Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/10047/2015

THE IMMIGRATION ACTS

Heard at: Field House
Decision & Reasons Promulgated
On 20th March 2017
On 20th April 2017

Before

UPPER TRIBUNAL JUDGE BRUCE

Between

SMB
(anonymity direction made)
Appellant
And

The Secretary of State for the Home Department
Respondent

For the Appellant: Ms Nizami, Counsel instructed by Good Advice UK
For the Respondent: Mr Clarke, Senior Home Office Presenting Officer

DETERMINATION AND REASONS

1. The Appellant is a national of Libya born in 1986. He appeals with permission1 the decision of the First-tier Tribunal (Judge Row) dated 8th August 2016 to dismiss his appeal against a decision to refuse to grant protection.

Anonymity Order

2. This case concerns a claim for international protection. Having had regard to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 and the Presidential Guidance Note No 1 of 2013: Anonymity Orders I therefore consider it appropriate to make an order in the following terms:

“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 to, amongst others, both the Appellant and the Respondent. Failure to comply with this direction could lead to contempt of court proceedings”

Background and Decision of the First-tier Tribunal

3. The Appellant has lived in the United Kingdom on and off since September 2000. He originally arrived with valid leave to enter as the dependent of a diplomat and most recently, on the 22nd March 2011, as a visitor. He claimed asylum shortly thereafter.

4. The basis of the Appellant’s claim for protection was that his father had been a high-ranking civil servant under the Gaddafi regime and that he would, in those tumultuous days of the first civil war, be at risk of harm from both sides. If he returned to Libya he may be compelled to be a ‘human shield’ for the regime, or he may be targeted by the rebels. Asylum was refused but the Respondent decided to grant Humanitarian Protection (HP).

5. The Appellant’s HP expired on the 31st July 2012. Shortly before that date the Appellant applied for further leave to remain as a refugee. The refusal decision is dated 30th June 2015. The Respondent accepted that the Appellant’s father was a diplomat employed under the Gaddafi regime but not that the Appellant would face any risk as a result.

6. The matter came before the First-tier Tribunal on the 28th July 2016. The determination records the Appellant’s evidence as being that his father was “not a high-ranking official” within the regime. He “operated and installed encryption machines” and carried out administrative duties. The Tribunal found there to be no evidence of any harm coming to family members of such persons and dismissed the appeal on asylum grounds. The Appellant had, in the alternative, relied on Article 15 (c) of the Qualification Directive. The Tribunal followed the findings in the country guidance case of AT and Others (Article 15(c) – Risk Categories) Libya CG [2014] UKUT 00318 (IAC) and the appeal was also dismissed under that head. The Appellant had also relied upon Article 8 ECHR to submit that his removal from the United Kingdom would be a disproportionate interference with his private life. He submitted that the security situation in Libya presented him with ‘very significant obstacles’ to his integration into society there and that his appeal should therefore be allowed with reference to paragraph 276ADE(1)(vi). In respect of Article 8 ‘outside of the Rules’ he relied in particular on the fact that as of the date of hearing he was three days short of having had a grant of HP for five years (the original grant having been extended by virtue of the Appellant’s in-time application to extend and by operation of Section 3C of the Immigration Act 1971). He was therefore eligible for a grant of Indefinite Leave to Remain. That argument too was rejected.

The Appeal

7. The Appellant was granted permission to appeal to the Upper Tribunal on the grounds that the First-tier Tribunal materially erred in law in the following respects:

i) Error of Fact/Misrepresentation of Evidence

a) The Tribunal characterises the Appellant’s evidence as being that his father was not a high ranking official within the Gaddafi regime. To the contrary his consistent evidence has been that he was, one of his many roles being within the despised Communication and Information Security department, that is to say the branch of the security services charged with spying on the Libyan people.

