Where do I belong?

23 March 2011 by Isabel McArdle

AS v Secretary of State for the Home Department [2011] EWHC 564 (Admin) – Read Judgment

In a strange case, reminiscent of the film The Terminal in which Tom Hanks plays a person unable to leave an airport because he is temporarily stateless, an Applicant lost a judicial review application despite being unable to enter the UK lawfully and unable to acquire travel documents to return to Kuwait.

This was an application for judicial review of the decision by the Secretary of State to refuse to treat further representations by a failed asylum seeker as a fresh claim. The Applicant claimed to be a Bedoon, a member of an ethnic group mostly living around the borders of Iran, Iraq, Syria, Saudi Arabia and Kuwait. The Kuwaiti government is not permitting Bedoon outside Kuwait to return there, and since the 1980s the country has taken away from the Bedoon a great number of rights and benefits. It was accepted by both parties that in Kuwait, the Bedoon are at risk of persecution.

A Bedoon?

The Applicant arrived in the UK in 2007 and claimed asylum, on the basis that he was a Bedoon and would as a result not be accepted back in Kuwait. The immigration judge dismissed his claim that he was a Bedoon and found that he was a resident of Kuwait. He rejected the evidence of the Applicant on the basis that the only documentary evidence he had to show he was a Bedoon was an identity card which was found to be fake. He had no birth certificate and did not know if his family participated in a1965 census (which meant it was unlikely he would have a genuine ID card) and the card was inexplicably in pristine condition. Also, he was unable to explain elements of his family history which a genuine Bedoon would be expected to know.

As a result of the finding that he is not a Bedoon, he was also found not to be at risk of persecution if he returned to Kuwait. The Applicant appealed but was unsuccessful.

Catch 22

Steps were taken by the Applicant and others on his behalf to gain assistance and travel documents from the Kuwaiti Embassy. The Kuwaiti Embassy would not assist as the Applicant could not show that he was a Kuwaiti national.

This left him stuck in a Catch-22 style situation, in which he was not recognised as a Bedoon and therefore could not be granted asylum, but could not show that he was a Kuwaiti and obtain travel documents.

The new claim for asylum

He then made a second claim for asylum, which was rejected on the basis that it did not amount to a fresh claim within the meaning of the Immigration Rules. The Applicant then sought judicial review of this rejection of his claim as a fresh claim. The basis of his argument was that the Secretary of State had failed to take into account the fact that the Applicant was taking all reasonable steps to leave the UK (a finding made by two Asylum Support Tribunals) and the consequences of the decision to refuse him asylum at the earlier stage. However, he continued to claim to be a Bedoon. The only evidence in support of the claim was the ID card.

The test to be applied to determine if the claim is a fresh claim is if its substance:

i) has not already been considered; and

ii) taken together with the previously considered material, creates a realistic prospect of success, notwithstanding its rejection.

Judicial review

As the law currently stands, based on a number of Court of Appeal decisions, the decision of the Secretary of State on the question of whether the claim is a fresh one can only be challenged on “Wednesbury” grounds: the decision must be unreasonable or irrational for the Applicant to succeed. There is also a requirement for the Secretary of State to answer these questions in accordance with the requirement of “anxious scrutiny”. This is a test requiring a heightened degree of scrutiny of decisions where fundamental or human rights are at stake.

The Applicant argued that, given the evidence that he was taking all reasonable steps to leave the UK, the requisite degree of anxious scrutiny could not be being applied, so the decision was unreasonable, and the Appellant had a reasonable prospect of success before an immigration judge.

His Honour Judge Kaye QC noted that the Appellant was “at a complete impasse” being “stateless and in limbo”. He could not, through legitimate means, enter the UK or return to Kuwait.  However, this situation did not mean that the Secretary of State’s decision to find that the claim was not a new one, was irrational or unreasonable.

Careful regard had been paid to the more recent evidence and the Applicant’s central claim, that he is a Bedoon, remained the same. The evidence was not significantly different. The Application was therefore dismissed.

The practical problem

His Honour Judge Kaye QC was clearly acutely aware that his findings did not help the Applicant in resolving the peculiar and difficult situation he finds himself in. Having based his original claim on his Bedoon status, he will have great difficulty in securing assistance from the Kuwaiti authorities because they will not recognise the Bedoon as having residence rights in Kuwait. However, as his identity card, the only evidence supporting his claim to be a Bedoon, has been found not to be genuine, he cannot claim asylum in the UK either. Without travel documents, he is faced with significant difficulties if he tries to travel legitimately to another state to claim asylum there.

The Applicant may be open to some criticism, having based his asylum claims on what has been found to be a non-genuine document, but the case highlights the wider problem of stateless persons, and the difficulties they face in attempting to travel, gain legitimate entry into states and ultimately acquire residency rights and nationality. Without the ability to acquire identification and travel documents, people can be stranded in legally ambiguous situations, unable to conduct an ordinary life in one state, but unable to leave to enter a different state.

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