Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/06682/2015

THE IMMIGRATION ACTS

Heard at: Manchester
Decision Promulgated
On: 1st September 2016
On 13th September 2016

Before

UPPER TRIBUNAL JUDGE BRUCE

Between

AFA
(anonymity direction made)
Appellant
and

Secretary of State for the Home Department
Respondent

For the Appellant: Mr Schwenk, Counsel instructed by the Immigration Advice Service
For the Respondent: Mr Harrison, Senior Home Office Presenting Officer

DETERMINATION AND REASONS

1. The Appellant is a male national of Libya date of birth 9th November 1969. He seeks international protection on grounds of his imputed political opinion, and in the alternative, humanitarian protection.

2. The basis of the Appellant's claim for asylum, made on the 12th August 2014, was that he had come to the adverse attention of an Islamist militia operating in Libya, known as Ansar al-Sharia. He had been using social media to criticise their conduct, just as he had previously been critical of the Gaddafi regime. This group had visited his brother's home in Tripoli on the 30th July 2014 and had informed his brother than they knew about the Appellant's "offensive" posts and that he should stop calling them terrorists. The Appellant was aware that other internet activists had been kidnapped by Islamists, and fearing for his safety had claimed asylum.

3. The Respondent and First-tier Tribunal had both rejected the Appellant's claim on the basis that no objective risk had been established. In a decision dated the 18th May 2016 I set the decision of the First-tier Tribunal aside with the consent of the Respondent. The Respondent had at an earlier hearing been represented by Senior Presenting Officer McVeety who had accepted that the decision was legally flawed for want of clear findings on material matters. In particular it was not clear whether the Tribunal had accepted that the visit from Ansar al-Sharia had taken place, or if it did, whether it constituted a threat. A copy of my 'error of law' findings are attached. The parties agreed that the decision in the appeal would need to be re-made, but that some of the findings could be preserved. The findings expressly preserved were:

The Appellant was found to be "generally" credible
Ansar al-Sharia are a "shadowy network of Salafi-Jihadist militias" who are engaged in violent activities
The Appellant has posted comment on Facebook which are critical of the conduct and beliefs of Islamist organisations and militia groups in Libya
At date of First-tier Tribunal hearing that Facebook account had 3067 'friends' following the Appellant's posts
His political views (ie opposition to the Islamist agenda, commitment to secular democracy) are genuinely held

Other matters not in issue are that the Appellant has lived largely in the United Kingdom for approximately 9 years (having been granted successive periods of leave as a student), and that he is originally from Tripoli.

The Evidence

The Appellant's Evidence

4. The Appellant adopted his witness statements dated 6th July 2015 and 25th August 2016. He confirmed the account he had given previously, as summarised at [2] above. He believed that he had come to the attention of the Islamist group because he ran a well-known blog. It had started as an anti-Gaddafi website before the revolution and at one time was read by in excess of 5000 'friends'. The Appellant explained that before the revolution the opposition movement had not been divided in the way it is now, and so the people who have now threatened him might easily have followed his blog once upon a time. The difficulty now is that the movement has fragmented and there is in effect all out war. The men who paid the visit to his brother are serious people. They keep track of who they perceive to be 'on their side' or otherwise.

5. The Facebook account that gave rise to these problems is no longer active. After his asylum claim was refused the Appellant fell into a depression. He was anxious about his future and worried about what might happen to him if he returned to Libya so he deleted all his posts and has not put anything else up there. He only uses the account now to follow the news of other friends.

6. Mr Harrison asked the Appellant if Ansar al- Sharia had been back to the family home. As far as the Appellant is aware, they have not. That visit in July 2014 was the only one, but, he reasons, it is the only one they need make. They made their point clear, and the Appellant's brother informed them that he was living in Europe. They got what they wanted out of that situation because the Appellant was indeed cowed into taking down his posts and he stopped criticising them online. That did not mean, however, that he would be safe if he returned to Libya today. That is because he has already been identified as an opponent. They keep records. If the Appellant was stopped at a checkpoint manned by Ansar al-Sharia or any of their allies, he could be in immediate danger. If he returned to his family home in Tripoli their spies in the neighbourhood would be immediately aware.

7. In respect of his mental health the Appellant said that the whole situation has been difficult for him. He does not believe in ant-depressants so he is trying to treat himself by walking for at least 2 hours every day. Walking helps him to relax, and he is generally feeling better than he was a couple of years ago.