It is submitted that the error amounted to a material misdirection in light of the guidance in AT and Ors that persons with connections to high ranking members of the Gaddafi regime may be at risk.

b) In its conclusions on Article 8 the Tribunal appears to have placed weight on the fact that his family continues to own property in Libya [at 39]. This failed to take into account the accepted evidence that the property in question had been seized by militias.

ii) Failure to give due weight to relevant new evidence/ making irrational findings when considering whether to depart from the conclusions in AT and Ors in the context of Article 15(c) of the Qualification Directive2

The Appellant had produced new evidence which post-dated the decision in AT and Others. He had submitted that this evidence showed the security situation in Libya to have deteriorated to the point that Article 15(c) is engaged. It is submitted that it was irrational for the Tribunal to conclude as it does at paragraph 35, that “there is nothing” in the evidence to warrant departure from AT.

iii) Failing to take relevant matters into account

In its analysis of paragraph 276ADE and Article 8 the Tribunal has failed to take the security issues (raised and considered in the context of the protection appeal) into account. These were plainly material to the question of significant obstacles and proportionality.

8. The matter came before me as an ‘error of law’ hearing on the 7th November 2016. The Respondent was that day represented by Senior Presenting Officer Mr Singh. In a written decision sent to the parties on the 19th January 2017 I set the determination of the First-tier Tribunal aside to a limited extent. The findings on asylum were preserved; those on humanitarian protection and Article 8 ECHR set aside to be remade. My reasons are set out below under the heading ‘error of law’. The hearing resumed on the 20th March 2017. I heard oral evidence from the Appellant and submissions from the parties. At the close of the hearing I indicated that I would allow the appeal. My reasons for that decision can be found in the remainder of this determination.

‘Error of Law’

Humanitarian Protection

9. In respect of Article 15(c) the grounds of appeal make detailed reference to the country background material that had been produced at the appeal, which included evidence from the FCO (July 2016), Amnesty International (2016) the UNHCHR (February 2016), the USSD (April 2016) and the UNCHR (October 2015). The First-tier Tribunal determination does not address any of this material, simply noting at paragraph 35 that the security situation at the time of AT and Others was already “pretty grim”. Although it was accepted that “parts of Libya will be extremely unpleasant” the Tribunal was not prepared to find Article 15(c) engaged.

10. I am satisfied that it was an error of law to dismiss the Appellant’s carefully presented argument in this way. I need not say any more since Mr Singh, who represented the Respondent at the ‘error of law’ hearing, agreed. So scant is the reasoning in the determination this ground would have been made out even if the Upper Tribunal had not subsequently indicated that AT and Others was no longer to be followed: FA (Libya: art 15(c)) Libya CG [2016] UKUT 00413 (IAC). The decision in respect of Article 15(c) is set aside to be remade.

Asylum

11. The grounds are simple. The Appellant contends that the Tribunal has mischaracterised his evidence about the extent to which his father was associated with the Gaddafi regime. On the one hand, it is accepted that this gentleman carried a diplomatic passport, operated an encryption machine and that he was a “senior diplomat/intelligence officer” [at paras. 5 and 24]. I say it is accepted because that was the Appellant’s evidence, expressly endorsed by the Tribunal: “He gave his evidence in a straightforward manner. I saw him, I heard him, and I believed what he had to say” [at 26]. On the other hand, the Tribunal finds that he was neither ambassador nor a high-ranking official [24]. These latter findings lead the Tribunal to conclude that he was not of such a profile so as to attract adverse attention should he be returned to Libya. The Tribunal noted that there was in the country background material before it only one example of a ‘family member’ experiencing problems because a relative had been part of the regime. That was the daughter of Abdullah Al Sennusi, brother-in-law to Gaddafi and head of the security services. She was, in the aftermath of the revolution, kidnapped and held hostage by forces loyal to the new government.

