Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/09571/2015

THE IMMIGRATION ACTS

Heard at: Columbus House, Newport
Decision and Reasons Promulgated
On: 1 August 2016
On: 15 August 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE J F W PHILLIPS

Between

ME
(anonymity direction made)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Ms S Latimer, Duncan Lewis & Co
For the Respondent: Mr I Richards, Home Office Presenting Officer

DECISION AND DIRECTIONS

1. This is an appeal against the determination of First-tier Tribunal Judge M M Thomas in which she dismissed the appeal of the Appellant, a citizen of Libya, against the Secretary of State's decision to refuse asylum and set removal directions.

2. The Appellant arrived in the United Kingdom on 7 February 2015 and claimed asylum the following day. His application was refused by the Respondent on 12 June 2015. The Appellant exercised his right of appeal against this decision and this is the appeal that was heard before Judge Thomas on 19 November 2015 and dismissed. The Appellant's application for permission to appeal against the First-tier Tribunal Judge's decision was granted on 10 February 2016 by First-tier Tribunal Judge Cruthers in the following terms

Realistically, the grounds on which the appellant seeks permission to appeal do not seek to resurrect/pursue arguments in relation to asylum, Article 3 of the ECHR, Article 8 of the ECHR or anything other than Article 15(c) of the Asylum Qualification Directive.

I think it is arguable, as per the grounds, that the judge did not express any final reasoned conclusion on the test provided for in Article 15(c) (and in paragraph 339C of the immigration rules). But I think the judge did come very close to that-amongst other things, she set out the paragraph 339C test in her paragraph 35 and referred to case law concerning the application of Article 15(c) in her paragraphs 61, 62, 63 and 64 (the last being a reference to the current country guidance case for Libya - AT and Others CG [2014] UKUT 00318). By reference to the report of a country expert, Dr George, the judge rejected the appellant's account that he faced a real risk of serious harm on account of originating from Bani Walid and/or on account of his membership of the Warfalla tribe (the judge's paragraph 75).

In light of the above, it may be arguable (for the respondent) that the judge did effectively decide the Article 15(c) question - even though she may not have said so in terms. In deciding that a grant permission is only just appropriate here, I also take into account that paragraphs 11 and 12 of the appellant's skeleton argument for the hearing on 19 November 2015 all but concede (by reference to Dr George's report) that the evidence was unlikely to be sufficient to make good the appellant's Article 15(c) arguments.

3. By a rule 24 response dated 23 February 2016 the Respondent opposed the appeal.

4. At the hearing before me Mr Richards appeared for the Secretary of State and Ms Latimer represented the Appellant. No skeleton arguments were submitted.

Background

5. The Appellant is a 33-year-old Libyan citizen who claims to have been born in Bani Walid and to belong to the Warfalla tribe. The Appellant claimed to have served as a member of the Green Revolutionary Guard until the fall of the Gaddafi regime and as such to be seen as associated with the regime. His home in Tripoli was searched in 2011 whilst he was away and his family were told that he should contact the authorities. The appellant left Libya travelling to Tunisia and then Malta where he got married and remained for 2 years. In Malta the Appellant was attacked and beaten on 2 occasions by officials from the Libyan Embassy. Having been refused a UK visa in May 2014 the Appellant went to Libya to visit his mother remaining there for 40 days before returning to Malta. Whilst there a warrant was issued for his arrest but he was able to escape the attentions of the authorities.

6. The First-tier Tribunal Judge did not find the Appellant's account credible (paragraph 59). In dealing with the Appellant's claim to fear persecution or serious harm due to his origins the Judge did not accept that he faced such persecution or harm (paragraph 75). Accordingly, the appeal was dismissed.