Country Background Material

8. The extant country guidance remains AT & Ors (Article 15(c) Risk Categories) Libya CG [2014] UKUT 318 (IAC). In that decision the Tribunal concluded that the security situation in Libya did not engage Article 15(c) of the Qualification Directive, and that for a healthy young man, internal flight was available. In her latest Country Information and Guidance document (Libya: Security and Humanitarian Situation June 2016) the Respondent however acknowledges that the situation has deteriorated since that decision was promulgated [at 2.3.14-2.3.16]. I was invited by both parties to review the latest country information available.

9. The general conclusions of the June 2016 CIG are that the situation in Libya is markedly worse than it was in late 2013 when AT & Ors was heard. A flavour of the conclusions of various reporting agencies, including UNHCR, the UN, the FCO, US State Department and Amnesty International is found at 9.1.1 where the 2016 Human Rights Watch report is cited:

'Amid tenuous United Nations-led peace talks, Libya's political and security crisis deepened as two rival governments competed for legitimacy, control of vital institutions, and international support. Despite some factions signing a political deal in December, there was no end in sight to the crisis. As armed clashes continued, the country edged towards a humanitarian crisis, with almost 400,000 people internally displaced and increasing disruption to basic services, such as power and fuel supplies.

'Forces engaged in the conflict continued with impunity to arbitrarily detain, torture, unlawfully kill, indiscriminately attack, abduct and disappear, and forcefully displace people from their homes. The domestic criminal justice system collapsed in most parts of the country, exacerbating the human rights crisis. Armed groups that pledged allegiance to the extremist group Islamic State (also known as ISIS) continued to commit serious human rights abuses, including unlawful killings and summary executions, and succeeded in expanding and gaining control over towns in the centre of the country, including Sirte.

10. And at 7.1.2:
A report published in September 2015 by the United Nations Office for the Coordination of Humanitarian Affairs (UNOCHA) also noted the fragmented nature of the conflict:
'The two main Libyan political factions that emerged post-revolution, the GNC and the HoR, are often described as "Islamists" and "liberals" respectively. The former is largely represented today by the so-called Tripoli Government, based in the west of the country, while the latter is largely represented by the internationally recognized Tobruk Government led by the HoR, based in the east. The conflict is mainly between two fighting blocs: the GNC-aligned Libya Dawn and the HoR-aligned Dignity. However, much of the conflict, and Libya itself, is fragmented into localized battles and power dynamics, driven by loyalties along often-overlapping ideological, regional, local, tribal and ethnic lines.
'An estimated 1,700 armed groups and militias are active in Libya, some of which were formed as brigades during the 2011 uprising, while others were formed in the later stages or aftermath of the 2011 conflict. This fragmentation challenges the formation of a national consensus or shared vision among Libyans on how to address the legacy of their history, manage the transition or share power thereafter. Chaos across the country has also provided fertile ground for the development of the Islamic State in Iraq and the Levant (ISIL) and affiliated groups. ISIL's territorial influence has grown considerably in 2015.'15

11. The June 2016 CIG report confirms [at 7.5] that Ansar al-Sharia remain active, as does the Human Rights Watch report dated 27th January 2016 which describes them as part of an Islamist coalition fighting alongside ISIS against the recognised government. These "warring factions indiscriminately shelled civilian areas, arbitrarily seized people, tortured and looted, burned and otherwise civilian property in attacks that in some cases amounted to war crimes" [at 32 A's bundle].

12. In respect of the possibility of internal flight the CIG reports:
2.4.1 Travel within Libya is restricted by violence and conflict between various armed militias and pro-government troops in most of the populated parts of the country. This is further compounded by road blocks and control points manned by conflicting militias, including Islamic State/Daesh and other terrorist groups. The south of the country is subject to checkpoints and roadblocks operated by the Government and by militias. Large parts of the country are primarily desert areas with few towns or inhabitants. There is a lack of infrastructure and supplies, including fuel and transport. Most airports are closed, or in the control of armed militias. There is a risk of landmines and unexploded ordinance in many areas.
2.4.2 Return to an area that is not the person's home may be reasonable in some cases. Decision makers must give careful consideration to the relevance and reasonableness of internal relocation on a case-by-case basis taking full account of the individual circumstances of the particular person, including where they originate from in Libya and where they will be returning to, and the latest available country information.

