Undocumented Kuwaiti Bidoon and the Stateless Provisions

The immigration rules were amended in April 2013 to include provisions for stateless persons to apply for discretionary leave to remain in the UK.

Our client, A, is of Bidoon origin from Kuwait. A entered the UK illegally in 2008 and applied for asylum. His asylum claim was refused, as were his subsequent appeals.

A had argued that he was an undocumented Bidoon but yet he did provide documents from Kuwait in his initial asylum application, namely his birth certificate and an ID card, which expired in 2003.  The Home Office refused his asylum application on the grounds that mere possession of these documents meant A was a documented Bidoon and therefore not at real risk of persecution or breach of his protected human rights if returned to Kuwait.

New case law

A recent case from the Upper Tribunal, NM (documented/undocumented Bidoon: risk) Kuwait CG [2013], considered previous country guidance in respect of Kuwaiti Bidoon, and maintained the distinction between those who are documented and not at real risk of persecution / serious harm and those who are undocumented and are at real risk of persecution / serious harm.

The most important part of this decision from the Upper Tribunal is that it decided that the relevant crucial document, which confers benefits on Bidoon and therefore makes them documented, is the ‘security card’, rather than the ‘civil identification documents’ referred to in the previous country guidance case, HE [2006] UKAIT 00051.

The Tribunal in NM identifies three distinct categories of people in Kuwait:

1. Permanent residents with civil ID cards, who are citizens and are entitled to all the benefits that flow from that, including free education and free healthcare.
2. Bidoon who hold security cards (also known as ‘green cards’).  These are people who registered, presumably with the Bidoon committee, between 1996 and 2000.  These people gain some benefits as a result of their ‘security cards’, but not on the same level as those conferred to permanent residents / citizens of Kuwait. For example, rather than free healthcare they can purchase health insurance through the government system which charges a nominal fee, and must pay small charges for visits to government clinics and hospital visits.
3. Unregistered Bidoon, i.e. those who are not able to renew their security cards or people who have never obtained security cards.  This group of people are denied all the benefits that are available to those with security cards, as set out above  They cannot obtain passports of any kind, they are not provided with any educational funding and they are denied access to government clinics and hospitals altogether.

What is a security card?

The Tribunal defined what it meant by ‘security card’ as follows:

‘The document is not proof of ID, and does not make it clear on its face to what the holder is entitled. However,… Bidoon who hold security cards are theoretically issued travel documents in the form of “temporary passports”, though in practice this is only for the purpose of travel for education, medical treatment or religious pilgrimage and typically remain valid only for the trip cited in the individual’s application.’

The court concluded that all undocumented Bidoon – i.e. all those Bidoon who do not possess the relevant ‘security card’ – face a real risk of persecution and breach of their human rights.

Documented or undocumented?

A instructed us that the ID card which he possessed from Kuwait did not confer him with any rights or benefits when he was living there. He did not have access to free healthcare, or education, nor did he have the right to work in Kuwait. His ID card certainly did not function as a ‘temporary passport’ enabling him to travel out of the country for any of the reasons mentioned above.

We have therefore been able to argue to the Home Office that A is an undocumented Bidoon because his ID card is not the relevant ‘security card’ and so he falls under the new stateless provisions within the immigration rules, and qualifies for leave to remain in the UK.

The stateless provisions

Stateless persons will qualify for leave to remain in the UK if they meet the definition in paragraph 401 of the immigration rules, do not fail to be excluded under paragraph 402 and fulfil the requirements of paragraph 403.

This essentially means that a person must not be considered as a national by any State under the operation of its law, must be in the UK, and must not be excluded from being recognised as stateless because (a) they have an alternative route to protection either through the UN or through being recognised by the country of their former habitual residence as having rights and obligations akin to the country’s citizens or (b) because of their behaviour.

Furthermore, a person will only be considered stateless if they are not admissible to their country of former habitual residence or any other country, as per paragraph 403 of the immigration rules.

What happens next?

We expect a decision from the Home Office within the next six months.  If the application is granted then A will be given leave to remain in the UK for a maximum of thirty months. Moreover, as a recognised stateless person, he would be able to apply for indefinite leave and citizenship after five years’ lawful residence.

It’s difficult to say whether the Home Office will accept our argument because the case-law is relatively new but we are hopeful for A’s sake that leave will be granted to him.

Mary-Rachel McCabe

Paralegal

November 2013