12. The relevant country guidance at the time was AT and Others. The headnote reads:
(3) Having regard to the generally hostile attitude of society to the former regime, the following are, in general, at real risk of persecution or Article 3 ill-treatment on return to Libya: -
(a) former high ranking officials within the intelligence services of that regime;
(b) others with an association at senior level with that regime.
(4) As a general matter, the closer an individual was to the centre of power within the former regime, the more likely that the individual will be able to establish a risk of persecution or Article 3 ill-treatment on return.
(5) The majority of the population of Libya either worked for, had some association with, or has a member of the family who worked for or had an association with the Qadhafi regime. Such employment or association alone is not sufficient to establish a risk of persecution or Article 3 ill-treatment on return.
(6) In general, family members of those described in (3) and (4) above are not at risk of persecution or a breach of their protected rights on return. It is possible, however, that an individual will be able to establish such a risk but this will need to be demonstrated by specific evidence relating to the individual’s circumstances. Mere assertion of risk by association as a family member would not be sufficient without fact-specific evidence of the risk to that particular family member.

13. The Appellant therefore had to establish two things. First he had to show that his father was in fact a “high ranking official” as described at (3), and that there was specific evidence showing him to be at risk for that reason: see (6). I read that latter requirement to mean that there must have been, for instance, an actual threat against family members of the individual concerned. It is apparent from the witness statement of the Appellant dated 12th May 2016 that he makes no claim to that effect. He expresses a fear that the militias who now run parts of Libya have gained access to the records held by the former regime and that as such they will know who his father was, and arrest him as a result. This is, in reality, exactly the type of “mere assertion” deprecated by the Tribunal in AT. Whilst it is perhaps understandable that the Appellant has a subjective fear about his association with his father, there is no specific evidence to demonstrate such a fear to be well-founded. As the First-tier Tribunal points out, the instances of family members being targeted are few and far between. I do not find there to be any material error in the Tribunal’s approach to this question.

Article 8

14. The Tribunal was tasked first with determining whether the Appellant met the requirements of paragraph 276ADE(1)(vi), and second whether his removal would be disproportionate with reference to Article 8 ECHR. I agree that in making those assessments, the Tribunal should have weighed in the fact that the situation in Libya included, by the Tribunal’s own estimation: “the reckless use by militias of machine guns, mortars, and other weapons killing and maiming bystanders, clashes between armed groups” and armed men firing “indiscriminately”. Those findings, made in the context of the protection claim, nowhere feature in the analysis of either ‘significant obstacles’ or ‘proportionality’. I am satisfied that this was an error in approach such that the decision on Article 8 needs to be remade.

Re-Making the Decision

15. At the hearing I had an opportunity to hear oral evidence from the Appellant. The First-tier Tribunal had already found him to be a credible witness and that is an assessment I can wholeheartedly endorse. He gave his evidence in a straightforward and fluent manner, he provided detail when asked and there was no indication that he sought to exaggerate any elements of his claim. There was a good deal of country background evidence placed before me. The Appellant’s bundle alone ran to 408 pages; Mr Clarke was content, mercifully, to rely upon the publications of the Respondent’s Country Information Unit. Much of that evidence was not in dispute. The parties were in agreement, for instance, that there is an internal armed conflict in Libya and that civilians have died as a result of indiscriminate firing and bombing. Mr Clarke took no issue with the evidence that all parties to this war have committed human rights abuses. The dispute was the extent to which that indiscriminate violence might impact upon the Appellant should he be returned to Libya. Given that there is at least some agreement I do not propose to summarise herein all of the evidence that I have read. I shall deal first with the matter of humanitarian protection, and then on a discrete basis, Article 8.

