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Caselaw

Proof of identity in family reunification cases

Posted by Soma Barzinji on June 19, 2017

R (on the application of Al-Anizy) v Secretary of State for the Home Department (undocumented Bidoons – Home Office policy) [2017] UKUT 197 (IAC)

This is a Judicial Review, heard on 11/05/17 by the Upper Tribunal (Immigration and Asylum Chamber) (UT) before the Honourable Mr Justice McCloskey, President of the UT.

Brief Facts and Chronology

The Applicant is a stateless Bidoon from Kuwait. He entered the UK on 31/10/14 and claimed asylum on the basis of persecution for undertaking political activities in support of the equal rights of Bidoons within Kuwait.  His two eldest children joined the Appellant in the UK on 09/11/14 and all three were granted refugee status and leave to remain in the UK until 21/05/20.

As a result of adverse attention from the Kuwaiti authorities the Applicant’s remaining family members, his wife and two younger children, fled to Iraq where they lived in destitute and over-crowded conditions as registered UNHCR asylum applicants.

With the support of the Red Cross family reunion applications were submitted by the Applicant for an appointment at the Visa Application Centre (VAC) in Basra, Iraq on 28/08/16.The VAC staff demanded production of passports as a pre-requisite to consider the applications.

On 13/08/16 the Red Cross contacted the VAC Entry Clearance Manager without response resulting in the commencement of a formal complaints procedure.

Again with the assistance of the Red Cross the Applicant completed new applications for family reunion with an appointment for VAC Baghdad on 06/12/16. A letter and other documentary evidence from the Red Cross accompanied the applications and set out published Home Office Country Information dated July 2016 which acknowledged that Kuwait Bidoons did not possessed identity/travel documents. Again VAC refused to consider the applications without the production of passports.

The Home Office Policy on Family Reunion (July 2016) also stated as follows:

” Applicants must submit all original documents that they are able to provide to establish their identity and to support their claim to be related to the sponsor. This could be

  •  a passport
  • national identity cards
  •  other official documents, including, for example, school ID cards or letters, UNHCR attestations or identity cards

Where original documents are not available to submit with an application, such as a passport or marriage certificate, because they have been lost or they could not be issued due to there being no authority to issue in the country the sponsor and their family have left, the onus will be on the applicant to provide a reasonable alternative and explanation of their absence, including any attempts to obtain them, and to satisfactorily demonstrate they are related as claimed to their sponsor. The Evidence section of this guidance provides further information.”

The Applicant travelled to Jordan at the suggestion of a VAC official in order to engage with the British Embassy but promises of further enquiries came to nothing and a pre-action protocol letter to the Home office dated 18/02/17 went unanswered.

Permission to apply for Judicial Review was granted by order and with expedition on 06/03/17. The UT found all grounds as arguable. Specifically:

  1. the failure of the Secretary of State to apply her own published policy
  2. irrationality of the decision to refuse to consider the family reunion applications
  • breach of all of the family member’s rights under Article 8 ECHR
  1. breach of the duties owed under section 55 of the 2009 Act in respect of the Applicant’s children resident in the UK.

Expedition of the application was permitted for the following reasons:

  1. The dire and severely overcrowded conditions in which the Applicant’s family were living
  2. The Applicant’s daughter in the UK was severely affected, distressed, struggling in school and had to have regular mental health support from her GP and Social Services due to separation from her mother.
  3. Prolonged separation was had an ongoing, damaging impact on all parties especially the four children, all aged between 3 and 10 years.

Conclusion

Tribunal was requested by the parties to approve a draft Consent Order, the material portions of which were in the following terms:

” UPON THE RESPONDENT agreeing to accept for consideration the Applicant’s wife and children’s family reunion applications, to be submitted in person at the Visa Application Centre in Basra, Iraq;

AND UPON THE RESPONDENT agreeing to use her best endeavours to issue a decision as soon as possible, and no later than the current published visa processing guidelines, absent special circumstances;

BY CONSENT, it is ordered that:-

1 . The hearing listed for 26 April 2016 be vacated;

2. The Applicant do have leave to withdraw the above-numbered claim for judicial review. “

The UT stated clearly that duty of adjudicating on the issues of withdrawal and the terms of any withdrawal of Judicial Review were for the UT alone and therefore the draft Consent Order was not binding on it.  The UT did, however, give approved the Order conveying “ a clear message to the Secretary of State” of the UT’s powers to exercise discretion in the matter of remedy and costs in the event that the family had cause to reissue further proceedings