The decision

Heard at Field House

On 11 August 2004

MA (risk from any political activity) Libya [2004] UKIAT 00252


Date Determination notified:

14 September 2004


Mr S L Batiste – Vice-President
Mr J Perkins – Vice-President
Mrs E Hurst JP







For the Appellant: Mr E Fripp of Counsel instructed by Noden & Co Solicitors
For the Respondent: Ms T Hart


1. The Appellant is a citizen of Libya. He was born on 23 May 1981 and so is now 23 years old. He appeals the determination of an Adjudicator, Mr Charles Vaudim d’Imecourt, who in a determination promulgated on 18 December 2003 dismissed his appeal against a decision of the Secretary of State that he was not entitled to refugee status and that removing him from the United Kingdom was not contrary to his rights under the European Convention on Human Rights. It is against that decision that the Appellant now appeals.
2. At paragraph 28 of the determination the Adjudicator said: “I accept that this Appellant is now known to the authorities”. It is common ground between the parties that the Adjudicator did not mean this. Paragraph 28 as written makes little sense. The Tribunal is satisfied, and the parties, agree, that the Adjudicator intended to say: “I accept that this Appellant is not known to the authorities”.
3. It was the Appellant’s case that he had joined and actively supported a political group founded by his cousin. The Appellant distributed tracts against the government. The Appellant had never been caught doing that and there was no reason to find that he was suspected of any political activity against the regime. He left Libya freely on his own passport. It was his case that whilst out of Libya, in Malta, his cousin was arrested and the appellant was afraid that his cousin would be tortured and made to identify the Appellant as a supporter of the cousin’s political movement and that he would be at risk having been so identified. The Appellant did not return to Libya. Rather he made his way to the United Kingdom and claimed asylum.
4. The Adjudicator noted that the Appellant had had contact with his grandfather and other family members but had not produced any evidence that the authorities in Libya were seeking him. It was the Appellant's case that his family was known to the authorities. In 1980 one of his uncles had been arrested and since that uncle’s arrest the Appellant's father has from time to time been summoned to the offices of the Libyan security service to be interrogated. His father complained of ill-treatment on those occasions.
5. Regrettably the Adjudicator does not expressly deal with the Appellant’s concern that he would be at risk because his cousin would have said things against him. However the Adjudicator does say in perfectly clear terms at paragraph 28 of his determination that there “is not a jot of evidence that there is any real likelihood that the authorities in Libya are concerned with this Appellant in any way.”
6. The grounds of appeal extend to some fifteen paragraphs but really make two points. They complain that the Adjudicator has made no proper findings of fact about the Appellant’s case and they claim that the Adjudicator has wrongly assessed the risk on return to the Appellant as a failed asylum seeker.
7. Regrettably the grounds are right when they complain that the Adjudicator made no finding expressly on the Appellant’s claim that he would be at risk because his cousin would have been tortured and would therefore have incriminated him. However we recognise from the background material that people detained for engaging in activities against the government generally risk ill-treatment. The grounds of appeal complain at paragraph 4 that “the Appellant’s family were constantly harassed and persecuted by the Libyan authorities prior to March 2003…because of the Appellant’s maternal uncle (a political prisoner since 1980)” and such conduct is what we would expect of the Libyan authorities in such circumstances. The Libyan authorities would have been very interested in the Appellant’s family if his cousin had incriminated the appellant during interrogation. We cannot accept that the Libyan authorities would have left alone the Appellant’s family if his cousin had said things against him yet the Appellant gave evidence that his family were left alone at least in the period immediately after the cousin’s arrest. There has been no evidence at any stage of the family having further problems. Whilst the Adjudicator can be criticised justly for not explaining his position more clearly we do not accept there is any error of law in his conclusion that there is not “a jot of evidence” that the authorities would be interested in the Appellant.
8. This finding is sufficient to dispose of the appeal but there are further points that have to be made.
9. Grounds 8-11 criticise the Adjudicator for findings made about the Appellant’s passport. We do not go into more detail about these because, as Mr Fripp quite properly and realistically explained, these do not go to the substantial issues in the case. If the Appellant is known to be politically active he is at risk notwithstanding any passport he might have. Conversely if he is not known to the authorities or wanted for political activities then the absence of a passport will not create problems.