Humanitarian Protection

16. Article 2 (e) of the Qualification Directive defines persons who are eligible for subsidiary protection:

(e) “person eligible for subsidiary protection” means a third country national or a stateless person who does not qualify as a refugee but in respect of whom substantial grounds have been shown for believing that the person concerned, if returned to his or her country of origin, or in the case of a stateless person, to his or her country of former habitual residence, would face a real risk of suffering serious harm as defined in Article 15, and to whom Article 17(1) and (2) do not apply, and is unable, or, owing to such risk, unwilling to avail himself or herself of the protection of that country;

17. ‘Serious Harm’ is defined at Article 15, the relevant sub-section for the purpose of this appeal being (c):
Serious harm consists of:
(a) death penalty or execution; or
(b) torture or inhuman or degrading treatment or punishment of an applicant in the country of origin; or
(c) serious and individual threat to a civilian's life or person by reason of indiscriminate violence in situations of international or internal armed conflict.
18. Working backwards, there are therefore three limbs to this test. There must be

a) an internal armed conflict;
b) indiscriminate violence; and there must as a result be
c) a serious and individual threat to the civilian.

The Conflict

19. In Diakité v Commissaire general aux refugies [2014] WLR(D) 37 the CJEU dispensed with the need to conduct a detailed legal analysis of the conflict itself [at 35]:
'[…] on a proper construction of Article 15(c) of Directive 2004/83, […] an internal armed conflict exists, for the purposes of applying that provision, if a State's armed forces confront one or more armed groups or if two or more armed groups confront each other. It is not necessary for that conflict to be categorised as 'armed conflict not of an international character' under international humanitarian law; nor is it necessary to carry out, in addition to an appraisal of the level of violence present in the territory concerned, a separate assessment of the intensity of the armed confrontations, the level of organisation of the armed forces involved or the duration of the conflict.'
20. This was a not-insignificant rejection of the international humanitarian law paradigm postulated in, for instance, KH (Article 15(c) Qualification Directive) Iraq CG [2008] UKAIT 00023. The war need not involve breaches of international law, nor do the parties need to adopt a formal military identity. It is enough that there are one or more of them confronting each other in the territory: see also paras 14-18 of QD (Iraq) v Secretary of State for the Home Department [2009] EWCA Civ 620.

21. As I say, the Respondent takes no issue with the fact that this is the situation in Libya. It is useful however, for the purpose of this decision, to set out some background to who those groups at present are. I have here been greatly assisted by the ‘Country Policy and Information’ Note produced by the Respondent dated January 2017 Libya: Security and Humanitarian Situation as well as the more recent Libya: Actual or perceived supporters of former President Gaddafi (Version 2.0 published on the 15th March 2017). Both draw heavily on a report published in May 2016 by the European Council on Foreign Relations (A Quick Guide to Libya’s Main Players) to give a helpful synopsis of events so far.

22. Gaddafi was overthrown in 2011. The General National Congress that was formed in the aftermath of the revolution soon fractured along Islamist/secular lines and by 2014 the country was at war. A multitude of factions competed for power in various locations but, for a time at least, did so largely under the umbrellas of one of the two alternative governments. In the east of the country the House of Representatives/ Council of Deputies was backed by the Libyan National Army, led by General Haftar. This was, and remains, based in Tobruk. It receives support from Egypt and the UAE, and until fairly recently, from western governments. It is largely secular and purports to be pro-democratic. On the opposing side was the National Salvation Government, sometimes referred to as the General National Council. This is a coalition of Islamists. This was backed by the ‘Libya Dawn’ and Misratan militias and was believed to receive support from inter alia Qatar, Turkey and Sudan.

