Case No: C4/2011/0326 
Neutral Citation Number: [2011] EWCA Civ 1082
IN THE COURT OF APPEAL  ( CIVIL DIVISION )
ON APPEAL FROM QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
(HIS HONOUR JUDGE KAYE QC)

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Tuesday 26th July 2011

Before:

LORD JUSTICE THOMAS
LADY JUSTICE HALLETT
and
LORD JUSTICE ELIAS
- - - - - - - - - - - - - - - - - - - - -

Between:

	The Queen on the application of (ZA) ( Kuwait )	
Appellant	
	- and -		
	
Secretary of State for the Home Department 	

Respondent	

- - - - - - - - - - - - - - - - - - - - -

( DAR Transcript of 
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No:  020 7404 1400  Fax No: 020 7831 8838
Official Shorthand Writers to the Court )

- - - - - - - - - - - - - - - - - - - - -

Ms Lynne Brakaj  (instructed by Halliday Reeves Solicitors  ) appeared on behalf of the Appellant.

Mr Niazi Fetto ( instructed by the Treasury Solicitor) appeared on behalf of the Respondent.
- - - - - - - - - - - - - - - - - - - - -
Judgment

Lord Justice Elias:

1.	The appellant in this case has sought asylum.  He claims to be a Bidoon from Kuwait.  The Secretary of State accepts that if he is a Bidoon then he should be granted asylum.  However, he concluded that he was not Bidoon and could be returned to Kuwait.  On appeal the Immigration Judge agreed with that conclusion and denied him asylum.  He appealed but unsuccessfully.  He then presented new evidence to the Secretary of State.  His claim was still rejected and the Secretary of State refused to consider this to be a fresh claim conferring a new right of appeal.  He was given permission to challenge that conclusion by way of judicial review.  His case was heard before HHJ Kaye QC but was refused.  He now appeals against that decision.

The background.

2.	A Bidoon was described by the Immigration Appeal Tribunal in the case of BA and Others  [2004] UKIAT 00256 at paragraph 5 as follows: 

"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."

3.	The decision went on to note that there are approximately 120,000 Bidoons  resident in Kuwait and about twice that number living outside the country, many of whom wish to return to Kuwait but cannot do so. 

4.	Until the mid-1980s Bidoons resident in Kuwait were considered to be lawfully resident there and any claims to citizenship were considered.  Thereafter they were subject, however, to increasing discrimination.  The position now, as the Secretary of State has accepted, is that if the person is what is termed an “undocumented Bidoon” then the degree of discrimination shown against him will be sufficient to amount to persecution.  Documented Bidoons, however, fall into a different category.  They are still treated in a discriminatory way in certain respects, but the discrimination is not -- typically at least -- sufficient to constitute persecution.  It is accepted by the Secretary of State that if this applicant is a Bidoon, as he claims, then he will be an undocumented one and would be entitled to asylum.

5.	The appellant applied for asylum and was refused by the Secretary of State in June 2007 on the grounds that the Secretary of State did not consider he was a Bidoon.  He appealed to the Immigration Judge, who rejected his claim, essentially for the same reasons as had been relied on by the Secretary of State.  The appellant's case was that he had been born in Kuwait, was a Sunni Muslim and had no formal education but had worked illegally as a self-employed electrician since 1995.  He said he has a wife and four children.  He and his parents were Bidoons.  He said he had taken part in demonstrations in 2005 to seek to persuade the government to give further rights to Bidoons.  He was arrested, detained for two weeks and beaten.  The following year he criticised the state authorities at the mosque where he worshipped.  This time he was detained for four weeks and was beaten and again suffered ill-treatment.  He left Kuwait with the help of an agent after his wife had advised him in May 2007 that the police had been to his house to search for him.

6.	The judge relied upon a number of factors in concluding that, although the appellant was a resident of Kuwait, he was not an undocumented Bidoon nor indeed a national of Kuwait.  First, the appellant provided what he alleged was a green ID card.  Paradoxically, this is a document which a so-called undocumented Bidoon will possess.  It is known as an alien's registration card apparently in Kuwait and is issued by the Executive Committee for Legal Residents Affairs.  The card demonstrates on its face that the bearer is without civil rights in Kuwait. 

7.	The appellant said that he had been supplied with this when he was 25 but that it had been renewed in 2000. In his interview to the Border and Immigration Agency he said that he had received it through a third party sent by his agent.  He was challenged as to whether the photograph was in fact a photograph of him taken in 2000.  He implicitly accepted that it was not and said that the document had been altered after his departure from Kuwait.  The objective evidence was that one could only get a green card of this kind by providing a copy of a birth certificate and by proving registration in a census conducted in 1965.  In fact the claimant did not have a birth certificate and did not know whether any registration had taken place in that census.  The judge, like the Secretary of State before her, therefore concluded that she could place no weight on that document. 

