C1/2003/0403 
Neutral Citation Number: [2003] EWCA Civ 912
IN THE SUPREME COURT OF JUDICATURE 
IN THE COURT OF APPEAL (CIVIL DIVISION) 
ON APPEAL FROM AN IMMIGRATION APPEAL TRIBUNAL
(Mr R G Care Presiding)
Royal Courts of Justice 
Strand 
London, WC2 

Friday, 13th June 2003
 B E F O R E:

LORD JUSTICE PETER GIBSON 
LORD JUSTICE SCOTT BAKER 
SIR MARTIN NOURSE 
 
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HAMED JASEM MOHAMED AL SHAMRI
Appellant/Respondent
-v-
 
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT 
Respondent/Appellant 
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(Computer-Aided Transcript of the Palantype Notes of
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MR SEAN WILKEN (instructed by Treasury Solicitor, 28 Broadway, London SW1H 9JS) appeared on behalf of the Appellant
MR SIMON HARDING (instructed by Howe & Co, Belmont House, 78-80 High Road, Wood Green) appeared on behalf of the Respondent
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J U D G M E N T 
(As Approved by the Court)
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Crown Copyright©
Friday, 13th June 2003 
J U D G M E N T 

1.	LORD JUSTICE PETER GIBSON:  I will ask Scott Baker LJ to give the first judgment. 
2.	LORD JUSTICE SCOTT BAKER:  This is an appeal by the Secretary of State for the Home Department against a decision of the Immigration Appeal Tribunal made on 13th August 2002 presided over by Mr R G Care.  Permission to appeal was granted by another division of the Immigration Appeal Tribunal.
3.	The facts can be relatively shortly stated.  The respondent is a Bidoon from Kuwait.  He arrived in the United Kingdom on 4th December 1999 and claimed asylum on arrival.  He was in possession of a Saudi passport which was not his own, but he was forthcoming about this (without any attempt at deception) when questioned about it.  He told the immigration officer that he was a Bidoon from Kuwait and that he had travelled on the Saudi passport which belonged to the brother of his friend.  He had gone to Saudi Arabia, then to Jordan, Syria and Tunisia.  Twice he had been turned back to Syria from Tunisia.  Eventually he had gone on to Oman and thence to the United Kingdom.  He had tried to leave Kuwait two years before, but he had been stopped at the airport with a false passport and imprisoned for six months.  
4.	The respondent is now 33 years of age.  He told the immigration officer that he had been wanting to leave Kuwait since 1985 when, as he put it, he had been kicked out of school.  There was a law that applied to Bidoon that if they failed their exams for two years they had to be expelled.  There were other ways in which Bidoon were discriminated against.  He had been imprisoned, he said, but a Kuwaiti national had been prepared to sponsor him and so he was released.  He had been unable to work in Kuwait because it was illegal.  He had a father, mother and five siblings in that country.  His asylum claim was based on the fact that he was a Bidoon.
5.	On 2nd March 2001 the Secretary of State rejected his claim for asylum whilst acknowledging that the Bidoon were not treated with the same consideration as other Kuwaiti citizens and that the treatment they received as a group did not, in the circumstances, engage the United Kingdom's obligations under the 1951 United Nations Refugee Convention.  The respondent could return to Kuwait and live there under the protection of permanent residency in accordance with a programme that had been set up by the Kuwaiti government.
6.	The Secretary of State noted that the respondent claimed to have been imprisoned in 1991, after the Gulf War, on suspicion of collaborating with the Iraqi forces, but that he had not claimed to have been ill-treated whilst detained and that he had subsequently been released without charge.  The Secretary of State further noted that the court that had been responsible for the trials regarding collaboration had been abolished and that only some 17 Bidoon remained in prison because of those convictions.  The Secretary of State was of the opinion that the respondent was unlikely to face any persecution on these grounds.  The imprisonment that had been imposed when he had first tried to leave Kuwait was because he was trying to leave on a false passport.  There was not any appropriate basis on which to grant asylum.
7.	The respondent appealed to an adjudicator, Mrs P A Simons.  He told her that he had been slapped, kicked and ill-treated during his detention.  He said it was not correct, as he was recorded as having said in interview, that he had been detained for nine months, it was, in fact, only for four days, and he was released after he had gone on hunger strike.  In this and other respects the adjudicator was being told a materially different story from that given in interview.  However, it was not disputed (1) that he was a Bidoon and (2) that he had been detained. 
8.	The adjudicator concluded that the respondent appeared to be escalating his claim.  She had doubts about his claims to have been ill-treated and detained.  Even giving him the benefit of the doubt, whatever had happened to him fell below the persecution threshold.  She found it was unlikely that the respondent, if returned to Kuwait, would face any further measures concerning the period when he was in Kuwait under Iraqi occupation.  Furthermore, there was no evidence of any risk of any violation of Articles 3 or 8 of the European Convention on Human Rights and Fundamental Freedoms in the event that he was returned.  His appeal was therefore rejected.
