British
and Irish Legal Information Institute
Freely Available British and Irish Public Legal Information
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> APPEAL BY HUSSAIN MUBARAK AL-ENEZI AND ANOTHER AGAINST THE SECRETARY OF STATE FOR THE HOME DEPARTMENT [2020] ScotCS CSIH_54 (21 August 2020)
URL: http://www.bailii.org/scot/cases/ScotCS/2020/2020_CSIH_54.html
Cite as: 2020 GWD 29-383, [2020] ScotCS CSIH_54, [2020] CSIH 54
[New search] [Printable PDF version] [Help]
Page 1 ⇓
EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
[2020] CSIH 54
P835/19
Lord Malcolm
Lord Woolman
Lord Pentland
OPINION OF THE COURT
delivered by LORD PENTLAND
in the Appeal
by
HUSSAIN MUBARAK AL-ENEZI and ANOTHER
Petitioners and Appellants
against
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Petitioners and Appellants: Winter; Drummond Miller LLP (for Latta & Co, Glasgow)
Respondent: Maciver; Office of the Advocate General
21 August 2020
[1] In this appeal under section 27D(2) of the Court of Session Act 1988, the petitioners
(“the appellants”) challenge the decision of the Lord Ordinary to refuse to grant permission
for their petition for judicial review to proceed. The appellants, who are brothers, claim to
be undocumented Bidoons from Kuwait and to be entitled to asylum and to international
protection on the basis of that particular status. The Home Office does not dispute that
undocumented Bidoons are, in principle, entitled to such protection, but it does not accept
Page 2 ⇓
2
that the appellants genuinely are members of the stateless Arab minority group referred to
as Bidoons.
[2] A significant feature of the present case is that it has been before the First-tier
Tribunal (FtT) on two occasions for consideration of the appellants’ claims. After the first of
those hearings the appellants successfully appealed to the Upper Tribunal (UT), which
remitted the case to the FtT, whilst preserving certain negative credibility findings against
the appellants. They related to one aspect of their claim, namely that they had been involved
in an illegal demonstration in Kuwait and thereafter had been unlawfully detained and
tortured by the Kuwaiti authorities. The second aspect of the appellants’ claim was based
simply on their contention that they held the status of undocumented Bidoons. It was in
relation to that part of the claim that the case was remitted to the FtT to be reheard.
[3] The Lord Ordinary held that the petition for judicial review had no real prospect of
success and that, in any event, there was no compelling reason why the case should be
allowed to proceed. In the light of the recent decision of the Inner House in PA v Secretary of
State for the Home Department [2020] CSIH 34, it is for this court to decide for itself whether
there is a real prospect of success, while affording the Opinion of the Lord Ordinary due
respect. The issue is one that depends to a significant degree on impression, informed by
experience (PA para [33]).
[4] In support of the appeal to this court against the Lord Ordinary’s ruling, Mr Winter
focused his oral submissions on the treatment by the second FtT judge in his decision of the
evidence of a witness led in support of the appellants’ contentions that they were
undocumented Bidoons. Counsel contended that the UT had erred in law by failing to give
adequate reasons for its decision that the FtT judge on the second occasion had properly
weighed all the evidence in the case, including the evidence of that particular witness.
Page 3 ⇓
3
[5] To consider this submission it is necessary to go back to look at what happened at the
second FtT hearing. The witness in question, Mohammed Assi Al-Enezi, provided two
written statements and gave oral testimony, which was subject to cross examination. The
FtT judge summarised the evidence of this witness at paragraph 9 of his decision. He
recorded that the witness claimed to know the appellants well. They were all from the same
neighbourhood in Kuwait. The witness claimed to be in a position because of his familiarity
with the appellants to confirm that they truly were undocumented Bidoons. He spoke also
to having attended the demonstration with the appellants in Kuwait. It is important to note
that the witness had previously given evidence at the first FtT.
[6] At paragraph 17 of his decision the second FtT judge said the following:
“The starting point for my consideration must be the decision of First-tier Tribunal
judge Gillespie dated 9 October 2017. Said judge heard the evidence of the
Appellant’s (sic) and from Mohammed Assi Al-Enezi. He also had two unsigned
statements before him. Judge Gillespie concluded ‘having considered the totality of
the evidence I am not persuaded that they can be trusted as witnesses to the core
claim namely, that they are undocumented Bidoons who fled Kuwait as a direct
result of their involvement in a demonstration 18 February 2014’. Although said
remarks are directed against the Appellants it obviously has implications for the
credibility of Mohammed Assi Al-Enezi notwithstanding that he had been found
credible by an Immigration Judge in a different context. Upper Tribunal
Judge Macleman by way of a decision of 15 October 2018 found the following:
‘The decision of the First-tier Tribunal is set aside. The case is remitted to the First-
tier Tribunal. The adverse findings of Judge Gillespie regarding the Appellants’ part
in a demonstration and subsequent ill-treatment and experiences, stand, subject to
the usual “Devaseelan” principles. Nothing adverse stands as to whether the
Appellants are undocumented Bidoons’.”
[7] The reference in this passage to the ‘Devaseelan’ principles is to the case of
that the findings of the first FtT are always to be taken as the starting point by the second
FtT. They are an authoritative assessment of the applicant’s status at the time they were
made. However, facts arising since the first decision or facts which the first FtT did not take
Page 4 ⇓
4
into account can legitimately be considered by the second FtT. We did not understand
Mr Winter to submit that these principles were of any direct relevance for the purposes of
his argument.