The CIG specifically identifies Ansar al-Sharia as an organisation imposing roadblocks with the purpose of impeding regional movement by civilians [at 11.1.3].

13. The danger of travel, in which civilians are required to pass through roadblocks operated by armed factions is also highlighted by the US State Department: "various militias have supplanted the police in maintaining internal security. Militia members operate checkpoints within and between major cities. Militia groups sometimes detain travellers for arbitrary or unclear reasons".

14. As to the humanitarian situation, particularly for the internally displaced, the June 2016 CIG urges caution. Whilst some parts of the country remain relatively quiet for now (the east is particularly violent, Tripoli "less so") [2.3.17], the impact of past fighting, and the spectre of future instability, has had a clear impact on the lives of the civilian population:

2.3.5 Humanitarian conditions in Libya have deteriorated since the fall of former president Gaddafi. There has been extensive damage to civilian homes and public infrastructures, including health, education, roads and administrative facilities, disrupting basic services.
2.3.6 Conflict has impacted all the major towns and cities, with the majority of the population affected to some degree by lack of essential resources, including medical care. The healthcare system has deteriorated, leading to an increase in serious illness and disease. 1.9 million people in Libya require humanitarian aid to meet their basic healthcare needs, with particular concern in Benghazi, Tripoli, Derna, Sirte, Al Jifarah, Al Kufra,Wadi Al Hayat and Ghat (see Humanitarian situation).
2.3.7 There are approximately 435,000 internally displaced people in Libya. Living conditions for many internally displaced persons (IDPs) families remained poor and in some instances unsafe. Members of particular IDP communities remain vulnerable to abductions and torture on account of their origin, perceived allegiances during the 2011 conflict, and the current political divide (see Humanitarian situation).
2.3.8 There are estimated to be 1.28 million people at risk of food insecurity, of which 210,000 are in immediate need of food assistance. The most severe cases are reported in Benghazi and in the south. Almost half the population (which is approximately six and a half million) are in need of humanitarian assistance. In January 2016 an estimated 21% of Libyan children aged between 6 and 59 months were suffering from chronic malnutrition (see Humanitarian situation).
2.3.9 Vulnerable groups include the displaced (particularly children, the elderly, women and those with low economic means) female headed households, persons with disabilities and the chronically ill. The most severe needs in terms of geographic areas are those in the east and south of the country.
2.3.10 In general conditions across the country are not so poor that removal would be a breach of Article 2 or 3, however, the situation in parts of the country, including Benghazi and some areas in the east and south are likely to do so, particularly for members of vulnerable groups. Decision makers should consider the individual personal circumstances of each person, taking into account the latest country information (see Humanitarian situation).

My Findings

Asylum

15. The Appellant is from Tripoli and the starting point is whether or not he has established a real risk of serious harm in his home area. I find that on the lower standard of proof that risk has been made out. The First-tier Tribunal has accepted that the Appellant was a generally credible witness, and that is a finding that I endorse. I had an opportunity to hear evidence from the Appellant myself and I found him to be a consistent and thoughtful witness. He did not seek in any way to exaggerate his claim. His responses to Mr Harrison's questions were candid: the militia have only ever visited his family on one occasion, the Appellant is in regular contact with his family and he would expect to know if the militiamen had been back. It would have been very easy for the Appellant to seek to inflate the evidence and it was to his credit that he did not do this. Similarly, he has actively sought to minimise the risk to himself by deleting all the posts on his Facebook page and to step back from his online campaigning. Those are not the actions of a cynic, they are the actions of someone who is genuinely concerned about his fate should he return home. I see no reason to reject the Appellant's claims that in July 2014 persons identifying themselves as Ansar al-Sharia visited his brother at the family home and Tripoli and complained about the Appellant's online behaviour. I accept that as a result the Appellant himself has a genuine subjective fear about the consequences for him should he come into contact with this group or any of its allies. On the basis of the evidence before me I find that fear to be objectively well-founded. There is no doubt in my mind that the purpose of the visit in 2014 was to stop the Appellant from campaigning against them. He believes that if he had been there he would have been abducted and possibly killed. The country background material indicates that this was reasonably likely. Whilst Mr Harrison makes the good point that the militia has not been back to the family home in two years, the fact is that they have identified the Appellant as an opponent, and as someone who was prepared to speak out against them. I accept that if he returned to Tripoli, and resumed his life at home, or even contact with his family, word would likely get back to the militia. There is a real risk of harm in Tripoli.