9.	It was also argued on behalf of the respondent that if he was not allowed back into Kuwait this too would amount to a violation of his Convention rights and persecution.  The adjudicator said:
"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."
10.	The respondent was given permission to appeal to the Immigration Appeal Tribunal.  The Tribunal in granting permission said:
"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.
11.	The hearing before the adjudicator had been adjourned at the request of the Home Office so that they could consider the question of the returnability of the respondent to Kuwait, and the Home Office was directed to notify the appellate authority of its decision seven days before the adjourned hearing.  The Home Office, however, regrettably, failed to comply with the order.  The adjudicator was told that there were so few applicants from Kuwait that there was no specific policy on returnability.  Each case was decided on the basis of negotiations with the Kuwait government.  Cases might turn out to be decided either way.  In most cases there was no problem.
12.	The Immigration Appeal Tribunal, having considered the appeal, allowed it.  The following features can be gleaned from perusal of the Tribunal's decision:  
(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.   
13.	In his skeleton argument for the Secretary of State Mr Wilken advances two main grounds of appeal.  First, that the Tribunal erred in concluding that negotiations for the respondent's return would inevitably lead to disclosure of his asylum claim.  First, he submits that the finding was unsupported by any evidence and, second, he submits that, in breach of rule 22(4) of the Rules, the point was never canvassed at the hearing by the Tribunal prior to making the finding.  Second, Mr Wilken submits that the Tribunal erred in considering whether Article 3 would be breached in the event of a return taking place.  The Tribunal in granting permission said that both grounds were, in its opinion, arguable.  
14.	The Secretary of State today submits that the Tribunal fell into error both in relation to the manner in which it considered the respondent's case and in its substantive conclusions.  Mr Wilken today has identified what he describes as five separate flaws in the Tribunal's determination.  They are as follows:  
(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.
15.	Dealing first with the question of inter-governmental negotiations, it is, as I have mentioned, common ground that these will take place before a decision is made whether the respondent is to be returned or not.  One of two conclusions will be reached.  Either the respondent can be returned, or he cannot.  If Kuwait refuse to accept him, he will not be returned.  Mr Wilken submits that a refusal to accept him back into Kuwait cannot trigger a breach of Article 3.  At best, he submits, it might trigger an obligation on the part of the Secretary of State to consider an application by the respondent for exceptional leave to remain.  This point was not pursued by Mr Harding in argument before us.  He submits that in the event that the case is remitted to a fresh tribunal for further consideration, this is a point which he would wish to argue and would be entitled to argue unless this court imposed narrower terms in the event of any remittal.  Without going into the point in any detail, it seems to me that, on the face of it, Mr Wilken advances a formidable case.  But if, as I think it should, this case is to be remitted to the Tribunal for further consideration, I would not seek, for my part, to shut out the respondent from arguing this or any other point that may be open to him.  The alternative is that Kuwait do agree to accept the return of the respondent. Mr Harding submits that it is inevitable, in these circumstances, that it will be disclosed that the respondent is a failed asylum seeker.  But he further submits that when one examines the reasoning (such as it is) of the Tribunal, this is not a point that in fact had any bearing at all on the Tribunal's decision.
16.	In my judgment, the Tribunal in referring to this point at paragraph 17 did make the point because it was intended to carry some weight in their reasoning.  What they said was this:
"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."
17.	In my judgment, Mr Wilken is quite right that this finding was not based on any evidence whatever and, furthermore, the Secretary of State was never given an opportunity to deal with the point as he should have been.  Mr Wilken observes in passing that, had he been given an opportunity to deal with this point, the Tribunal would have been told that as a matter of policy a foreign government is not ordinarily told that a returned asylum seeker is, in fact, a failed asylum seeker.  But the important point, it seems to me, is the fact that there was no evidence on which the Tribunal could reach the conclusion that it did.
18.	As to the further point about breach of undertaking, at the commencement of his interview the respondent was given the following assurance, as are all asylum seekers who are interviewed, in these terms:
"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."
19.	The point is taken in Mr Wilken's skeleton argument that that exception does not include disclosure to the Kuwaiti Government; and that seems to me to be clearly right.  However, the fact that the respondent is an asylum seeker is, it seems to me, a factor that pre-dates the interview as such, and therefore, on the face of it, the fact of being an asylum seeker is not something which falls within that undertaking that is given at the commencement of the interview.  The Tribunal, having made the reference to which I have referred at paragraph 17, did not go on to say what conclusion it drew from the fact that there would be in its view disclosure to the Kuwaiti authorities.  However, it seems to me, in particular bearing in mind that paragraph 17 is something that comes immediately under the heading "Reasons for decision", that that is something which at any rate carried some weight in the minds of the Tribunal and, in my judgment, is something that it was not, for the reasons I have indicated, entitled to take into account.
20.	Returning then to the six errors identified by Mr Wilken, the first error -- and this is in my judgment a fundamental one -- is that the Tribunal failed to identify why the respondent in particular, as opposed to Bidoon in general, qualified for protection.  In paragraph 18 of its decision the Tribunal goes into some detail about the position of Bidoon in general.  In paragraph 20 there is some reference to the respondent's case in particular.  But all the Tribunal said was this:
"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."
21.	We have been referred to the decision of Alenezi, which was a decision by another constitution of the Immigration Appeal Tribunal, [2002] UK IAT 00924, the hearing taking place in February 2002 and the decision being notified on 28th March.  It is paragraphs 18 to 22 of that decision that are material.  They run as follows:
"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."
22.	The clear distinction between Alenezi and the present case is that in Alenezi the Tribunal went into some detail to point out those facts which took the applicant out of the general run of Bidoon and placed him in a situation where there was a specific risk to him.  That, in my judgment, was not done by the Tribunal in the present case.  Mr Harding relies, in particular, on the fact that the respondent has already been imprisoned for leaving Kuwait illegally, that that fact alone illustrates that he is a Bidoon and that the same law would not bite on an ordinary Kuwaiti national because he would not have the same restrictions imposed upon him upon leaving the country.  I am unpersuaded that that matter is sufficient to justify the findings of the Tribunal in the present case.  Indeed, the Tribunal has, in my judgment, quite simply failed to identify those matters on which it relied to take the respondent out of the general category of Bidoon who certainly are disadvantaged.  But that was not the relevant consideration here.  The relevant consideration, on the one hand, is persecution for a Convention reason and, on the other, violation of Article 3, which are two matters that overlap.  
23.	I have dealt with both the first and second flaws identified by Mr Wilken.  The third flaw -- and in my judgment it is a significant one -- relates to the question of the burden of proof.  In paragraph 20, to which I have already referred, the Tribunal said that it was left in doubt whether he has been persecuted and will be persecuted as a Bidoon on his return.  Mr Wilken submits that this is, in reality, a reversal of the burden of proof.  
24.	It is, in my judgment, pertinent to go back to the case of Sivakumaran [1988] 1 AC 958, and in particular to two passages from Lord Keith's speech at 993 at D, where he said:
"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."
25.	In my judgment, the Tribunal did not apply the appropriate test, and it is not good enough to say that they were left in doubt about the situation without conducting a proper analysis of the facts which gave rise, in their view, to a risk of persecution or to a risk of violation of Article 3.
26.	Mr Wilkin's fourth point is that there was an absence of any proper finding on the human rights question: no finding as to the level of severity of the treatment to which he might be subjected, which on the face of it and as described would amount to discrimination.  I agree with this submission; nothing further, in my judgment, is identified.
27.	The fifth point related to disclosure of the fact that the respondent was an asylum seeker, with regard to which I have already made a number of observations.
28.	The final point is a general one that this was a determination that was markedly lacking in reasons.  In my judgment, there is substance, likewise, in that.
29.	Accordingly, it seems to me that the appropriate course is that this case should be remitted to the Immigration Appeal Tribunal to be reheard by a different tribunal.  I would allow the appeal accordingly.
30.	SIR MARTIN NOURSE:  I agree.
31.	LORD JUSTICE PETER GIBSON:  I also agree.
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.