Tribunal decisions

The decision

IAC-AH-DN-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: AA/08154/2014
AA/08360/2014
AA/08361/2014

THE IMMIGRATION ACTS

Heard at Bradford
Decision & Reasons Promulgated
On 29 July 2016
On 1 November 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE HANBURY

Between

Mr Dirgham [A] (1)
Mr Hisham [H] (2)
Mrs Asma [K] (3)
(ANONYMITY DIRECTION not made)

Appellants
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr T Hussain, Counsel
For the Respondent: Mr M Diwncyz, Home Office Presenting Officer

DECISION AND REASONS

Introduction

1. The present appeal came before me on 17 March 2016. Following the hearing I decided that although the Immigration Judge had been entitled to reject the appellant's account of events there were errors in his decision which appeared material to the outcome. Accordingly, I directed a further hearing to be listed for two hours following which it was to be decided whether the decision of the First-tier Tribunal could be allowed to stand. I directed the filing of further evidence including the provision of updated objective material in relation to the state of Libya.

2. The case was re-listed before me on 29 July 2016 at Bradford.

3. Both parties attended represented as above.

The Hearing

4. At the hearing Mr Hussain said that the key issue was the risk on return. I was referred to a lengthy report from Alan George consisting of 81 pages. This was dated 14 July 2016. However, he pointed out that the version of the report in the bundle lodged with the Tribunal did not follow the same format as the version he relied upon. Mr Hussain is said to be sending a fresh version through as of today I have not received it.

5. At the hearing Mr [A] confirmed the contents of his updated witness statement which he adopted. Nevertheless, he stood by the refusal letter but had nothing to add. He described Dr George has having done a "thorough job" and did not dispute the security situation in Libya as outlined by that expert.

6. Mr Hussain submitted that his client being from Sirte could not safely return there. Paragraph 42 of Dr George's amended report indicates that internal security in Libya is largely in the hands of militia. Apparently, where road blocks occur, snap decisions will be made which can be a matter of life or death. There is a lack of police presence and the situation in Libya crosses the threshold required by Article 15(c) of the Council Directive 2004/83/EC (Qualification Directive) in that there was:

"A serious and individual threat to a civilian's life or person by reason of indiscriminate violence in situations of international or internal armed conflict."

7. Dr George believed that the situation in Libya crossed this high threshold.

8. There was extreme insecurity both in the north and the south of Libya where more than a million children were unable to go to school due to bombing and other violent activity. Several scenarios are presented by Dr George at paragraph 96 of his report and at paragraph 97 Dr George stated that he expected a deterioration in the then current security situation. At paragraphs 98 to 107 he gives a general overview of the situation, describing it as extremely bleak. At paragraph 108 he describes the individual circumstances of the appellant, including the fact that he is from Sirte and a former member of the Gaddafi tribe. At paragraph 109, it was accepted, the expert had strayed into the assessment of credibility by suggesting that the appellant's account was plausible. However, Mr Hussain submitted, the expert was entitled to comment on documents he had seen. Those documents include some provided by the appellant's father. The indiscriminate nature of the violence in Libya was such as to prevent the appellant travelling freely in that country. As he was from the same tribe as Colonel Gaddafi it was impractical for him to relocate. A simple factual scenario was that the appellant could be stopped at a road block, where it is likely he would be recognised for his tribal links. This would be enough to put him at risk. I was particularly referred to paragraph 128 which dealt with the prospects of internal relocation. The general risk was summarised at paragraph 136. Internal security was poor (see paragraph 138 of Dr George's report). I was invited to find that it was unduly harsh to return the appellant and expect him to relocate. Pulling all these threads together, it was submitted that the appellant would clearly be at risk on return.

9. I was also referred to the country guidance report published in June 2016(?). It was suggested that there was a strong element of Daesh/IS. There were also restrictions on travel and it was impossible to ignore the culture of impunity which existed in Libya. The risks were tangible. There was an arbitrary treatment of civilians (see paragraph 8.16). In summary, the country guidance supported broadly what Dr George had said and indicated that safe return was impossible. The 15(c) risk was substantial and I was invited to find the appellant a refugee because of his ethnicity or membership of a particular social group. Alternatively, I was invited to find that the respondent would be in breach of his obligations under Articles 2-3 of the ECHR. Finally, I was invited to find that Article 15(c) of the Qualification Directive was engaged/paragraph 339C of the Immigration Rules.

10. At the end of the hearing I reserved my decision as to the ultimate disposal of this appeal.

Discussion

11. The principal issue in the appeal relates to the extent of the appellant's, and his family's, risk on return. The appellant relies in large part on the report by Alan George dated 14 July 2016. Unfortunately, the version supplied to the Tribunal did not match the version to which Mr Hussain referred but the contents of the original version which I have seem to be in line with other evidence about Libya and I am not aware of any material changes since it was prepared, or certainly no significant improvements in the state of that country. I have been able to glean the material points arising from that report and summarise the more important ones below.

