwaiti government instituted a new programme to address the issue requiring Bidoons to register with the government by 27 June 1999 to begin a process in which they could be documented as citizens. According to the report those who failed to register would be considered illegal residents and subject to deportation. In March 1999 the government stated that it would take the punitive action against those who did not rectify their status by the deadline. The Kuwaiti Government's legitimate concern is that "Bidoons" are concealing their true nationality in order to remain in the country, become citizens and enjoy the generous provisions provided. There is no indication before us what the punitive action is likely to consist of. Miss Ganning argues that the appellant is being denied the rights of citizenship and that itself amounts to persecution. She cites in support of that proposition the Court of Appeal's judgment in Lazaravic (1997) Imm AR 251. The Tribunal would hesitate to draw such a sweeping proposition from that authority. We must look at this appellant's circumstances in the event of him now being returned to Kuwait.
19. The heart of the appellant's claim is his dispute with the Sheika. Although he was able to have recourse to the courts the judgment he obtained was not put into force. He says that he was threatened by the Sheika with imprisonment. The Tribunal notes from the human rights reports that the Kuwaiti courts do often act independently and have reached judgments to protect Bidoons and have rejected the government's attempt to treat them as foreigners. However, it is also recorded that the government have sought to circumvent the consequences of such judgments particularly in the context of removal and expulsion, which are regarded as purely administrative matters.
20. In our view it certainly is arguable that were the appellant to be returned now to Kuwait he would be in a very different position from his position before his dispute with the Sheika. Then, he was able to carry on a business and use his Dominican Republic passport to enable him to travel to and from Kuwait. Now, he is someone who has taken a member of the Kuwaiti Royal family to court. Although he was successful, there was no remedy in reality. He has been threatened by the Sheika. The fact that he has been without remedy may give some credence to the appellant's assertions that before the trial attempts were made by the Kuwaiti police to persuade him to return the cheque and not to pursue the matter.
21. The Tribunal have no doubt that a Bidoon is certainly more vulnerable to oppressive treatment than a full Kuwaiti citizen would be. In our view in the light of the dispute with the Sheika, his vulnerability as a Bidoon and the threats which were made against him leave the Tribunal in the position where we have very real concerns as to the appellant's safety were he to be returned to Kuwait. In our view there is a risk of ill treatment which could amount to persecution on account of his ethnic origin as a Bidoon or degrading treatment within Article 3. We find that the risk is real rather than speculative. Such doubts that we have must be resolved in favour of the appellant.
22. Albeit with some hesitation in the light of the careful way the adjudicator considered this appeal, the Tribunal have come to the view that this appeal should be allowed on both asylum and human rights grounds."
"Fear of persecution, in the sense of the Convention, is not to be assimilated to a fear of instant personal danger arising out of an immediately presented predicament. The claimant to refugee status is not immediately threatened with danger arising out of a situation then confronting him. The question is what might happen if he were to return to the country of his nationality. He fears that he might be persecuted there. Whether that might happen can only be determined by examining the actual state of affairs in that country. If that examination shows that persecution might indeed take place then the fear is well-founded. Otherwise it is not."
At 994 at Lord Keith continued:
"In my opinion the requirement that an applicant's fear of persecution should be well-founded means that there has to be demonstrated a reasonable degree of likelihood that he will be persecuted for a Convention reason if returned to his own country."
Order: Appeal allowed. The decision of 13th August be quashed and the case be remitted to a differently constituted IAT for fresh reconsideration. No order as to costs, save for detailed assessment of the respondent's publicly funded costs.