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You are here: BAILII >> Databases >> United Kingdom Asylum and Immigration Tribunal >> KD (Bedoon, Destroyed documents) Kuwait [2008] UKAIT 00086 (31 October 2008) URL: http://www.bailii.org/uk/cases/UKIAT/2008/00086.html Cite as: [2008] UKAIT 00086, [2008] UKAIT 86 |
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KD (Bedoon - Destroyed documents) Kuwait [2008] UKAIT 00086
Date of hearing: 14 October 2008
Date Determination notified: 31 October 2008
KD |
APPELLANT |
and |
|
Secretary of State for the Home Department | RESPONDENT |
A Bedoon who destroys his documents does not by that reason alone become an undocumented Bedoon.
"45. That is not however at the end of the matter. For whatever reason it is a fact that the Appellant Article 17 passport has been destroyed. Mr Dunne argues that as the original passport was valid until 13 May 2010 it would be open to the Appellant to apply to the Kuwait authorities for a replacement passport and accordingly the Appellant could return to Kuwait as a documented Bedoon. Mr Dunne distinguishes the case of the second Appellant in the case of BA & Ors [2004] UKIAT 00256 on the basis that by the time of the reconsideration of the appeal in that case the Appellant's Article 17 passport had expired and it was found that it was unlikely that a new passport would be issued. Mr Dunne argues that in the case of the Appellant before me it would not be a newly issued passport that was being sought but simply a replacement passport during the currency of a passport that had been lost or destroyed.
46. Mr Appiah argues that given the attitude of the Kuwait authorities to Bedoon and in particular the general reluctance of the Kuwait authorities to have Bedoons resident within Kuwait it is unlikely that the Kuwait authorities would issue even a replacement passport to enable the Appellant to return to Kuwait.
47. Neither party has direct evidence from the Kuwait authorities of whether the Kuwait authorities would be prepared (even as a general principle) to issue outside Kuwait a replacement for an Article 17 passport that had been lost or destroyed during its currency.
48. The case of the second Appellant in the case of BA indicates how a documented Bedoon can lose that status by later actions and events (see paragraph 22 above).
49. In my view the objective evidence (see in particular the comments of the Tribunal in HE (Bedoon – statelessness – risk of persecution) Kuwait CG [2006] UKAIT 00051 at paragraphs 28 – 35) indicates a general unwillingness of the Kuwait authorities to tolerate Bedoons within Kuwait. In my view it follows that there is a real risk that the Kuwait authorities are likely to be obstructive in the issue of even a replacement Article 17 passport. Accordingly I come to the conclusion that although the Appellant has destroyed his own Article 17 passport (see paragraph 44 above) given the destruction of that document and the risk that it would not be replaced the Appellant is now to be regarded as an undocumented Bedoon and accordingly would be at real risk of persecution if he were to be returned to Kuwait."
"Ground 1: Failing to take into account material matters
1. The Immigration Judge has accepted that the appellant's account of having been an undocumented Bedoon who has previously suffered at the hands of the Kuwaiti authorities was not genuine (paragraph 44). He finds that at the time of his departure, the appellant was in fact a documented Bedoon, and that he was personally in possession of an Article 17 passport validly issue to him, which he subsequently destroyed (paragraph 44).
2. The Immigration Judge then goes on to consider whether the appellant would be able to obtain a replacement passport, concluding that there was a real risk that the passport would not be replaced by the Kuwaiti authorities (paragraph 49). In coming to this conclusion it is submitted that the Immigration Judge has materially erred in law in failing to following the guidance in BA and in failing to take into account material matters.
3. The Immigration Judge notes at paragraph 47 that neither party had direct evidence from the Kuwaiti authorities as to whether they would be prepared to issue a replacement Article 17 passport outside Kuwait, although he relies upon BA as supporting the proposition that a documented Bedoon can lose that status. It is submitted that the circumstances of the second appellant in BA are significantly different to the present appellant, the Tribunal concluding that the appellant 'having declined to register and fled the country … was clearly someone who was no longer a documented Bedoon' (paragraph 54). It would appear that the conclusion was reached, not because that appellant's Article 17 passport had expired, but because he had refused to register and had fled.
4. Further, whilst the Tribunal accepted that where an Article 17 passport had expired, it was unlikely to be replaced outside Kuwait, they made no such finding that a replacement passport for one lost of destroyed during its period of validity would not be replaced. At paragraph 20 of BA, the Tribunal recorded the expert's evidence that 'in certain circumstances the Kuwaiti authorities through their consulates abroad would issue emergency documents to enable persons they accepted as citizens or resident non-citizens to travel back urgently for a death in the family or matters of this kind, e.g. when individuals have list documents or had them stolen' (emphasis added).
5. Further, the comments at paragraph 22 of BA were made on the basis that the appellant had not sought to renew his passport and would be unlikely to have it renewed if he sought to renew it now (i.e. 3 years after it had expired).
6. The Tribunal also commented at paragraph 39 that whilst there was evidence of Article 17 passport being issued to some Bedoon, 'there is no evidence to indicate that they are issued to Bedoon outside Kuwait who have not been issued with one before leaving". (emphasis added).
7. Finally, at paragraph 78, the Tribunal note that in relation to an Article 17 passport holders the authorities 'in practice do not, allow the holder re-entry once that passport expires" (emphasis added).
8. It is therefore submitted that had the Immigration Judge had regard to these passages in BA, he would have come to a different conclusion on whether it was still likely that the appellant would be able to obtain a replacement for his still valid Article 17 passport and therefore would have come to a different conclusion on whether the appellant would face persecution upon return."
"Moreover, we have found that at present neither [appellant] is reasonably likely to become a documented Bedoon (principally because Kuwait refuses to re-admit Bedoon who have left Kuwait – except for those who have current Art 17 passports)." [my italics]
"he had not sought to renew it and he did not consider that if this appellant now sought to renew it, the authorities would do so. He would no longer qualify."
Signed Date 16 October 2008
Senior Immigration Judge Warr