ON APPEAL FROM QUEEN'S BENCH DIVISION
(HIS HONOUR JUDGE KAYE QC)
Strand, London, WC2A 2LL
B e f o r e :
LADY JUSTICE HALLETT
LORD JUSTICE ELIAS
| The Queen on the application of (ZA) ( Kuwait )
|- and -
Secretary of State for the Home Department
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Mr Niazi Fetto ( instructed by the Treasury Solicitor) appeared on behalf of the Respondent.
Crown Copyright ©
Lord Justice Elias:
"The word 'Bedoon' is from the Arabic 'bedoon' meaning 'the without' and the term 'bedoon jinsiyya' is used in Kuwait to mean 'without nationality' or 'without citizenship'. It appears that in fact the Bedoon consist of an extended group of tribes spread across the borders between Iraq, Iran and Syria and Saudi Arabia and of course Kuwait who are largely of the Shi'ite faith. Many of those tribes have inhabited the region in or around Kuwait for centuries. The term is not to be confused with 'Bedouin' which derives from the Arabic word 'badawi' meaning nomad."
The new fresh claim
"Where a human rights or asylum claim has been refused and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and, if rejected, will then determine whether they amount to a fresh claim person. The submission will amount to a fresh claim if significantly different from the material that has previously been considered. The submissions will
only be significantly different if the content:
i. had not already been considered; and
ii. taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection."
"First, whether the new material is significantly different from that already submitted on the basis of which the asylum claim has failed to be judged under Rule 353 what that to be judged under Rule 353 1 according to whether the content of the material has already been considered. If the material is not significantly different then the Secretary of State has to go no further."
It is only if material is significantly different that it is necessary to consider whether it creates a realistic prospect of success . In determining whether there is a realistic prospect of success the Secretary of State must ask himself whether an independent tribunal might realistically come down in favour of the applicant's asylum or human rights claim on considering the new material together with the material previously considered: see AK (Afghanistan v SSHD  EWCA Civ 535. Provided the Secretary of State properly directs himself a judge can only interfere on traditional Wednesbury grounds. Some cases in this court had raised doubts as whether that was the correct test, but in R (MM (Tanzania)) v SSHD  EWCA Civ 193 this court confirmed that it is indeed the appropriate test.
"The claimant needed to return to Kuwait using his real identity and using genuine documents which, so far as the defendant was concerned, the claimant seems somehow to be expected to obtain. He could not, however, obtain the necessary travel documents from the Kuwaiti Embassy to enable him to return to Kuwait since the Embassy did not regard him as a 'genuine' Kuwaiti."
" ...there is no forensic evidence about the green card produced to show or support his case and it is a genuine document despite the fact that he has had legal advice and assistance now for some time. More importantly there is nothing from the family in Kuwait -- there are no witness statements, no further documents, no supporting evidence, statements, letters or anything of that kind that might go to support his claim that he is indeed a stateless bedoon. The impasse is therefore unfortunate."
Lady Justice Hallett:
Lord Justice Thomas :
Order: Appeal dismissed