R (Al-Anizy) v Secretary of State for the Home Department (undocumented Bidoons – Home Office policy) [2017] UKUT 00197 (IAC) — family reunion cannot be refused for want of passports that Bidoon cannot hold

Headnote: 'The Home Office family reunification policy embraces a series of flexible possibilities for proof of identity. In any case where withdrawal or a consent order is proposed judicial scrutiny and adjudication are required.'

Facts: the applicant, a Kuwaiti Bidoon recognised as a refugee in the UK (granted with his two eldest children in 2015), had fled after detention and mistreatment linked to demonstrations for Bidoon rights and a warrant for his arrest. His wife and two youngest children fled to Iraq, where they lived destitute as UNHCR-registered asylum seekers. At visa application centres in Basra (August 2016) and Baghdad (December 2016) staff 'demanded the production of passports as a pre-requisite to considering the applications', despite a Red Cross letter explaining that, as Kuwaiti Bidoon, the family did not possess identity or travel documents and citing the Home Office's July 2016 Country Information and Guidance on Kuwaiti Bidoons. UKVI later suggested that the applicants might have been refused for not showing that they normally resided in Iraq.

The policy: the Family Reunion Guidance (July 2016) lists acceptable identity documents as including passports, national identity cards and 'other official documents, including, for example, school ID cards or letters, UNHCR attestations or identity cards'; where originals are unavailable 'the onus will be on the applicant to provide a reasonable alternative and explanation of their absence'; caseworkers 'must be mindful of the difficulties that people may face in providing documentary evidence'; country guidance 'will give some insight into challenges that they may face in acquiring documents'; and DNA evidence is specifically contemplated.

Decision: the Secretary of State was 'specifically enjoined to consider the applications and, in doing so, to examine the proof of identity and family relationships provided, together with the explanations given for the absence of documents such as a passport or a national identity card'; her officials' approach 'conspicuously fails to give effect to this policy requirement', and no justification was offered. The failure also infringed all six family members' Article 8 rights and section 55 (for the children in the UK, and in substance for those abroad through the policy). 'Figuratively the Secretary of State does not have a leg upon which to stand either factually or legally.' The tribunal would have quashed the refusals and ordered determination within 21 days, but approved an eleventh-hour consent order under which the applications would be accepted at the Basra VAC and decided as soon as possible, with costs to the applicant.

USE IN A REPORT: authority, in a Kuwaiti Bidoon context, that a decision-maker applying the family reunion policy may not treat the absence of a passport or national identity card as a bar to consideration where the applicant is stateless and offers alternative evidence and an explanation.

For immigration practitioners: a reported decision of the Upper Tribunal's President with direct practical value in Bidoon family-reunion cases, where passports and national identity cards are typically unobtainable. Its reasoning rests on the Lumba principle — a published policy must be followed unless there is good reason not to — together with Article 8 and section 55; the policy text it quotes (alternative documents, UNHCR attestations, DNA evidence, reliance on country guidance) remains the practical template for such applications. Current versions of the Home Office's family reunion guidance should be checked, but the principle that the absence of documents a stateless person cannot obtain is no ground for refusing to consider an application is of lasting relevance. The decision also underlines that consent orders in judicial review require the tribunal's own approval.