16. Mr Harrison submitted that the Appellant could relocate within Libya, for instance living in safety in Tobruk. Tobruk is under control of the HoR internationally recognised government and is, according to the Respondent's CIG, "less" violent than, for instance, Benghazi [at 2.3.15]. Two problems arise for the Respondent in positing Tobruk as an alternative place of safety. The first is that I must be satisfied that relocation there would provide a safe and durable solution for the Appellant. The description that the city is "less" violent than Benghazi or Siirte is not a comparison that is terribly helpful to me in determining whether it could be described as either. It is not a positive endorsement that it is a place of safety. The second problem is that in order to get to Tobruk (or indeed Tripoli) the Appellant would presently need to travel overland. In AT & Ors the Respondent identified Tripoli and Benghazi international airports as points of entry for returnees. Both are now largely destroyed, or are at any rate not open for flights. The only other way in, on the evidence before me, would be by flying to a neighbouring country, for instance Tunisia or Egypt, and travelling by road. As the information in the CIG makes clear, that route would be fraught with danger [see 12 above]. Whilst an ordinary Libyan, with no declared or perceived affiliation with either side, may be able to navigate his way through the various checkpoints and roadblocks, I find that the process would be substantially more dangerous for a person who has been living abroad for nigh on a decade and who has been specifically identified as an opponent of the Islamist militias. Even if he were able to talk his way through one checkpoint, the 'wrong answer', or a check on his identify, would give rise to serious harm at the next. I am satisfied that the Appellant would face a real risk of serious harm if he attempted to make that journey.

Humanitarian Protection

17. If I am wrong and the Appellant is not at a direct risk of harm from the Islamist militia that he has angered (or any of its affiliates), I am satisfied that the humanitarian and situation in Libya has deteriorated to the extent that Article 15(c) of the Qualification Directive1 is engaged. The information in the June 2016 can be summarised as follows:

a) the humanitarian and security situation has demonstrably worsened since AT & Ors;

b) the country is politically divided by two warring factions, but that on the ground those two broad coalitions - the Islamist GNC/Libya Dawn and the 'liberal' HoR/Dignity - splinter into as many as 1700 armed groups all vying for territory, resources and influence;

c) civilians across the country have borne the brunt of the fighting, with indiscriminate bombing, abductions, killings, arbitrary detention and torture widely reported;

d) the ability of the state to protect its civilians is severely compromised by the collapse of the judicial system, the lack of a functioning police service and the fact that the 'government' have now withdrawn to Tobruk where they retain nominal control over only part of the country;

e) at present half of the population is in need of humanitarian assistance and over 20% of children are suffering from malnutrition;

f) the ability for civilians to travel across the country is dependent on their ability to safely pass through regular checkpoints which are manned by various and competing armed militias (including 'Islamic' State) and to avoid the many areas which are compromised by land mines and unexploded ordinance.

18. As I note above in the context of asylum, the Appellant's ability to navigate his way safely across that unstable and dangerous landscape depends largely on his ability to give the 'right' answers at the numerous checkpoints that he would have to pass through in order to reach a place of relatively safety in which he could live. The fact that he has been out of the country for many years means that he is unlikely to be familiar with the shifting alliances 'on the ground' that might enable a more savvy local to be able to pass through these roadblocks unhindered. That he has recently returned from Europe may mean that he is more likely to be targeted for questioning (with an attendant risk of ill-treatment), extortion, or worse. He will not be familiar with the various groups, nor will he be aware of which areas would be unsafe due to bombing or mines. Overall I am satisfied that the evidence demonstrates that there are substantial grounds for believing that the Appellant would, solely on account of his presence in Libya, face a real risk of being subject to serious threat to his life or person.

Decisions

19. The decision of the First-tier Tribunal contained an error of law and was set aside.

20. I re-make the decision in the appeal as follows:

"The appeal is allowed on asylum grounds.

The appeal is allowed on human rights grounds.

The appeal is allowed in the alternative on grounds that the Appellant requires humanitarian protection".

21. Having regard to the nature of the evidence I make the following direction for anonymity, pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 and the Presidential Guidance Note No 1 of 2013: Anonymity Orders.

"Unless and until a tribunal or court directs otherwise, the Appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of his family. This direction applies both to the Appellant and to the Respondent. Failure to comply with this direction could lead to contempt of court proceedings".

Upper Tribunal Judge Bruce
7th September 2016