Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/09670/2015

THE IMMIGRATION ACTS

Heard at: Manchester
Decision Promulgated
On: 14 March 2017
On: 15 March 2017

Before

UPPER TRIBUNAL JUDGE PLIMMER

Between

KH
(ANONYMITY DIRECTION MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

For the appellant: Ms Brenang, Counsel
For the respondent: Mr Dinwycz, Senior Home Office Presenting Officer

DECISION AND REASONS

Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI2008/269) an Anonymity Order is made. Unless the Upper Tribunal or Court orders otherwise, no report of any proceedings or any form of publication thereof shall directly or indirectly identify the original Appellant. This prohibition applies to, amongst others, all parties.

1. The appellant is a male national of Libya, born in July 1997. He is therefore nearly 20. He came to the United Kingdom with his family in 2012, when he was 15. He sought international protection on the grounds of his imputed political opinion, and in the alternative, humanitarian protection.
2. The basis of the appellant’s claim for asylum, made on 17 December 2014, was that he had been a member of a militia in Zwara and would be at risk if returned to Libya because of the continuing conflict there.
3. The respondent and First-tier Tribunal both rejected the credibility of the appellant’s asylum account. The appellant challenged these factual findings in grounds of appeal. In a decision dated 3 October 2016 Upper Tribunal Judge granted permission, observing that the First-tier Tribunal arguably erred regarding Article 15(c), in light of FA (Libya) CG [2016] UKUT 00413 and that although the other grounds have less merit, all are arguable.
4. The grounds of appeal challenge the First-tier Tribunal’s credibility findings as well as the approach to the country background evidence. In her submissions before me, Ms Brenang only relied upon the second ground of appeal, relation to the First-tier Tribunal’s approach to the background evidence when assessing Article 15(c).
Credibility findings
5. Although Ms Brenang made no submissions regarding the credibility findings, I address the grounds of appeal for the avoidance of any doubt.
6. In my judgment, the grounds do no more than disagree with the factual findings. The First-tier Tribunal has provided detailed and cogent reasons for rejecting the appellant’s account at paragraph 10. The First-tier Tribunal was entitled to draw adverse inferences from the delay in the appellant relying upon his membership of a militia (para 10(ii) and (v)) and the inconsistencies within that evidence (para 10(ix). The First-tier Tribunal considered the explanation put forward and was entitled to regard this to be inconsistent and unreliable for the reasons set out at paragraph 10(iii) and (v). The First-tier Tribunal was clearly aware that when he made his claim for asylum, the appellant was a child.
7. The First-tier Tribunal has also carefully assessed the ID card (para 10(vi)) and photographs (para 10(vii-viii)) relied upon in detail. There is no error of law in its approach.
8. The grounds assert that the appellant does not have family in Libya. No attempt is made in the grounds to acknowledge and address the finding that the evidence regarding the appellant’s grandparents was inconsistent (para 10(xi)). The First-tier Tribunal rejected this evidence as incredible and found that the appellant’s grandparents are probably living in Tripoli (para 10(xix)).
9. There is no material error of law in the factual findings of the First-tier Tribunal.
Approach to Country Background Material
10. FA is dated 31 August 2016 and was promulgated on 7 September 2016. This means that the First-tier Tribunal did not have the benefit of this decision when the appeal was heard on 15 August or promulgated on 25 August. Ms Brenang accepted that she was unable to establish that the First-tier Tribunal committed an error of law in failing to apply FA, when that decision was not available to it. In the circumstances, Ms Brenang placed no reliance upon FA and turned to her only submission – the First-tier Tribunal’s assessment of Article 15(c) failed to take into account the background evidence before it.
11. I asked Ms Brenang to confirm with precision which background evidence was said to be before the First-tier Tribunal. She said that the only two reports she relied upon as being before the First-tier Tribunal were the FCO advice for Libya and the respondent’s Country Information and Guidance document: Libya: Security and Humanitarian Situation June 2016 (‘the CIG’).
12. Ms Brenang was unable to take me to the relevant FCO advice on Libya said to be before the First-tier Tribunal. The index to the bundle before the First-tier Tribunal indicates that it is at B71, but that page reference is to an entirely different report. Ms Brenang was unable to provide me with a copy of the relevant report and unable to establish that the report was before the First-tier Tribunal. Ms Brenang pointed out that the First-tier Tribunal referred to the submissions from the appellant’s representative that the FCO has indicated that all parts of Libya are unsafe at paragraph 10(xviii). This does not establish that the relevant report was before the First-tier Tribunal or that the First-tier Tribunal erred in law in its approach to the report.
13. I now turn to the CIG. Ms Brenang submitted that paragraphs 2.3.9-2.3.18 of the CIG support the proposition that the conditions in Libya had deteriorated since AT & Ors (Article 15(c) Risk Categories) Libya CG [2014] UKUT 318 (IAC). In that decision, the Upper 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. The CIG acknowledged that the situation had deteriorated since that decision was promulgated (2.3.16), as did the First-tier Tribunal at paragraph 10(xvi) and (xx). The First-tier Tribunal expressly considered the relevant statistics for Tripoli, where the appellant is to be returned. On the very limited information available to the First-tier Tribunal (the CIG), it was entitled to conclude that the situation in the appellant’s home area of Tripoli had not deteriorated to such an extent that the appellant would, solely by being present there, face a real risk in breach of Article 15(c). That analysis is consistent with 2.3.17 of the CIG. Ms Brenang did not take me to any other part of the CIG save for 2.3.9-2.3.18. I note that there are extracts of the CIG which provide cogent supporting evidence for the assessment that there has been a marked deterioration in the humanitarian position in Libya (see for example 7.1.2 and 9.1.11). However, the First-tier Tribunal was entitled to find on the material available that the situation in Tripoli for this appellant did not breach Article 15(c), for the reasons that have been set out in the decision.
14. Ms Brenang also invited me to find that the First-tier Tribunal failed to consider the appellant’s vulnerabilities as placing him at enhanced risk. This submission is without any merit. The First-tier Tribunal addressed the appellant’s membership of a minority tribe comprehensively at paragraph 10(xvii). The First-tier Tribunal was entitled to find that the appellant is now a male adult and in any event, would have the support of family members upon return to Tripoli for the reasons set out at paragraph 10(xix).
Final points
15. It may well be that the appellant’s circumstances and those of his immediate family members require reconsideration in light of the evidence summarised in FA, and a fresh protection claim may be appropriate, but that is not a matter for me.
16. The First-tier Tribunal decision does not contain a material error of law and the appeal is dismissed.

Decision
17. The decision of the First-tier Tribunal does not contain an error of law and is not set aside.

Upper Tribunal Judge Plimmer
15 March 2017