8.	She also doubted his Bidoon status for a number of other inter-related reasons. First, the appellant claimed that he had received no education and had been denied access to medical care, but the objective evidence was that until the mid-1980s, as the appellant was growing up, that would not have been the position.  Second, he claimed that he had applied for citizenship in 1980 and his application had been thrown in the bin.  Again, the objective evidence suggested that Bidoon claims were being considered at that stage, although they would not necessarily be successful.Third, she was not dissuaded that a genuine undocumented Bidoon would earn as much money as the appellant apparently claimed that he had been earning. Finally, his account of the demonstration in which he had been involved was very vague.  She thought it not credible that he would have been able to speak out against the authorities following his initial alleged detention.  Accordingly, she rejected his claim for asylum.

9.	The appellant pursued his rights of appeal, but these were unsuccessful and were exhausted by 5 December 2007.  Following this failure he applied for voluntary repatriation on 20 March 2008.  He was referred to the voluntary repatriation section of the International Organisation for Migration.  His application could not be pursued because they could not get a travel document. He made his own attempts to return.  He visited the Kuwaiti Embassy on 13 October 2008, but was denied entry as he could not prove his citizenship. On 11 November 2008 he requested documentation that had been provided to the UK Border Agency in order to take these to the Embassy.  His solicitors wrote to the Embassy on a number of occasions including on 5 January 2005 when they requested a passport or travel document in order to enable him to return to Kuwait.  

10.	Meanwhile in June 2008 he had applied for support under section 4 of the Immigration and Asylum Act 1999.  He claimed that he was destitute and was taking all reasonable steps to leave the United Kingdom.  The support had been withdrawn in January 2009 on the grounds that he was not taking such reasonable steps.  The Secretary of State had adopted the position that the appellant was still claiming to be a Bidoon when that was not the case and therefore he was not properly co-operating with the Kuwaiti authorities to secure his voluntary removal from the country.  

11.	The appellant appealed to the Asylum Support Tribunal and, in a decision on 28 January 2009, the tribunal judge accepted that the appellant had only one identity document, namely the green card, and that he had no other relevant documents.  She found he had no birth certificate, marriage certificate, employment contract or anything of that kind.  The judge concluded that in her view the appellant had cooperated and taken all reasonable steps to secure his voluntary transfer back to Kuwait, but without a travel document it was impossible.  She therefore restored his entitlement to section 4 support. 
The new fresh claim
12.	A fresh claim for asylum was made on 11 May 2009.  The Secretary of State rejected it and also he was not prepared to consider the new material as constituting a fresh claim.  The question whether it does constitute a fresh claim has to be determined in accordance with Rule 353 of the Immigration Rules, which is as follows:

“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.”

13.	The legal test for determining whether paragraph 353 is satisfied is now well-established.  As Buxton LJ observed in WM (DRC ) v SSHD  [2006] EWCA Civ 1495, the Secretary of State has to consider:

"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 [2007] 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 [2011] EWCA Civ 193 this court confirmed that it is indeed the appropriate test.  

14.	The basis of the claim in this case was that events since the initial decision had cast doubt on that decision.  The failure by the applicant to secure any relevant travel documentation from the Kuwaiti authorities in response to his request, and also the findings of the Asylum Support Tribunal, cast doubt on the determination of the Immigration Judge that his claim to be a Bidoon was not credible.

15.	The Secretary of State considered the evidence in some detail.   As I have said, he refused asylum and concluded that the material did not constitute a fresh claim.  He considered it was not relevant evidence, because the appellant had sought to return to Kuwait by relying upon the same identity card which the Immigration Judge had found not to be genuine.  In his dealings with the Embassy the Secretary of State concluded that the appellant had in fact chosen to conceal his true identity and had refused to produce genuine documents which could have secured him the necessary travel document.  His problems were entirely of his own making.  In the circumstances the Secretary of State was of the view that it was not surprising that he had been unable to return to Kuwait but the evidence did not create any realistic prospect that the original analysis of the Immigration Judge would be any different even if the new material were taken into consideration.

16.	Following this decision the Secretary of State removed support again on 26 March 2010.  Again, the appellant successfully appealed that decision to the Asylum Support Tribunal.  The judge held that the only grounds on which support could be withdrawn was if the appellant was no longer taking reasonable steps to leave the United Kingdom.  The Secretary of State's explanation for withdrawing support had been that the appellant had originally sought assisted voluntary repatriation, but that had been refused when it was found that he was not a Kuwaiti national.  The tribunal judge concluded that this was not a just basis for saying that he had not taken all reasonable steps to return and the judge observed that he appeared distraught in the tribunal and said he wished to go back to Kuwait.  

17.	The appellant was granted permission to challenge by way of judicial review the Secretary of State's decision not to treat the new material as a fresh claim.  In the letter before action the appellant also drew attention to the second asylum support decision, which of course had not initially been considered by the Secretary of State.  It was, however, considered at that stage but it did not change the Secretary of State's view.  The substantive application was then heard by HHJ Kaye QC sitting as a deputy High Court judge.  He noted that it was a sad case and observed that it had the real feeling of a catch-22 situation, which he described the catch-22 as follows at paragraph 12: 

"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.”

