England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM (DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)

		Royal Courts of Justice Strand, London, WC2A 2LL
		6 February 2013

Sir Stanley Burnton:

Introduction

1. This is an appeal by the Appellant against the determination dated 4 May 2011 of Senior Immigration Judge Latter, in the Upper Tribunal (Immigration and Asylum Chamber), dismissing the Appellant's appeal against the decision of Immigration Judge Steer made as long ago as 20 January 2009, which itself had dismissed his appeal against the decision of the Secretary of State refusing him asylum and leave to enter the United Kingdom. There has been a proliferation of proceedings concerning the Appellant, involving doubtless very considerable legal costs on both sides, and other resources, which is at best highly regrettable, and says little about the efficiency of our immigration procedures.

The facts

2. In order to understand the determination of Senior Immigration Judge Latter and this appeal, it is necessary to set out much of the undisputed facts.
3. The Senior Immigration Judge set out some of the Appellant's claims in paragraph 2 of his determination:

"He claims to be Amin Zidan Abdullah born in Saudi Arabia on 25 December 1987, that he is a stateless Bidoon and for this reason will be at real risk of persecution or serious harm on return to Saudi Arabia. He says that he was a foundling and never knew his parents who both died in a road accident when he was very young. He was then fostered by a Palestinian family living in Jeddah; they looked after him until he was about 15 when they left Saudi Arabia to live in the United Arab Emirates. The appellant was told that he could not go with them because he had no papers confirming his identity. He remained in Saudi Arabia until June 2003 when, using a Saudi passport given to him by a Saudi national, he was able to leave for France."

4. Having tried to claim asylum in France unsuccessfully, the Appellant went to Holland, and from there to Germany and then to Norway. He claimed asylum in Norway. The Norwegian authorities returned him to Germany, presumably under the Dublin Convention, where he says that he had to pay a financial penalty and was detained. In November 2004 he returned to Norway, whence he was again returned to Germany and detained. He then left Germany for France, and then came to this country on the back of a lorry with the help of an agent to whom he paid €1,500. The determination under appeal picks up his story as follows:

"4. In November 2004 he returned to Norway for a second time, again claiming asylum but was returned to Munich and then to a detention centre where he stayed for about 4 to 5 months. After he was beaten up by a group of Kurds he spent a week in hospital and then left Germany for France. He did not claim asylum but travelled to the UK in the back of a lorry with the help of agent. On arrival on 3 July 2005 he claimed asylum. In his screening interview on 4 July 2005 the appellant gave the name he is currently using; he claimed to be a Palestinian … And said that he was born in Palestine … He gave his parents' names … with their nationality as Palestinian, saying that they were deceased. In further details … he said that his parents had left Palestine before he was born, he was born in Saudi Arabia, he left there are about a month previously, went to Italy by air and then travel to France where he spent 2 weeks before being put in a lorry for the UK.

5. Shortly after the screening interview the appellant went to ground. He claims that he was afraid of being returned to Germany. He was able to obtain a false passport in the name of Sami Algefre to work to support himself. He was arrested on 19 October 2007 and on 10 January 2008 sentenced to 9 months' imprisonment for using a false instrument. There was a further screening interview in the morning on 28 February 2008 and a full asylum interview in the afternoon. At the screening interview the appellant is recorded as giving his full name as Sami Algefre but this is qualified by a note that this is a name the smuggler had given him and that his true name was Amin Zidan Abdullah. He gave his date of birth as 25 December 1981, the place of birth Kandara District, Jeddah, Saudi Arabia and his nationality as Bidoon, stateless. He gave his parents' names, saying that he did not know their places of birth and that they had both died in a car accident when he was very young. There is no entry for the nationality. He said that he had left Saudi Arabia about 3 years previously and fled to Paris. After he arrived in this country he had spent a few days in Margate and then gone to the Home Office in Croydon but as they did not help him, he had lived his life here. He said that he had used a passport belonging to a Saudi national to leave and later destroyed it. He paid an agent €1500 to arrange for his travel from France to the UK. He claimed that because he was a Bidoon he could not have a passport or identity card. He had no status in Saudi Arabia and could not live there.

