Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/09935/2015

THE IMMIGRATION ACTS

Heard at Bennett House, Stoke-on-Trent
Decision & Reasons Promulgated
On 2nd August 2016
On 2nd August 2016

Before

UPPER TRIBUNAL JUDGE MARTIN

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant

and

MRS THURAYA ALI AHMAD KENAN
(ANONYMITY DIRECTION NOT MADE)

Respondent

Representation:

For the Appellant: Mr G Harrison (Senior Home Office Presenting Officer)
For the Respondent: Mr Medley-Daley (Broudie Jackson & Canter, Solicitors)

DECISION AND REASONS

1. This is an application to the Upper Tribunal by the Secretary of State against a judgment of the First-tier Tribunal, Judge Ransley, promulgated on 12th November 2015 in which she dismissed the Appellant's appeal against the Secretary of State's decision to refuse her asylum claim but allowed the appeal against the decision to refuse her humanitarian protection.
2. For the purposes of continuity and clarity I will continue to refer to Mrs Kenan as the Appellant and the Secretary of State as the Respondent in this decision.
3. The Appellant is a national of Libya born on 22nd June 1974. She claimed asylum on the basis that she had married outside her own tribe and would be at risk, if returned to Libya, due to fighting between her own and her husband's tribe. Secondly, she claimed that she had separated from her husband in 2014 in the UK and feared return to Libya as a single female with four dependent children. It was also her case that her home area, Sabratha, has become a training ground for ISIS militants and she feared the associated risk to herself and the children from violence and forced recruitment.
4. The First-tier Tribunal Judge concluded that the Appellant had fabricated her claim that her husband belonged to the Hetheri-Blazza tribe in order to support her claim. She found that her claim on the ground of imputed political opinion was not well founded. In terms of her claim on the basis of being a member of a particular social group as a lone woman with four dependent children, the Judge was not satisfied that the Appellant had separated her from her husband as claimed and thus would not be returning to Libya as a single mother with four dependent children. She found that there was no truth in the Appellant's asylum claim. However when looking at the question of Humanitarian Protection she correctly identified, at paragraph 45, that she was considering the case on the basis of a return to Sabratha via Tripoli. She was provided with country information in relation to that area which indicated that Sabratha contains an ISIS training base and concluded at paragraph 50, on the basis of the country materials, that returning her to Libya would expose her and the children to a real risk of indiscriminate violence due to fighting between the militias and the risks posed by ISIS. She found that the Appellant had discharged the burden of proof and was entitled to Humanitarian Protection.
5. Having so found the Judge then went on to consider Article 8 and in considering the best interests of the four children concerned, found that their best interests would be seriously prejudiced if they were to be returned to their home area of Sabratha where they would face a real risk of violence from ISIS. She therefore also allowed the appeal on Article 8 grounds.
6. The Secretary of State sought permission to appeal which was granted by Judge Andrew who thought it arguable that the Judge had not identified with any clarity why she was departing from the country guidance case of AT & Ors (article 15 C risk categories) Libya [2014] UK UTC 0318 (IAC).
7. Before me Mr Harrison simply relied upon the grounds. The grounds also argued that the Judge gave inadequate reasons for allowing the appeal in relation to the best interests of the children and Article 8.
8. Having read the Decision and Reasons with care I find it does not contain a material error of law. The Judge was clearly aware of the country guidance case and referred to it specifically at paragraph 21. She carefully assessed the Appellant's asylum claim finding the claim wholly without credibility.
9. That the Appellant came from Sabratha was not in dispute. In terms of humanitarian protection she was provided with background country evidence which post-dated the country guidance case. The country guidance case does not refer to ISIS and that situation has changed significantly. The Judge clearly explained her reasoning, namely that ISIS was active in the Appellant's hometown and that would present a risk for her and her four children. The risk from ISIS does not feature in the country guidance and for that reason alone the judge was entitled to consider it.
10. Internal Relocation did not feature in the Letter of Refusal and the Judge's refusal to consider it when it was raised at the hearing did not form one of the grounds of appeal to the Upper Tribunal. There has been no application to amend the grounds.
11. Mr Harrison did not seek to persuade me that the presence of ISIS did not represent a real risk of indiscriminate violence.
12. The decision and reasons of the First-tier Tribunal did not contain material error of law and is upheld.

Notice of Decision

The Secretary of State's appeal to the Upper Tribunal is dismissed.

There has been no application for an anonymity order and I do not make one

Signed Date 2nd August 2016

Upper Tribunal Judge Martin