Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA099282015

THE IMMIGRATION ACTS

Heard at Field House
Decision Promulgated
On 18 May 2016
On 10 June 2016

Before

UPPER TRIBUNAL JUDGE CANAVAN

Between

A H
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

(ANONYMITY DIRECTION MADE)

Anonymity
Rule 14: The Tribunal Procedure (Upper Tribunal) Rules 2008
Anonymity was granted at an earlier stage of the proceedings because the case involves protection issues. I find that it is appropriate to continue the order. 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.

Representation:

For the Appellant: Ms S. Iqbal, Counsel instructed by Lighthouse Solicitors
For the Respondent: Mr N. Bramble, Senior Home Office Presenting Officer

DECISION AND REASONS

Background

1. The appellant appealed against the respondent's decision to refuse his protection claim. First-tier Tribunal Judge Miles dismissed the appeal in a decision promulgated on 01 December 2015.

2. In a decision promulgated on 03 May 2016 Upper Tribunal Judge Storey concluded that the First-tier Tribunal decision involved the making of an error on a point of law and set aside the decision. Upper Tribunal Judge Storey noted that there was no challenge to the positive credibility findings made by the First-tier Tribunal but found that the judge failed to carry out a sufficiently rigorous assessment of the relevant factors and evidence that were material to a proper assessment of risk on return.

3. At the hearing the parties agreed that the focus of the resumed appeal is on whether the appellant would be at risk on return. The First-tier Tribunal's positive credibility findings in relation to the appellant's account of past events are preserved.

4. The appellant is a Libyan national. He completed his medical training and began work in Libya as a doctor in 2009. The appellant travelled to the UK in August 2014 with entry clearance as a student visitor. He wanted to improve his English with a view to doing a Master's degree and PhD. While he was in the UK the hospital where he worked called him back to Libya because they were in need of medical staff. He returned to Libya in September 2014 where he worked in a field hospital as well as the hospital in Bani Waleed (his home area). In December 2014 he was travelling to a health centre when he was stopped by a group of armed men wearing balaclavas. He believes that they were Islamist militants because they wore long beards. He had to show his ID. When it became apparent that he was a doctor the men accused him of treating Qadhafi supporters.

5. The appellant was detained in a house at an unknown location in Misrata for a period of three days. During that time he was questioned and beaten. On the third day a man came to speak to him and took him out of the house. With his assistance he travelled to the airport in Misrata and made arrangement to fly back to the UK via Turkey. When he arrived in the UK he contacted his father who told him that he paid a ransom of around 100,000 Dinars for his release. He took advice and claimed asylum shortly after arrival in the UK.

Decision and reasons

6. The preserved findings were confined to the First-tier Tribunal's positive credibility findings regarding past events, but the conclusions that the judge drew from those facts have been set aside. I find that it is necessary to depart from the First-tier Tribunal's conclusion that the appellant's past ill-treatment was not sufficiently severe as to amount to persecution. The judge's assessment focused on the extent of the physical injuries the appellant suffered. Based on this he concluded that he was not "very badly ill-treated". However, a proper assessment of the nature of the appellant's past ill-treatment is not confined to the extent of his physical injuries. The appellant was targeted as a medic, kidnapped and held in illegal detention for a number of days. He was threatened and physically ill-treated albeit not "very badly".

7. In the context of an internal armed conflict, such as the one currently taking place between various factions in Libya, serious violations of common Article 3 of the Geneva Conventions include the taking of hostages and targeting of medical personnel. Such actions come within the definition of War Crimes outlined in Article 8 of the Rome Statute of the International Criminal Court. When the appellant's past ill-treatment is considered in the proper context I am satisfied that the combination of him being targeted as a medic, kidnapped, illegally detained and physically ill-treated was sufficiently severe to amount to persecution within the meaning of the Refugee Convention. Paragraph 339K of the immigration rules states:

339K. The fact that a person has already been subject to persecution or serious harm, or to direct threats of such persecution or such harm, will be regarded as a serious indication of the person's well-founded fear of persecution or real risk of suffering serious harm, unless there are good reasons to consider that such persecution or serious harm will not be repeated.

8. AT and Others (Article 15c; risk categories) Libya CG [2014] UKUT 00318 is the most recent country guidance. Upper Tribunal Judge Storey made clear that the risk categories identified by the tribunal in that case were not exhaustive. He also pointed out that, in confining his assessment to the risk categories in AT and Others, the First-tier Tribunal judge failed to take into account the fact that there had been "considerable changes" in the situation in Libya since AT and Others was heard in November 2013. While the First-tier Tribunal was correct to note that the appellant does not come within any of the specific risk categories identified in that case no consideration was given to whether the appellant's particular circumstances might give rise to a real risk of serious harm in light of the current evidence.

9. In assessing whether there is a real risk on return I have taken into account the background evidence before the tribunal. The evidence includes a UN Report on the Human Rights Situation in Libya (16 November 2015), the UNHCR Position on Returns to Libya (October 2015), the US State Department Report on Libya (13 April 2016), a Foreign and Commonwealth Office update on Libya (December 2015), an Amnesty International report on civilian abductions in Libya (August 2015), a Report of the Secretary-General on the United Nations Support Mission in Libya (25 February 2016) and a CNN news article reporting the kidnap of 20 medical workers by ISIS in Libya (17 March 2015). The reports are broadly consistent as to the overall political and security situation in Libya at the current time.