23. In December 2015 some of the main players were brought together to sign the ‘Libyan Political Agreement’. This led to the establishment of the Presidential Council /Government of National Accord (PC/GNA) in Tripoli. Its name notwithstanding, this led to further splits and conflict, with the result that there are now three competing ‘governments’. Some of the (Islamist) GNC agreed to support this nascent political institution, which received the unanimous backing of the United Nations Security Council. Others refused to do so and maintain a separate ‘government’ (Government of National Salvation), also based in Tripoli. On the opposing side General Haftar and the House of Representatives (still based in Tobruk and al-Bayda in the east) have refused to cooperate with the PC/GNA, and are calling for fresh elections to be held next year. In addition to these three main groupings there is evidence that the rump of the Gaddafi regime is seeking to exert influence again. This somewhat superficial analysis belies the reality on the ground, where it is estimated that up to 1700 different militias are in operation. The latest CPIN [at 5.1.2] cites a September 2016 BBC report on this “myriad of armed militias” who were “united in their hatred for Gaddafi, but nothing more”:

“There was no single group in charge of the rebellion. Militias were based in different cities, fighting their own battles…

They are also ideologically divided - some of them are militant or moderate Islamists, others are secessionists or monarchists and yet others are liberals. Furthermore, the militias are split along regional, ethnic and local lines, making it a combustible mix. And after more than four decades of authoritarian rule, they had little understanding of democracy. So, they were unable to forge compromises and build a new state based on the rule of law”.

24. It is against that political backdrop that the security situation in Libya must be assessed.

Indiscriminate Violence

25. The violence can be said to be indiscriminate where it could affect people in that country regardless of their circumstances. In HM and others (Article 15(c)) (Iraq) CG v. the Secretary of State for the Home Department [2012] UKUT 00409 (IAC) the Tribunal held that attacks could be properly regarded as indiscriminate:

“in the sense that, albeit they may have specific or general targets, they inevitably expose the ordinary civilian who happens to be at the scene to what has been described in argument as collateral damage. The means adopted may be bombs, which can affect others besides the target, or shootings, which produce a lesser but nonetheless real risk of collateral damage”

26. The March 2017 CPIN cites Human Rights Watch to give this summary of the current situation [at 4.3.5]:

‘The United Nations-backed, internationally recognized Government of National Accord (GNA) struggled in 2016 to assert itself in the capital Tripoli, as two authorities— one also based in Tripoli and another in eastern Libya—continued to compete for legitimacy and control over resources and infrastructure.

‘Forces aligned with all governments and dozens of militias continued to clash, exacerbating a humanitarian crisis with close to half-a-million internally displaced people...

‘Militias and armed forces affiliated with the two governments engaged in arbitrary detentions, torture, unlawful killings, indiscriminate attacks, abductions, and forcible disappearances. Criminal gangs and militias abducted politicians, journalists, and civilians—including children—for political and monetary gain.

‘The domestic criminal justice system remained dysfunctional, offering no prospects for accountability, while the International Criminal Court, despite having jurisdiction over Libya provided by the UN Security Council, failed to open any new investigation into ongoing crimes.’

27. The January 2017 CPIN [at 8.1.2] cites similar findings by the UN Deputy High Commissioner for Human Rights, Ms Kate Gilmore, who addressed the Human Rights Council on the 27th September 2016:

‘Warring factions continue to show little regard for civilians –failing to take steps needed to avoid or minimise civilian casualties and protect civilian objects from damage...

‘In residential areas across Libya, heavy weaponry has been deployed without ensuring sufficient precautions and this is true of all parties...

‘Armed groups act with complete impunity, continuing to abduct, torture and kill civilians on the basis of their perceived or actual family links, origin or political affiliation. In July, for example, 14 bodies were discovered dumped at a Benghazi rubbish tip. It was clear that the victims, some of whom had been abducted by armed groups earlier in the month, had been tortured and then killed. In June, 12 prisoners were released from Tripoli’s Al-Ruwaimi prison, in compliance with a court order. But, just 24 hours later, their families confronted the grim task of identifying their bodies. The 12 had been beaten, shot and killed. Those responsible remain unidentified in both instances...

‘Human rights defenders and media professionals have also faced abductions and attacks. Thanks to repeated intimidation and attack against their staff, the National Council for Civil Liberties and Human Rights in Tripoli remains effectively shut down. In March, prominent human rights advocate Abdul Basit Abu-Dahab, was killed in Darna when a bomb placed in his vehicle exploded. Many other human rights defenders have fled the country, curtailed their activities or gone into hiding...