6. In his full interview he repeated that he had been born in Jeddah in Saudi Arabia and that his parents had both died when he was very young. When he grew up he was told by the family who fostered him that they had died in a car accident. In the interview he maintained that his problem was that he was a Bidoon who was stateless and could not get Saudi nationality. In questions at the end of his interview he accepted that he had been to Norway and claimed asylum there. In the appeal papers there is an attendance note … Dated 12 March 2008 recording the basis of the appellant's claim as follows:

'I am applying for asylum because I have no country to go back to. I was born in Saudi Arabia, my parents were Palestinian and they died when I was very young. I was raised by some good people. I did not attend school. When I applied for asylum in Norway I posed myself as a Somali National. I worked on a false French passport. I was arrested for 9 months. I served half the sentence. I was released on 4 March 2008.'

…"

5. The Secretary of State believed that the Appellant was a national of Saudi Arabia, but did not accept that he was stateless, and thought that he could be removed to that country. She rejected his claim to be at risk of persecution and rejected his claim for asylum.
6. The determination of the Upper Tribunal under appeal resulted from a previous decision of the Court of Appeal which had set aside a previous decision of the Upper Tribunal, and ordered that the finding that he had been born in Saudi Arabia was to stand but that all other issues were to be at large.
7. In July 2010 the Appellant signed a personal information form seeking to elicit from the Embassy of Saudi Arabia whether he was a Saudi citizen. He inserted his present name, but none of his aliases, one of the two dates of birth he had previously given, his place of birth as Jeddah and his home address as Kandara District Jeddah. He stated that he had no next of kin in Saudi Arabia. He did not give the names of those he claimed had fostered him in Saudi Arabia, or the date or approximate date when he claimed they had left that country. Not surprisingly, given the scant information provided, the Embassy reported that no record of the Appellant had been found and that he was not a Saudi national.
8. In summary, the Appellant has used at least one alias (Sami Algefre), he has given two dates of birth, (in 1981 and 1987), and he has used at least three false passports. When in January 2008 he was sentenced to 9 months' imprisonment for obtaining and using a false passport in order to continue to live and to work in this country, he was recommended for deportation. He has sought asylum on the basis of a claim that he is Bidoon and also on the inconsistent basis that he is of Palestinian origin.
9. Senior Immigration Judge Latter rejected the Appellant's evidence that he had been ill-treated or wrongfully imprisoned in Germany. In paragraph 35 of his determination, he said:

"35. It is clear that the appellant has used false identities in support of claims made in Norway, Germany and the UK. He has given different dates of birth and there is no reliable independent documentation to confirm his true identity."

10. In paragraph 41, the Judge concluded that there was no reasonable likelihood that the Appellant is a Bidoon. He then considered his claim to be Palestinian:

"43. Although I am not satisfied to the lower standard of proof that the appellant is a Bidoon, I find this there is a reasonable degree of likelihood that he is in fact a Palestinian in light of the fact that it is accepted that there are a large number of Palestinians in Saudi Arabia, his evidence about what he was told by his foster parents about his own parentage and the fact that he claimed to be a Palestinian when he first arrived in the UK. Taken with the fact that the Saudi authorities have no record of him as a citizen, albeit on the limited information supplied, these factors satisfy me that there is at least a serious possibility that the appellant is in fact a Palestinian rather than a national Saudi Arabia."

11. Finally, in paragraph 45, the Judge stated:

"45. It may be that the appellant cannot in fact be returned to Saudi Arabia as he is not accepted to be a national of that country. He did not arrive in this country from Saudi Arabia and there is no reason at present to believe that he would be admitted there. It must now be for the respondent to consider in the light of any further enquiries and evidence what further decisions should be made about the appellant's status in this country. Mr Jacob sought to argue that the appellant should have leave on article 8 grounds while any such enquiries are made but I am not satisfied that article 8 is engaged in these circumstances. "

12. Accordingly, the Senior Immigration Judge dismissed the appeal on asylum, humanitarian protection and human rights grounds.