10. The UN Report on the Human Rights Situation in Libya provides an accurate summary of the situation as outlined in the background evidence:

"Libya continues to be embroiled in deadly violence and multiple armed conflicts, non-international in character, affecting several regions, and contributing to a general breakdown of law and order. All parties to the conflicts continue to commit violations of international human rights and humanitarian law, and abuses of human rights, including indiscriminate and disproportionate attacks; summary executions and other unlawful killings; arbitrary deprivations of liberty; and torture and other cruel, inhuman or degrading treatment (ill-treatment).

During the reporting period, the violence in Libya has led to hundreds of deaths and mass displacement, with an ongoing humanitarian crisis in many areas. Refugees, asylum-seekers and migrants were increasingly vulnerable to abuses. Human rights defenders, humanitarian workers and media professionals also faced violent attacks and intimidation. Thousands of individuals were held in prisons and other detention centres under the official oversight of the Ministries of Justice, Defense and Interior as well as in facilities run directly by armed groups, amid frequent reports of torture or other ill-treatment. The justice system, where it was functioning, failed to ensure accountability, while abuses by armed groups continue to take place with impunity." [pg.12 AB1]

11. Ms Iqbal was unable to refer me to specific evidence to support her statement that the UN includes medical personnel in its definition of "human rights defenders". However, I find that, in general terms, it is reasonable to conclude that medical personnel are likely to be perceived as a form of human rights defenders or humanitarian workers. There are a number of references to medical personnel and hospitals being targeted by factions on all sides of the conflict. The fact that medical personnel are amongst those who are deliberately targeted is borne out by the appellant's own experience and the background evidence.

12. The appellant has produced several pieces of evidence from Libya to support his claim that he and his family may have become the specific target of armed groups. A letter purporting to be from the Zawia Military Council dated 03 September 2015 threatened the appellant's father if he didn't reveal his whereabouts after the appellant's "sudden disappearance from our detention centre". The letter could have been written on a standard word processor. The fact that he is described as having disappeared from detention doesn't, on the face of it, square with the appellant's claim that his father paid a ransom for his release. However, I do not exclude the possibility that money may have been paid to a particular person who assisted the appellant to escape and that other members of the group might not have been aware of the bribe.

13. A medical report dated 07 September 2015 sets out, in English, the nature of gunshot wounds suffered by the appellant's brother. Given that there is an internal armed conflict in the country there is no reason to doubt the fact that his brother Ahmed may have been shot. Taken alone this evidence does not necessarily demonstrate that the appellant's family was specifically targeted.

14. The appellant also produced a handwritten report described as a "Prosecutor's report". The translation contains an error because it refers to an incident on "07/07/16". The exact date of the incident his father reported to the prosecutor in Bani Waleed is therefore unclear. The report was made on 09 September 2015. The report states that four young men carrying Kalashnikov rifles came to his house and shot his son Ahmed before trying to set fire to the house. He reported that they were wearing masks. He thought that they belonged to an Islamic group because they were using religious language similar to the people who attacked his farm in Tripoli. He was asked who he accused of the crime. In answer he said that the only people he could think to accuse were the "Islamic fanatics who are after my son the doctor Ali".

15. If the medical and prosecutor's report are read together I find that it is reasonable to infer that his father was reporting the same incident in which Ahmed was shot on 07 September 2015. Although there are some question marks over the letter purporting to make a threat to the appellant's father it is dated only a few days before the shooting. To that extent the three pieces of evidence appear to hang together to support the appellant's claim that his brother Ahmed was shot in a separate incident after he left the country. The appellant was not called to give evidence so the reliability of the documents have not been tested in cross-examination. While there is nothing on the face of the evidence that is inconsistent with the background evidence, or the appellant's account of past events, I find that it simply doesn't take the issue of risk on return much further. It seems quite clear that his father didn't know who the men were who attacked the house. He could only guess that they might have been connected to the previous incident when the appellant was taken hostage.

16. I am satisfied that the combination of (i) the appellant's past experience of being targeted as a doctor; (ii) the background evidence showing that medical personnel are being targeted by all sides in the conflict; and (iii) the other evidence produced by the appellant (whatever its weaknesses), is sufficient to show that there are no good reasons to suppose that the appellant would not be a risk of similar ill-treatment if returned to Libya. The appellant does not have to show with any certainty that he is at risk. I am satisfied that the evidence before me shows that there are serious grounds for believing that he is likely to be at risk as a doctor in his home area at the current time.

17. Mr Bramble argued that the appellant would be able to relocate to Tripoli. I bear in mind that the tribunal in AT and Others concluded that, in certain cases, internal relocation might be available. That assessment was made on the evidence as it stood in November 2013. In this case I find that the current evidence indicates that attacks against medical and other humanitarian workers are being carried out across the country. The evidence does not identify a safe area where medical personnel might be able to operate without fear of attack. Although major fighting in most parts of Tripoli is said to have ceased the background evidence describes the situation as extremely fragile. Clashes continue to occur in the suburbs of Tripoli. There are reports of abductions in the capital. The overall situation in Libya remains highly volatile.

18. In assessing whether internal relocation would be available to the appellant I also take into account the UNHCR position on returns to Libya, which states:

"Given the volatility of the situation, the fragmentation of control and the plethora of armed groups, UNHCR considers that, in the current circumstances, the relevance and reasonableness criteria for an internal flight or relocation alternative are unlikely to be met." [pg.58 AB1]

19. After having considered all the evidence in the round I conclude that, as a doctor, there continues to be a reasonable degree of likelihood that the appellant has a well-founded fear of persecution for reasons of his attributed political opinion and that there is no safe area that he would be able to relocate to in Libya.

DECISION

I re-make the decision and ALLOW the appeal

Signed Date 09 June 2016

Upper Tribunal Judge Canavan