[8] Mr Winter submitted that it was not clear why the second FtT judge considered there
to have been “implications” for the evidence of Mohammed Assi Al-Enezi arising from
Judge Gillespie’s findings. The second FtT judge failed, according to Mr Winter, to
recognise that the first FtT judge had not addressed the question of the appellants’ status as
undocumented Bidoons. That was the very error which the UT had identified in deciding to
uphold the appeal to a limited extent and remit the case to the FtT for a re-hearing.
Mr Winter further submitted that even if it was correct to read the second FtT judge’s
decision as holding that he had rejected the evidence of Mohammed Assi Al-Enezi, the judge
had failed to explain, to an adequate and sufficient extent, why he had done so. Moreover,
the adverse credibility findings made against the appellants had been allowed to sway the
assessment of the evidence of the witness to a degree that was unfair and unjustified. These
errors in turn rendered erroneous the reasoning of the UT and the manner in which it
expressed its refusal of leave to appeal.
[9] On behalf of the Secretary of State for the Home Department, Mr Maciver
acknowledged that the second FtT judge had made no express finding about the evidence of
Mohammed Assi Al-Enezi in so far as he supported the appellants’ claims to be
undocumented Bidoons, but it was implicit from his decision, read as a whole, that he had
found the witness not to be credible and reliable on this aspect.
[10] The Lord Ordinary considered the UT’s treatment of this issue to be, as she put it,
“reasonably clear” from the following passage in its decision refusing leave to appeal from
the second FtT:
Page 5 ⇓
5
“The grounds appear to misunderstand that negative credibility findings as to the
appellants’ attendance at a demonstration and their claim to have been mistreated as
a result were preserved. The judge was entitled to take that into account, weighing
the evidence as a whole, as it is clear was done, in assessing the overall credibility of
the claim to be undocumented Bidoon.”
[11] In our opinion, the submissions advanced on behalf of the appellants must be
rejected. We reach this conclusion essentially for the reason that the Lord Ordinary gave,
namely that the UT was correct to hold that the second FtT judge had properly evaluated the
totality of the evidence before him.
[12] In our view, the second FtT judge correctly understood that the previous negative
credibility findings against Mohammed Assi Al-Enezi had to be carried forward to the
second FtT. He made this clear in paragraph 17 of his decision. The second FtT judge must
be taken to have rejected the evidence of Mohammed Assi Al-Enezi; although there is no
express finding to that effect, it is implicit in his overall conclusion on the case. We consider
that the judge was entitled to disbelieve Mohammed Assi Al-Enezi’s evidence concerning
the appellants’ alleged status as undocumented Bidoons in Kuwait. Whether to believe or to
disbelieve him was a question of fact for the second FtT judge to make up his own mind
about, having regard to all the evidence before him.
[13] In our opinion, the passage we have quoted from paragraph 17 of the second FtT
judge’s decision shows that he considered the credibility of Mohammed Assi Al-Enezi in the
light of the other evidence in the case, including the evidence given by the appellants
themselves. We note in this connection that the second FtT judge gave cogent reasons for
finding the appellants’ claims to be undocumented Bidoons to be incredible: they knew
little about the recent history of the Bidoons in Kuwait; their evidence about the
demonstration in 2014 was implausible; and there were inconsistencies in their accounts
about how they came to leave Kuwait and in regard to conditions at the airport.
Page 6 ⇓
6
[14] Having recognised that the first FtT judge had rejected the appellants’ accounts, it
was reasonable for the second FtT judge to take the view that this finding had implications
for the evidence of Mohammed Assi Al-Enezi. The witness had spoken at both tribunal
hearings to the same matters as the appellants, including their alleged attendance at the
demonstration. The second FtT judge did not go so far as to say that the evidence of the
witness fell automatically to be rejected because of any of the previous findings in the case
or because of his assessment of the appellants’ evidence. In our view, the second FtT judge
correctly applied the Devaseelan principles by taking the findings of the first FtT judge as his
starting point, including in respect of the evidence of Mohammed Assi Al-Enezi. Inevitably,
the previous findings had negative implications for the credibility of the witness at the stage
of the second FtT.
[15] Reading the decision of the second FtT judge fairly and as a whole, we can find no
fault with his approach. In particular, we can identify no error of law in his reasoning or
conclusions on what were quintessentially issues of fact.
[16] Having reached that view about the approach of the second FtT judge, it follows that
there was no error of law on the part of the UT in refusing leave to appeal and that its
reasons were adequately expressed in the passage we have cited above.
[17] We conclude that the appellants do not have a real prospect of success on the point
which formed the focus of Mr Winter’s arguments before us.
[18] As to the other grounds of challenge advanced in the petition, we find ourselves in
complete agreement with the Lord Ordinary that none of them has a real prospect of
success.
Page 7 ⇓
7
[19] Having reached these conclusions, we need not go on to consider whether there is
any compelling reason to allow the petition to proceed. We agree with the Lord Ordinary,
for the reasons she gave, that there is no such reason.
[20] We shall adhere to the interlocutor of the Lord Ordinary and refuse the appeal. We
shall reserve all questions as to expenses.