economic, social and cultural rights protected by the International Covenants on Civil and Political Rights and Economic, Social and Cultural Rights.258 Put in a historical context of marginalization and forced displacement, these measures constitute persecution. 259 However, documented Bidoons are entitled to a range of benefits, and although not treated equally in terms of entitlements to Kuwaiti citizens, this discriminatory treatment, and the fact that they are denied citizenship, has not been found to amount to persecution.260 The Tribunal further acknowledged that ‘stateless Kuwaiti Bidoons’ constitute a particular social group as ‘a collection of (mainly) stateless persons’ but found ‘race’ to be a more relevant option on the ground that ‘the Bedoon have an extended tribal identity and so cannot be reduced to persons defined simply by their statelessness’. 261 This interpretation must be welcome for it emphasizes the distinct identity of Kuwaiti Bidoons and the nature of their struggle inside Kuwait in clearer and stronger terms than the acceptance of their membership to the wide category of stateless people.262 The position of undocumented Bidoons must be sharply contrasted with that of stateless Palestinians, to whom the UKAIT has generally denied protection under the Refugee Convention (and the ECHR) on the ground that even though ‘other foreign nationals are not discriminated against to the same extent in Lebanon as the Palestinians are, there is a lack of evidence as to whether or not they are in fact in the same position, especially as regards employment and access to legal services’.263 The UKAIT further held: ‘the treatment of aliens or stateless persons different from and less favourable than that accorded by the state to its own citizens, does not of itself amount to persecution’.264 In KK IH HE (Palestinians - Lebanon) v SSHD, the Tribunal, relying on Professor Hathaway’s definition of persecution and categorization of rights, concluded that the exclusion of a stateless Palestinian from accessing Lebanese government hospitals does not constitute serious harm because ‘the differential treatment of Palestinian refugees stems entirely from their statelessness’ and is therefore justified.265 Following incorporation of the EU 2004 Qualification Directive in UK law, the UKAIT refers to the EU definition of persecution in Regulation 5(1), which ‘“They live under the most appalling conditions, denied the right to travel, free medical care, to register marriages and in some cases to have a driving license”’ (BA, para.65, quoting Mr Shiblak). 259 BA, paras.65-66 and para.81. 260 NM (documented/undocumented Bidoon: risk) Kuwait CG [2013] UKUT 00365(IAC), para.97. 261 BA, para.88. 262 For a similar argument made in the context of women’ refugees and whether they should be recognized refugee status on the grounds of membership to a particular social group or political opinion, see Colin Harvey, Seeking Asylum in the UK: Problems and Prospects, Butterworths, 2000, p.181. 263 KK IH HE (Palestinians – Lebanon) v Secretary of State for the Home Department, 29 October 2004, UKAIT, para.101. 264 Ibid, para.104. The same conclusion was reached in Ireland in the case of a Palestinian stateless person from Libya on the ground that the Libyan policy to control the movement of the Palestinian population within its territory may constitute discrimination (but not persecution) or equally an exercise of its right to regulate immigration; statelessness per se does not confer refugee status: High Court, S.H.M. v Refugee Appeals Tribunal and the Minister for Justice, Equality and Law Reform [2009] IEHC 128. For a similar decision in Australia, see Appeal No. 0808284 [2009] RRTA 454, 21 May 2009, discussed above in section 4.1. 265 KK IH HE, paras.101 and 104. 258 46