10. An analysis of appeals such as this must consider the decision of the Tribunal in ME (Risk-failed asylum seekers – Hassan) Libya CG [2003] UKIAT. One member of the Tribunal that heard that appeal is a member of the Tribunal deciding this appeal. It was the conclusion of the Tribunal in ME (Risk-failed asylum seekers – Hassan) Libya CG that a returned asylum seeker will not necessarily be perceived as someone who had opposed the government of Libya and would not necessarily risk persecution.
11. Mr Fripp accepted that ME (Risk-failed asylum seekers – Hassan) Libya CG was right subject to two clarifications.
12. Firstly, at paragraph 20 in ME (Risk-failed asylum seekers – Hassan) Libya CG the Tribunal said “Although the background material is sensitive to the theoretical risk facing people who have done nothing more serious to undermine the regime of Libya than to seek asylum somewhere else, there is no direct evidence of such a person being persecuted. The examples of people being seriously ill-treated all appear to relate to those who have been involved, or at least seriously suspected of being involved, in serious political activity or are radical Islamic supporters.” Mr Fripp submitted that the phrase “in serious political activity” could be interpreted as meaning that the Libyan authorities discriminated between different degrees of political involvement.
13. Mr Fripp drew to our attention a report from Alison Pargeter who is a research follow at the International Policy Institute at King’s College, at the University of London. Her report before us is dated 7 August 2004. This report emphasises how the authorities in Libya still regulate society closely. She said that the regime “is particularly suspicious of people who have spent unauthorised time in Britain. This is because the UK is the centre of Libyan opposition activity abroad.” She contained that “applying for asylum is generally considered as a betrayal of Qadhafi’s revolutionary system and anyone doing so is looked upon unfavourably by the regime.” We accept that Ms Pargeter offers these opinions in good faith with the benefit of her experience as an academic and the opinions are consistent with other material before us. We find that the fact that seeking asylum abroad is viewed with disfavour does not mean that every person known to have claimed asylum abroad risks persecution. Generally there is no such risk unless the returned asylum seeker is linked with some political activity.
14. The decision in ME (Risk-failed asylum seekers – Hassan) Libya CG does not, and was never intended to, suggest that only people who were involved in particular activities to a high degree would be at risk on return. Each case must be considered on its own merits. The evidence is that the authorities in Libya are deeply suspicious and that even now anything but the most fleeing political activity might be enough to create a risk of serious ill-treatment. We are happy to provide this clarification.
15. Secondly Mr Fripp submitted that returned asylum seekers remained at risk in Libya both because the authorities would be suspicious of them and because the regime is volatile. Evidence for the proposition that a failed asylum seeker remains at risk even if he enters the country safely comes from the end of Ms Pargeter’s report. Ms Pargeter says that a person who had claimed asylum would for that reason have “a black mark against their name”. She said “It is possible that they may face intimidation and harassment as they would be considered as soft targets.” We accept that it is possible. That is how the regime in Libya has behaved in the past. However we do not accept that there is a real risk of an unsuccessful asylum seeker being persecuted on some future occasion because he claimed asylum abroad and then returned to Libya. There is no direct evidence that that has happened but there is evidence in the Dutch report, to which reference is made in ME (Risk-failed asylum seekers – Hassan) Libya CG of people who had returned to Libya going about their lives unhindered. We are not aware of any evidence of unsuccessful asylum seekers having trouble with the authorities after they have entered Libya. There is evidence in the Dutch report that such people have not had problems.
16. We agree with Mr Fripp that Colonel Qadhafi can be described fairly as “volatile”. Again there is a risk of a change in attitude by the regime but in the light of events in recent years we cannot describe it as a real risk. We do not accept that there is, generally, a real risk to people who have returned to Libya just because they are known to have claimed asylum in the United Kingdom.
17. It follows that although we are happy to explain ME (Risk-failed asylum seekers – Hassan) Libya to the extent indicated above we dismiss this appeal.

Jonathan Perkins

7 September 2004