Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/00297/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 8 February 2017
On 14 February 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE SAFFER

Between

YAMEN S ESSA ALOMRANI
(NO ANONYMITY ORDER MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Jafar of Counsel
For the Respondent: Miss Fijiwala a Home Office Presenting Officer

DECISION AND REASONS

Background

1. The Respondent refused the Appellant's application for asylum or ancillary protection on 5 February 2016. His appeal against that was dismissed by First-tier Tribunal Judge Lawrence ("the Judge") following a hearing on 28 October 2016.
2. Judge Gillespie granted permission to appeal (10 January 2017) on the ground that it was arguable that the Judge may have made a material error of law in;
(1) inaccurately recording [13] the Appellant's evidence regarding "whether his brother only left Libya once and that was after the You-tube incident",
(2) wrongly concluding [16] that "there are flights to and from Tripoli" despite the guidance in FA (Libya: art 15(c) Libya (CG) [2016] UKUT 413 (IAC) noting [11] "the cessation of direct flights from the United Kingdom?", and
(3) not appreciating that the Appellant's critical poetry and comments on the political situation in Libya amounts to journalism and therefore places him at an advanced risk of harm from the state.

The Judge's decision

3. The Judge noted [7] the previous determination in relation to an earlier appeal (AA/09806/2011) and [8] that this claim arises after the demise of Gaddafi. He considers the documentation produced and [10] identifies them as being not derogatory, generalised with no one being mentioned specifically, and the Appellant not having demonstrated that any of the messages came to the notice of anyone in government in Libya or had an exception taken to them. The Judge determined [11] that the Appellant had not provided any evidence that he held a position of high profile in the Libyan Embassy for his views to merit attention and be reported back to Libya. He noted [12-13] a contradiction in the evidence between the Appellant at the earlier hearing in 2011 and now regarding whether his brother fled to Tunisia in 2011 and finds that the Appellant has forgotten the lie he told in 2011 and has made a new set of lies. The Judge considered [16] that the background information demonstrates an ongoing fluid situation in much of Libya. He finds that there are flights to and from Tripoli where there are displaced persons, and no evidence to suggest that the situation now engages Article 15 (c).

Submissions

4. It was asserted by the Respondent in the rule 24 notice (24 January 2017) that there is nothing to support the assertion of the inaccurate recording of evidence. The Judge was entitled to note the lack of evidence from the Appellant regarding him being reported to the Libyan authorities and not having a high position in the Libyan Embassy. The Judge made findings that were sustainable on the evidence regarding his brother's movements.

5. It was orally submitted by the Respondent that whilst the Judge wrongly recorded that the Appellant said his brother only left Libya once, this does not amount to a material error of law as he does not say he left Libya in 2011 and then returned. The background evidence refers to internal flight problems and the guidance case law only refers to there being no direct flights, and neither refers to there being no flights. The Judge considered all the evidence and made findings he was entitled to make regarding the Appellant's writings and profile.

6. It was submitted by the Appellant in addition to the grounds referred to above [2] that the Judge did not adequately consider the claim in the context of the reality of what the Appellant was doing which included railing against the Ambassador as evidenced within the Home Office bundle. The Appellant does not have to provide positive evidence he had come to the adverse attention of the government. As a human rights activist he would be at an enhanced risk.

Discussion

7. The Judge's notes are difficult to follow due to being in abbreviated form and partly illegible. It appears that the Appellant was asked about the part of his brother's passport that had been produced, and he said that;

(1) the pages he had produced were the main ones,
(2) other pages showed other travels in and out of Libya,
(3) he does not know if they show other travels,
(4) he does not know what happened to his brother,
(5) his brother did not mention anything about fleeing a demonstration because of a demonstration (in 2011) and only mentioned events on 2014.

8. The notes of Mr Rashid, the Home Office Presenting Officer at the hearing on 28 October 2016, records that the Appellant said that the demonstration were during the time of Gaddafi.

9. In relation to ground 1, it was correctly conceded by Miss Fijiwala that there is no evidence that the Appellant said "his brother only left Libya once and that was after the You-tube incident." The recording of that in my judgement is a material of law as it relates directly to the problems the family had and the consequent risk to the Appellant, and a lack of the anxious scrutiny required in a protection claim.

10. In relation to ground 2, FA does not say that there are no flights to Tripoli, merely that there are no direct flights from the United Kingdom. The Judge did not materially err in that regard when he said that there are flights to and from Tripoli, as the background evidence is that there are such flights, just not from the United Kingdom.

11. In relation to ground 3, I do not agree that the Appellant's critical poetry and comments on the political situation in Libya amounts to journalism as not every blogger is a journalist and journalism implies some form of access to a media outlet which is lacking here. His writings however amount to political activism. This could place him at an advanced risk of harm from the state if they became aware of it. That is because I do not accept that not being a high ranking Embassy official would necessarily mean the authorities would not take a dim view of what he said as he was still an Embassy official. The Judge had no evidence as to the number of Embassy employees, and speculated that what a junior official wrote would not have reached the attention of the Ambassador, particularly given the direct criticism of him as identified in the Respondent's bundle. The Judge's assessment of this amounts to a material error of law.

12. Both representatives agreed that if I found there to be a material error of law, it was appropriate for me to remit the matter to the First-tier Tribunal and that no findings should be preserved. In this case I am satisfied that there were 2 material errors of law as identified above.

Decision:

The making of the decision of the First-tier Tribunal did involve the making of an error on a point of law.

I set aside the decision.

The matter shall be remitted to the First-tier Tribunal, not before Judge Lawrence, with a time estimate of 3 hours and an interpreter in Arabic being provided.

Signed:
Deputy Upper Tribunal Judge Saffer
9 February 2017