‘Civilian objects are not spared. In 2016, homes have been attacked, looted and destroyed, including in Benghazi, Zawiya and most recently in Misallata. From May to July, the Benghazi Medical Centre was shelled on four separate
occasions. In June, a car bomb exploded at the entrance of the Al-Jala’ Hospital killing five people, and injuring 13 others, including two children.’

28. The assessment of the United Nations Support Mission in Libya (UNSMIL) is set out at paragraphs 9.1.1-9.1.2

‘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).’

...

‘Across Libya, warring factions showed little regard for avoiding or minimizing loss of civilian life, injury to civilians and damage to civilian objects. They have used imprecise weaponry in densely-populated residential areas in what often amounted to indiscriminate attacks, leading to civilian fatalities and damage to civilian infrastructure. UNSMIL has also received reports that airstrikes by Operation Dignity, Libya Dawn and in one instance the Egyptian air-force led to civilian casualties and / or damage to civilian infrastructure...

‘UNSMIL also documented a number of instances where the neutrality of hospitals and other medical facilities was violated, while medical personnel were caught-up in the violence and subjected to physical assaults, abductions and harassment...

‘Bomb attacks, including suicide attacks, have claimed the lives of dozens, including civilians. In one such incident, at least 42 people, including children, were killed on 20 February 2015 in bomb attacks in the town of Qubbah, in eastern Libya. Most victims were queuing at the local petrol station, when the attacks took place. Responsibility for the bombings was claimed by a Libyan armed group pledging allegiance to ISIL, allegedly in retaliation for the airstrikes on Derna on 16 February’.

29. On the basis of this evidence – consistent with all of the material before me – I find that the conflict in Libya involves the use of “indiscriminate” violence.

Serious and Individual Threat to the Person

30. As I note above the real matter in issue in this appeal is the nexus between the indiscriminate violence and the threat to the individual. In Elgafaji v Straatsscretaris van Justitie [2009] 1 WLR 2100 the CJEU found a distinction between the level of harm necessary to establish a case under Article 15(a) and (b) on the one hand, where a real risk of specific harm must be established, and (c), where applicant fears a “more general risk of harm”:

"43. Having regard to all of the foregoing considerations, the answer to the questions referred is that Article 15(c) of the Directive, in conjunction with Article 2(e) of the Directive, must be interpreted as meaning that: the existence of a serious and individual threat to the life or person of an applicant for subsidiary protection is not subject to the condition that that applicant adduce evidence that he is specifically targeted by reason of factors particular to his personal circumstances; the existence of such a threat can exceptionally be considered to be established where the degree of indiscriminate violence characterising the armed conflict taking place assessed by the competent national authorities before which an application for subsidiary protection is made, or by the courts of a Member State to which a decision refusing such an application is referred reaches such a high level that substantial grounds are shown for believing that a civilian, returned to the relevant country or, as the case may be, to the relevant region, would, solely on account of his presence on the territory of that country or region, face a real risk of being subject to that threat."

31. The term ‘exceptional’ should be understood in the same way as it is in the context of our domestic Article 8 jurisprudence: it expresses an expectation of how often these situations will arise, rather than introducing a hurdle to be surmounted. See QD at paragraph 25:

“….The Court did not, as it might have done, decide that "individual" was there simply to exclude persons who enjoyed some form of protection from the violence faced by the population generally. Nor, however, has the judgment introduced an additional test of exceptionality. By using the words "exceptional" and "exceptionally" it is simply stressing that it is not every armed conflict or violent situation which will attract the protection of article 15(c), but only one where the level of violence is such that, without anything to render them a particular target, civilians face real risks to their life or personal safety”.

32. As to the apparent difficulties with a test that requires there to be a ‘real risk of a threat’, the courts have made two related points.

