Tribunal decisions

The decision

IAC-FH-LW-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/09376/2015

THE IMMIGRATION ACTS

Heard at Newport
Decision & Reasons Promulgated
On 14th February 2017
Signed and sent to
Promulgation on 20th February, 2017
On 21st February 2017

Before

Upper Tribunal Judge Grubb
Upper Tribunal Judge Chalkley

Between

M G A
(ANONYMITY DIRECTION made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Miss J Morgan, Counsel
For the Respondent: Mr Stefan Kotas, Home Office Presenting Officer

Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008
The First Tier Tribunal Judge made an anonymity direction. We were not asked to vary it and it, therefore, still applies.

DECISION AND REASONS

1. The appellant is a single male born on 29th September 1984. He was identified by immigration officials and given reporting conditions on 20th January 2015, and claimed asylum on 2nd February 2015.

2. On 5th June 2015, the respondent decided to remove him from the United Kingdom on the basis that his removal would not place the United Kingdom in breach of any of its international obligations. The appellant appealed and his appeal was heard by First-tier Tribunal Judge Solly on 8th July 2016, at Newport.

3. The appellant's claim was that his brothers were involved with militias in Iraq and he would be imputed with political affiliations and thereby be at risk. His family were in dispute with the 'Algazali' family and, additionally, he feared return on the basis that his father had been an accountant and in the diplomatic service in the Gaddafi regime and he feared arbitrary and unlawful arrest, torture and inhumane and degrading treatment from those who target those thought to have been former Gaddafi supporters.

4. Jamal Algazali died in a road accident in 2003 or 2004 and the appellant and his family were in the other vehicle involved and were blamed for the accident. Members of the Algazali family came to the appellant's house and threatened the appellant's family. He was at home looking out the window at the time and saw many cars. He left the house by a back route and, with his youngest brother, was taken to a farm some ten or fifteen miles away where he stayed for just over a month before he came to the United Kingdom. He also claims now that his brothers fight for militia and that he has lost touch with his family in Libya. Reliance was placed on AT and Others (Article 15(c): risk categories) (CG) [2014] UKUT 318 (IAC) and his association with a high-ranking official in the regime, namely the fact that his father was an accountant for the Gaddafi regime Embassies abroad. That alone, he claimed would put him at risk. It was also submitted that AT and Others was out of date and that the security situation in Libya had deteriorated such, that the Tribunal should depart from the country guidance.

5. The judge found that the appellant's claim:-

"contains discrepancies and statements which are contradictory and not internally consistent or consistent with the objective evidence, the cumulative effect of which is to cast serious doubt upon the reliability of the appellant's evidence and the veracity of his individual evidence."

The judge gave examples of those defects, including the failure by the appellant to recall the date of the road traffic accident which sparked the dispute with the Algazali family. The judge believed that it was improbable that the appellant could not recall the date or month of such accident, when on his evidence, he was present in one of the vehicles involved; he was 19 years of age at the time; and it prompted him to leave Libya.

6. The judge refers at paragraphs 48, 49, 50, 51, 52 and 53 of her determination, to various parts of the objective evidence placed before her to demonstrate that she had taken the objective evidence into account in reaching her decision. The judge concluded that the appellant's evidence relating to the risk to himself from his family's situation, could not be relied upon, as it was inconsistent internally and at times implausible. She found that he was not in a category of people identified as being at risk in AT and found that the centrepiece of the appellant's story did not stand. She found that he did not have a well-founded fear of persecution and believed his claim to be fabricated. The judge believed there to be no risk of him being subjected to indiscriminate violence within the scope of Article 15(c), given the decision in AT.

7. The judge separately considered whether the appellant might be at an enhanced risk, given the credibility findings, but found that he was not. She found herself bound by AT and concluded that there was no fresh evidence as to cast doubt on AT. She dismissed the appellant's asylum appeal, his humanitarian protection appeal and subsequently his human rights appeal.

8. Permission to appeal was granted because Upper Tribunal Judge McWilliam found that it was arguable that there was a significant amount of evidence before the judge which was potentially of probative value, when considering Article 15(c), particularly in the light of the agreement by the respondent that the security situation had deteriorated in Libya generally since AT [2014] UKUT 318. It was believed to be arguable the judge had not taken that into account.