18.	Before the judge the appellant relied upon the two decisions of the tribunal via the Asylum Support Tribunal as well as the attempts to return to Kuwait.  He contended that the decisions in particular had raised a question as to whether the Immigration Judge's conclusion that he was not a Bidoon could now be sustained.  It was submitted that a different Immigration Judge might reach a different conclusion.  The Secretary of State submitted to the judge that none of this material undermined the analysis of the Immigration Judge.  The Asylum Support Tribunal had not made an assessment of his claim to asylum and had not sought to consider whether or not he was a Bidoon.  They had reached the conclusion that he had taken all reasonable steps to seek to return to Kuwait, but that was on the assumption that it was reasonable for him to produce the ID card which he had in his possession.  It did not establish the authenticity of the card nor did it show that he did not have any other genuine documents.
19.	  The judge agreed with the Secretary of State that the findings of the Asylum Support Tribunal were focussing on a different question.  He concluded that the fresh material did not alter the fundamental premise, namely the claimant's inability to prove that he was a Bidoon.  He added this at paragraph 31: 

" ...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."

20.	The judge went on to say that even if the claimant's submission did amount to fresh material, it was not perverse for the Secretary of State to conclude that it did not give the appellant a realistic prospect of altering the Immigration Judge's decision that the document was not genuine.  So notwithstanding the judge's concern that this left the claimant in a state of limbo where he could not get entry into the United Kingdom but at the same time was not able to get back to Kuwait, the judge considered there was no error of law in the Secretary of State's approach.

The appeal.
21.	The submissions advanced to this court essentially reflect those which were argued before the judge.  Ms Brakaj, representing the appellant, submits that the Secretary of State has failed to give the anxious scrutiny in this case which it required.  The material derived from the two Asylum Support Tribunal cases in particular could cause a fresh tribunal to take a different view than had the Immigration Judge as to the credibility of the account given by the appellant.  If a new tribunal genuinely considered that the appellant was seeking to return, then that could justify an inference that he did not have genuine documents which he could produce in order to secure a travel document from the Kuwait government, because if he did wish to return then it might be assumed that he would take all the steps that he could to achieve that objective.  To that extent the credibility findings of the initial tribunal, the immigration tribunal, would be undermined.  

22.	The Secretary of State essentially repeats the arguments submitted below, namely that properly analysed there is no conflict between the asylum support decisions and the decision of the Immigration Judge that the appellant had not satisfied her that he was a Bidoon.  That conclusion had been reached for a  number of inter-related reasons, not simply because of doubts about the genuineness of the green card.  The stance adopted by the appellant was at one with the attitude he had adopted before the Immigration Judge.  He had always contended that the green card was a genuine document but that had been rejected by the Immigration Judge and he did not advance his case to be seeking to rely upon that further in his dealings with the Kuwaiti Embassy.

23.	Like the judge below, I am also unhappy about the dilemma in which the applicant finds himself. The question, however, is whether the Secretary of State is entitled to say that the new evidence is not sufficient to undermine the findings of the Immigration Judge that the appellant is not a Bidoon and was therefore not entitled to be granted asylum.  In my judgment the Secretary of State was entitled to adoptr that position.  I put some weight, as did the judge below, on the fact that, although we are almost four years on since the relevant appeals were exhausted, nonetheless there is no material at all demonstrating any contact between the appellant or anybody in Kuwait, including his family, in which he has sought some supporting evidence of whatever kind which could either assist in establishing that he is indeed a Bidoon, possibly for example that he was registered in the 1965 census, or which might alternatively provide him with a genuine document which can secure his return to Kuwait.

24.	It follows that, applying the Wednesbury test to the decision of the Secretary of State, he did not err such as to allow this court to interfere.  It is a wholly unsatisfactory state of affairs, not least because it may even be the case that even if the appellant is not a Bidoon he may not be national of Kuwait at all.  That indeed was the view of the Secretary of State and the Immigration Judge and although counsel have not been able to assist us on this it appears that it may be the situation that unless he is a national of Kuwait he will not be allowed into Kuwait in any event. 

25.	We are told that steps are now being taken by the UK Government to have discussions with the authorities in Kuwait to see if relevant information can be secured which will determine precisely what the status of this appellant is, whether or not he is Kuwaiti, and if so whether he could then be returned to that country.

26.	But, so far as this particular appeal is concerned, I am satisfied that it must fail for the reasons that I have given.

Lady Justice Hallett:
27.	I agree.

Lord Justice Thomas : 
28.	I agree. I would merely observe that this is the eighth occasion on which this matter has either been before a tribunal, single judge or court.  It has advanced virtually nowhere in the intervening period.  There must be a more efficient and cost effective way of dealing with matters.

Order: Appeal dismissed