The appeal before us

13. The only ground of appeal is that the Judge erred in law in holding that Article 8 was not engaged.
14. On behalf of the Appellant, Mr Jacobs submitted that the Judge had held that, having been born in Saudi Arabia, the Appellant is of Palestinian origin, and that as such he could not return to, or be returned to, Saudi Arabia. Without leave to remain, he could not lawfully work in this country, and would be deprived of any social security support here (save under section 4 of the Immigration and Asylum Act 1999). In these circumstances, article 8 requires the Secretary of State to grant him leave to remain in this country, at least pending any further attempts to obtain Saudi agreement to his return there. The Senior Immigration Judge had erred in concluding that article 8 was not engaged. He should have held that it was engaged and carried out the necessary balancing exercise required by article 8.2. Mr Jacobs accepted that leave might be limited in time, but he did not specify what period of leave the Secretary of State was required to grant. He contended that this Court should either require the grant of leave to remain or remit the appeal to the Upper Tribunal for the necessary balancing exercise under Article 8.2 to be carried out.
15. The principal submissions of Miss Busch on behalf of the Secretary of State were that the Senior Immigration Judge had not made any finding to the requisite standard that the Appellant is of Palestinian origin, or that his return to Saudi Arabia is and will remain impossible. The Secretary of State was not under any obligation to grant him leave to remain for any period.

Discussion

16. I do not think that the Senior Immigration Judge did find that the Appellant is of Palestinian origin and in consequence unable to return to Saudi Arabia, and certainly did not do so to the applicable standard of proof. In my judgment (with which Mummery LJ agreed) in MA (Ethiopia) v Secretary of State for the Home Department [2009] EWCA Civ 289, at paragraph 78, I said that, in contrast to the question of risk of persecution on return, inability to return is to be proved on the balance of probabilities. The Senior Immigration Judge rejected the Appellant's claim that he would be persecuted if returned to Saudi Arabia. In these circumstances it was and is for the Appellant to prove on a balance of probabilities that he is a Palestinian and for that reason unable to return to Saudi Arabia. All that the Senior Immigration Judge found was that was a "reasonable degree of likelihood" that he is of Palestinian origin.
17. Similarly, in relation to the Secretary of State's ability to return the Appellant to Saudi Arabia, what the Senior Immigration Judge said was only that "It may be that the appellant cannot in fact be returned to Saudi Arabia …"
18. It is not surprising that the Senior Immigration Judge was unable to made a positive finding that the Appellant is of Palestinian origin, and unable to return to Saudi Arabia on that account, given the inconsistencies in his previous claims and the lack of any objective evidence supporting his present claim.
19. I reject the submission that because the Secretary of State was at the date of the decision of the Upper Tribunal unable to enforce the return of the Appellant to Saudi Arabia, article 8 required her to grant him leave to remain. Article 8 does not confer a right to reside in the country of one's choice. The Appellant chooses to seek to reside in this country, but was not compelled to come here by any threat of persecution. Mr Jacobs accepted that if the Appellant could be returned, he could have no article 8 claim to remain here. That is doubtless because there was no evidence before the Upper Tribunal that he had established any personal or family life here.
20. The Appellant's situation is of his own doing. In this respect his case is entirely different from those considered by the European Court of Human Rights in Kaftailova v Latvia (Application no. 59643/00), where the applicant, who had been a Soviet citizen of Georgian origin, was a resident of Latvia and had been so since 1984, but had become stateless as a result of the break-up of the Soviet Union and the independence of Latvia. Similarly, in Kuric and others v Slovenia (Application no. 26828/06), the applicants, who were not of Slovenian origin, had long been lawfully resident in Slovenia, but had lost their right to reside there as a result of the break-up of Yugoslavia and the independence of Slovenia. The European Court of Human Rights held that their loss of the right of residence engaged (and indeed infringed) their Article 8 rights.
21. The Appellant relies on what was said obiter by Lady Hale in Khadir v Secretary of State for the Home Department [2005] UKHL 39 [2006] 1 AC 207 [2005] 3 WLR 1, at paragraph 4:

"There may come a time when the prospects of the person ever being able safely to return, whether voluntarily or compulsorily, are so remote that it would irrational to deny him the status which would enable him to make a proper contribution to the community here, ….

