BA and others (Bedoon–statelessness–risk of persecution) Kuwait CG  UKIAT 00256
Date of hearing: 11 June 2003
Date Determination notified: 15 September 2004
|BA and others||APPELLANT|
|Secretary of State for the Home Department||RESPONDENT|
"In the Human Rights Watch, Promises Betrayed: Denial of Rights of Bidun, Women and Freedom of Expression (October 2000) at 9 it is stated that there are approximately 120,000 Bedoons resident in Kuwait. An estimated 240,000 are living outside the country, many of whom wish to return to Kuwait but have not been permitted to do so by the government. Until the mid-1980s the Kuwaiti government treated Bedoon as lawful residents of Kuwait whose claims to citizenship were being considered, a status that distinguished them not only from other foreign residents but also from other groups of stateless residents, such as Palestinians from Gaza. Bedoon made up the vast majority of the rank and file of all branches of the police and military and as already noted, were eligible for temporary passports under Art 17 of the Passport Law 11/1962. Intermarriage among Bedoon and Kuwaiti citizens was and is common, and because of the vagaries of the implementation of the Nationality Law it is not unusual for a single family to have members with different citizenship statuses: original citizenship, citizenship by naturalisation, and Bedoon. However, in 1985 the government began applying a series of regulations stripping the Bedoon of almost all their previous rights and benefits. It also fired government employees not employed by the army and police and who could not produce valid passports, whether issued by Kuwait or another country and instructed private employers to do the same. Restrictions increased in the aftermath of the 1990-1991 Iraqi occupation. Bedoon government employees were dismissed en masse and only a small proportion were later rehired. Beginning in 1993 Bedoon were also required to pay fees to use healthcare centres, although those services remained free for Kuwaiti citizens. More recently, in May 2000 the Kuwaiti National Assembly passed amendments to the Nationality Law which were intended to be the final statement of which Bedoon would be eligible for naturalisation and in June 2000 the Ministry of Interior ended a nine month programme during which Bedoon who signed affidavits admitting to a foreign nationality and renouncing claims to Kuwait nationality could apply for a five year residency permit and other benefits".
The first appellant
The second appellant
"In the absence of any employment, and on the basis of the background documents, I have to accept as being reasonably likely that he would be unable to work; that he would have great difficulty in finding accommodation for himself and his family, and would certainly not be allowed to own property; that his children are likely to have problems with regard to education; and that he and his family would be denied any further right to travel, having abused the right previously given to him".
"[The Kuwaiti Bedoon`s] continued exclusion from nationality can only be understood in the light of the power struggle in a system which was largely based on sectarianism and tribalism within newly emerging emirates striving to assert their legitimacy and authority. The majority of the Bedoon are in fact an extended branch of tribes across the borders between Iraq, Iran, Syria and Saudi Arabia and are largely of the Muslim Shi`ite faith".
(a) A Kuwaiti passport is issued to those who are considered Kuwaiti citizens in accordance with nationality law at the time;
(b) If necessary, the Minister of Interior may grant passports to non-Kuwaiti civil servants working for government agencies if they are carrying out official duties abroad and only for the duration of the assigned mission".
(i) whether these appellants are stateless (the nationality issue);
(ii) whether either would be accepted by the Kuwait authorities as someone entitled to return to Kuwait (the returnability issue);
(iii) whether Bedoon as a class are per se at real risk of persecution (the persecution issue);
(iv) whether the particular circumstances of either appellant would place him at a real risk of persecution;
(v) whether Bedoon can demonstrate a Refugee Convention ground (race, religion, nationality, political opinion or membership of a particular social group).
The nationality/statelessness issue
The returnability issue
"…no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation…If, for whatever reasons, there is no risk of persecution in the country of origin, or if the risk is but conjecture or surmise, the fear of being persecuted is not well-founded. It follows that if the country of origin refuses to admit or accept the return of the refugee claimant, the fear of being persecuted is similarly not well-founded in that country ".
Our decision on returnability
The "lawful return" approach
Whether Bedoon as a class are per se at real risk of persecution
"They live under the most appalling conditions, denied the right to travel, free medical care, to register marriages and in some cases to have a driving license".
The position of documented Bedoon
The possible relevance of the particular circumstances of each appellant
The particular social group (PSG) issue
Summary of conclusions
(i) The appellants in this case are stateless persons. Given the events of 2000, it would be rare indeed for a Bedoon who did not obtain nationality before leaving Kuwait to be considered as a national of that country by reference to Bradshaw principles.
(ii) It is not reasonably likely that the Kuwaiti authorities will accept either appellant as eligible for or entitled to re-admission: in practice they are not currently or foreseably returnable;
(iii) In view of the widespread and systematic nature of the discriminatory measures they experience, the majority of (but not all) Bedoon in Kuwait face a real risk of persecution in Kuwait;
(iv) The individual circumstances of the appellants neither significantly add to nor detract from the situation they would face in common with other undocumented Bedoon.
(v) Since the Bedoon have a tribal identity and are not simply a collection of (mainly) stateless persons, they face persecution by reason of a Refugee Convention ground of race. They can also be seen to form a particular social group.
DR H H STOREY