Submissions

7. For the Appellant Ms Latimer relied on the grounds of appeal to the Upper Tribunal. There was only one ground being that the First-tier Tribunal Judge failed to give any or adequate consideration to whether the Appellant was at risk of indiscriminate violence for the purposes of Article 15(c) of the Qualification Directive. Ms Latimer referred to paragraph 35 of the decision showing that judge had properly self-directed to paragraph 339C of the Immigration Rules and to paragraphs 69 and 70 showing that it was accepted that the Appellant came from Bani Walid and that the issue was whether this combined with his membership of the Warfalla tribe caused a heightened risk. Ms Latimer said that the Judge should have examined these factors further. The Judge does not identify what evidence she has taken into account in this respect and despite accepting that the Appellant came from Bani Walid does not consider risk on return other than to Tripoli.

8. For the Respondent Mr Richards said that there was no material error of law. The report of Dr George, extensively quoted in the decision, is a key item in the decision made. It was written shortly before the date of the hearing. The Judge takes it fully into account. The Judge deals adequately with the issue of Article 15(c). She sets out the law in detail. At paragraphs 75 and 76 the Judge quotes from Dr George's report and she draws her findings at paragraph 81. The Judge does all that she was required to do and all that she could have done. No material error of law is identified.

9. Ms Latimer did not respond and I reserved my decision.

Error of law

10. The Appellant is a citizen of Libya who claims to fear persecution due to his association with the former Gaddafi regime through his membership of the Green Revolutionary Guard and to otherwise fear serious harm due his tribe and his origins in Bani Walid. The First-tier Tribunal Judge found the Appellant's account of his involvement with the Green Revolutionary Guard not to be credible. This finding is not challenged.

11. The error of law asserted in the grounds of appeal and expanded upon by Mr Latimer relates solely to Article 15(c) of the Qualification Directive (paragraph 339C of the Immigration Rules). It is said that the Judge failed to give any or adequate consideration to whether the Appellant was at risk serious harm due to indiscriminate violence. The grounds assert that a substantial quantity of high quality evidence was submitted demonstrating a significant deterioration in the conditions in Libya since the Country Guidance case of AT and others (Article 15c; risk categories) Libya CG [2014] UKUT 318 (IAC).

12. In granting permission to appeal to the Upper Tribunal First-tier Tribunal Judge Cruthers was equivocal concluding that there was "just sufficient in the grounds to make a grant appropriate this stage". In my judgement even with this reservation Judge Cruthers was overly generous. The decision of the First-tier Tribunal shows very clearly that Article 15(c) was not only in the mind of Judge Thomas but also fully considered. Having made an adverse credibility finding in respect of the Appellant's account and his claimed reasons to fear persecution the Judge went on to separately consider his claim to fear harm because of his origins. The Judge's consideration in this respect begins at paragraph 60 and concludes at paragraph 76. The Judge properly, indeed comprehensively, self-directed to the appropriate authorities. She accepts that the Appellant comes from Bani Walid and is a member of the Warfalla tribe. She considers Dr George's report. Crucially the Judge accepts the Appellant's assertion that he lived in Tripoli for a number of years where he had a car business since 2003. The Judge accepts that the Appellant's family still live in Tripoli. In these circumstances the Judge was correct to identify Tripoli as the appropriate place of return and to find (at paragraph 76) that internal relocation was not in issue. Reciting Dr George's report at paragraphs 74 and 75 and noting that the Appellant's family live in Tripoli and have not faced any difficulties because of their links with Bani Walid and the Warfalla tribe it was inevitable that the judge would reach the conclusion that the Appellant did not face an Article 15(c) risk on return to Tripoli. Contrary to what is said in the grant of permission the Judge did clearly reach that conclusion (at paragraph 75).

13. There is in my judgment no error of law material to the Judge's decision to dismiss this appeal.

Conclusion

14. The decision of the First-tier Tribunal did not involve the making of an error of law for the reasons set out above.

15. This appeal is dismissed. The decision of the First-tier Tribunal stands.

Signed: Date: 15/08/2017

J F W Phillips
Deputy Judge of the Upper Tribunal