However, the Senior Immigration Judge expressly envisaged that there was a prospect of further enquiries being made and further evidence being obtained that would bear upon the Secretary of State's decision. Indeed, as I have already mentioned, it was only pending such enquiries that Mr Jacobs submitted in the Upper Tribunal that leave to remain should be given.

22. I would dismiss this appeal on the ground that the Immigration Judge was entitled to conclude that at the date of his decision Article 8 did not require the Secretary of State to grant the Appellant leave to remain while seeking to secure his return to Saudi Arabia. If Article 8 was engaged, there could be only one answer to the balancing exercise required by Article 8.2, namely that the Secretary of State's refusal to grant leave to remain was justified by the need to maintain a system of sensible immigration control.
23. In practice, the Secretary of State is only able to enforce the return of a claimant to the country of his nationality or where he has an established right of residence. Where a claimant is not entitled to asylum, but seeks leave to remain here on the basis that he cannot return to his country of nationality or to his former country of residence, it may be relevant whether there are other countries to which he is able to go voluntarily and to reside lawfully. I would leave it to be decided in a case where it is necessary to do so whether, in such circumstances, it is for the claimant to prove that he cannot go to any other country, or that it is for the Secretary of State to show that he could live lawfully elsewhere.
24. Since writing this judgment, I have read in draft the judgment of Lord Justice Beatson. I agree with his observations in paragraphs 26 to 29.

Lord Justice Beatson:

25. I have read the judgment of Sir Stanley Burnton in draft and respectfully agree with his conclusion that this appeal must be dismissed for the reasons he gives.
26. I add two observations. The first concerns the submissions of Mr Jacobs based on the statement of Baroness Hale in Khadir's case, and Sedley and Toulson LJJ in MS and others [2009] EWCA Civ 1310 at [2], [27] and [45], on the so-called "limbo" point. It also concerns his reliance on analogical support from the decision of Blake J in Tekle's case [2008] EWHC 3064 (Admin) that denying the right to work to applicants for asylum whose applications remain undecided for substantial periods breaches their rights under Article 8.
27. Mr Jacobs argued that that the appellant's statelessness meant that, at the time of the Upper Tribunal's decision, there was no prospect of removing him and that consequently Article 8 was engaged and entitled him to limited leave. He maintained that Article 8 gave the appellant the right to have a private life "somewhere", which, because, as at the date of the decision there was no prospect of removing him to Saudi Arabia, had to be this country. He argued that leaving the appellant without status and consequently with limited access to healthcare, no right to work and no right to social security benefits deprived him of the ability to have a private life and left him in a sort of "limbo"
28. There may at some stage come a time when the "limbo" argument becomes a live question, but I consider it simply unarguable that it had done so at the time of the Tribunal's decision in this case. Given the limited information provided by the Appellant and the inconsistencies in the accounts he has given, the Secretary of State was entitled to further time to make inquiries.
29. My second observation concerns the length of time for such inquiries before the "limbo" argument could conceivably come into play. I consider that, in this context, some assistance can be gained from the decisions concerning the legality of the detention of persons the Secretary of State seeks to deport while efforts are made to establish their nationality or to obtain the requisite documentation of their nationality. One of the factors which has been held to affect the period of detention which is lawful is whether the detained person has co-operated with attempts to obtain documentation: see, for example, R (MH) v SSHD [2010] EWCA Civ 1112 at [44] and [68(iii)] , per Richards LJ. Similarly, the time after which the "limbo" argument can come into play may depend on the attitude of the individual concerned to efforts to establish his or her nationality or to obtain documentation.

Lord Justice Kitchin:

30. I also agree.