9. The hearing before the First-tier Tribunal was on 8th July 2016. On 22nd August 2016, the Vice-President sitting with another Upper Tribunal Judge heard and decided FA (Libya: art 15(c)) Libya CG [2016] UKUT 413, in which they concluded that there had been numerous changes in Libya, since November 2013 and:-

"that they are sufficient to render unreliable the guidance on Article 15(c) given in AT. Amongst those changes are the cessation of direct flights from the United Kingdom, the ebb and flow of fighting in Libya, the rise of Daesh, and the issue of numerous reports and advice, not least by the Foreign and Commonwealth Office. It may be that some of this evidence, the last in particular, would not by itself throw any real doubt on the accuracy of the assessments in AT, but the evidence taken as a whole leads us to say that the Tribunal needs to undertake a new analysis of the Article 15(c) risk, in a new decision that can be considered for marking as country guidance. In the mean time it is better that there be guidance in the form of instructions to determine each case on its own evidence than that there be out-of-date guidance liable to lead to incorrect conclusions. In our judgment AT should not stand as an authority on the Article 15(c) risk in Libya. Instead, that risk should be determined on a case-by-case basis, on the evidence in each individual case, until general up-to-date guidance is again published. It may be that the Tribunal ought also to review the rest of the guidance given in AT: but that is not a matter that falls for decision in this appeal."

10. Miss Morgan relied on the grounds and on the decision of the Vice-President in FA (Libya: art 15(c)) Libya CG [2016] UKUT 413. It was a matter of some six weeks which elapsed between the judge's determination and the Tribunal's decision in FA. The same conclusion could and should have been reached by the First-tier Tribunal when deciding this appeal, she submitted.

11. Counsel accepted that the background evidence before FA was not necessarily the same background evidence which had been placed before Judge Solly.

12. Counsel submitted that Judge Solly's consideration of the background evidence should have led her to reach a conclusion that she could not follow AT. She was urged not to follow AT at the hearing. Miss Morgan accepted, however, that there was nothing identified in the grounds of challenge to suggest that the judge failed to take account of any particular piece of background evidence. Miss Morgan submitted that the judge erred by finding at that time that she was bound by AT.

13. For the respondent, Mr Kotas submitted that as at the date of hearing the judge relied on the objective evidence placed before her. She has done precisely what the Tribunal suggested should be done in FA. She has assessed the risk on the basis of the evidence submitted to her. FA does not prevent an outcome where an appellant is found not to be at risk. This appellant has family in Libya. The judge has demonstrated that she has engaged with the evidence and the grounds fail to identify any particular part of the background evidence, which she did not take into account. He invited us to dismiss the appeal and uphold the judge's decision. Miss Morgan did not wish to make any further submissions to this. We reserved our decision.

14. We have quoted from paragraph 11 of the Tribunal's decision in FA at paragraph 9 above. Country guidance cases are binding on Immigration Judges, unless they are satisfied that the situation in the country in question has deteriorated such that the Tribunal should depart from country guidance.

15. We are satisfied that this judge demonstrates that she was fully aware of that (see paragraph 20 of the determination). The judge could not have known that some six weeks after hearing the appellant's appeal, the Upper Tribunal would consider other background evidence and reach the conclusion it did in respect of AT. Counsel accepted that the evidence before Judge Solly would not have been the same as the evidence before the Upper Tribunal in FA. Counsel also accepted that there was no part of the background evidence which the judge had failed to consider which she should properly have considered. We are satisfied that the judge considered all the relevant objective evidence placed before her and having examined that objective evidence, was entitled to find as she did at the end of paragraph 60 of her determination, that there is no fresh evidence so as to cast doubt on AT. We have concluded, therefore, that her decision must stand and the appellant's appeal be dismissed.

Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008

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.

Richard Chalkley
A Judge of the Upper Tribunal.

TO THE RESPONDENT
FEE AWARD

No fee paid or payable, therefore no award.

Richard Chalkley
A Judge of the Upper Tribunal.