12. As Mr Diwncyz accepted, Dr George appears to have been thorough in his analysis of the situation the appellant and his family would face in Libya if they were returned there as at the date of the hearing. The more important details were summarised by Mr Hussain in his submissions. They include:

(1) The lack of any effective internal security with militias taking the role of the police (referred to at paragraph 42 of Dr George's report). If you are stopped at one of the de facto checkpoints set up by these militias it is possible for that person to be shot, simply because he fails to answer a question in a particular way. The lack of police presence represents a serious threat to individual security.

(2) Paragraphs 46 and 64 of the report highlight the extreme insecurity in certain parts of the country. There is a large amount of internal displacement with many children unable to go to school. There are soon to be a million children who do not go to school. It was submitted that there were several "15C scenarios" operating within the country.

(3) In addition there were several factors in the appellant's individual case: he is from Sirte and from the Gaddafi tribe. These factors alone made it very difficult for the appellant and his family to travel within Libya. Sirte itself seems to be, effectively, under the control of IS. Were the appellant and his family to move to another part of Libya they would be likely to encounter a road block at which he may well be asked who he is and what tribe he is from. The fact that he was from the Gaddafi tribe would be enough to put him at risk. Were this to occur he would be likely to be subject to arbitrary ill-treatment.

13. In summary, the safe return of the appellant and his family to Libya was not possible and the ingredient for a risk sufficient to satisfy the requirements of Regulation 15C appeared to be met. The appellant therefore qualified for humanitarian protection under 339C - 15C of the Qualification Directive. In addition, he admitted that that it would be unduly harsh to return the appellant and his family to Libya, which would be contrary to the Refugee Convention because the appellant would be at risk of persecution for a Convention reason or reasons. The appellant belonged to a particular social group (ethnicity and membership of the Gaddafi tribe). Finally, it was submitted that Articles 2-3 of the ECHR were engaged in that the appellant would face inhuman or degrading treatment, possibly death, if he were returned to Libya.

Conclusions

14. I have reached the following conclusions based on the evidence and submissions presented before the Tribunal:

(1) Sirte from which the appellant and his family come, was, at the date of the hearing, an Islamic State stronghold (see the Country Information Report at Q.3.15-16 - dated June 2016).

(2) The internal security situation in Libya is not improving. There are very high levels of violence in certain parts, including Benghazi, Denna and Sirte. These areas are areas were there is indiscriminate violence to qualify within Regulation 15C of the Qualification Directive.

(3) Other areas in Libya, such as rural areas, are safer but it is not necessarily possible to travel to those areas given the numerous road blocks and controlled by militias. Alan George paints a chaotic picture and describes the random nature of acts of violence perpetrated by members of these militia. Any confrontation with one of these groups is likely to result in violence. They of course include Islamic State, which is well-known for its brutality.

(4) Even if the generalised state of violence were not established, it is necessary in each case to consider an individual's personal circumstances to ascertain whether he would be personally at risk (see COIR at 2.3.18). For the reasons already given the appellant would be at risk by reason of his membership of the Ghaddafi tribe and other associations more fully outlined in Dr George's report (see, for example, his conclusions at paragraphs 135-140).

(5) There is a climate of impunity which makes it impossible for an individual to call on the resources of the state due to their fragmented nature and lack of coherent forces of law and order in Libya. If one happens to be in an area controlled by one of the militia groups referred to one has little prospect of calling on the state for any degree of protection. If one finds oneself in an area controlled, for example, by ISIS, they are the police. Crimes include beheadings, abductions and disappearances. Large numbers of people appear to have gone missing. Staggering levels of abuse and violence are present in some areas.

15. Given the circumstances I have concluded that the appellant qualifies under the Refugee Convention because of his membership of a particular social group, alternatively, that Article 3 of the ECHR is engaged by these circumstances, which give rise to a serious risk that the appellant, and by extension, the appellant's family would face a real risk of suffering inhuman and degrading treatment in Libya. Alternatively, there is a generalised state of insecurity such as to give rise to a need for international humanitarian protection under Regulation 15C of the Qualification Directive.

Notice of Decision

16. The decision of the First-tier Tribunal is set aside and the following decision of the Upper Tribunal is substituted.

17. I allow the appeal under the Refugee Convention.

18. I allow the appeal under Article 3 of the ECHR.

19. I find that the appellant qualifies for international humanitarian protection.

No anonymity direction is made.

Signed Date

Deputy Upper Tribunal Judge Hanbury

TO THE RESPONDENT
FEE AWARD

I make no fee award as no fee was payable in this case.

Signed Date

Deputy Upper Tribunal Judge Hanbury