33. The first is that whilst the individual does not have to establish that he will suffer specific acts of violence against his person he cannot succeed by claiming a fanciful fear or remote threat: as the Court of Appeal put it in QD: “when Article 15(c) speaks of a threat to a civilian's life or person it is concerned not with fear alone but with a possibility that may become a reality”.

34. The second point is that the threat itself, if sufficiently serious, can cause serious harm sufficient to reach the required threshold. In HM and others (Article 15(c)) Iraq CG [2012] UKUT 00409(IAC) (‘HM II’) the Upper Tribunal referred to this as the “inclusive approach”: “A further dimension to the inclusive approach is an understanding that even when focusing on civilian deaths and injuries it is necessary to take account of the impact of threats of violence as well as the physical violence itself”. The feared harm can therefore be physical or mental, but it must be serious. In HM the Tribunal considered that as a benchmark, it would merit medical treatment. Events such as intimidation at checkpoints, blackmail, seizure of property, raids on businesses and kidnapping would all qualify, since they could be considered reasonably likely to result in psychological terror, trauma which would, in any normal situation, require medical intervention.

35. The general level of indiscriminate violence necessary for these conditions to be met must be high; but the violence need not be directly inflicted by one of the parties to the conflict. It could for instance result from the breakdown of law and order, but it must be established that there is a causal nexus between the harm and the conflict.

36. Mr Clarke rightly stressed that the fighting must reach a critical level before the Article is engaged, but accepted that it can however be less intense if it can be shown that the individual claimant would be particularly threatened by virtue of his personal characteristics. The effect of this ‘sliding scale’ of risk, posited in Elgafaji [at 39], and confirmed in Diakité, was summarised by the President Mr Justice McCloskey in R (on the application of HN and Others) v Secretary of State for the Home Department (JR - scope - evidence) IJR [2015] UKUT 437 (IAC) as follows [at 63]:

“the Article 15(c) inquiry is two-pronged: (a) it asks whether the level of violence is so high that there is a general risk to all civilians; (b) it asks that even if there is not such a general risk, there is a particular risk based on the "sliding-scale" notion”.

37. The position of the Respondent at the date of the appeal before me was that there are at present places in Libya where there was a demonstrable risk such that Article 15(c) would be engaged. In his submissions Mr Clarke referred to the ‘east of the country’ as being a particularly dangerous for civilians, with “extreme” levels of violence being recorded. It is not accepted, however, that the situation in the entire country reaches that high threshold. In particular, he submitted that the Appellant’s home city of Tripoli was sufficiently calm to justify a “notional return”. Mr Clarke invited me to dismiss the appeal on the premise that the Appellant would be able to return safely to the city, notwithstanding the fact that Tripoli airport remains closed and there are no returns being made to Libya from the UK. He submitted that the inability of the Respondent to actually make a return direct to Tripoli was irrelevant. I could determine the appeal on the notional basis that a direct flight there would be the route of return. This submission raises two questions. First, is the route of return a relevant consideration for the Tribunal; second, is Tripoli in fact safe as the Respondent suggests?

38. In support of his submissions on the route of return Mr Clarke relied upon the decisions of the Upper Tribunal in AMM and Others (conflict; humanitarian crisis; returnees; FGM) Somalia CG [2011] UKUT 00445 (IAC) and HN & Others (better known as Naziri). He submitted that these decisions were authority for the proposition that when considering Article 15(c) the decision-maker can imagine that she will be able to transport the claimant safely to a location unaffected by the fighting, either in the context of an ‘internal flight alternative’ or, as in this case, to his home area. I can find no support for this proposition in either decision. In AMM the Tribunal had cause to consider whether “technical obstacles to return”, such as a difficulty in securing travel documents, could be taken into account when assessing whether a claim was made out. It found not, extending the principle in Article 8 (3) of the Qualification Directive to returns to home areas as well as internal flight locations. The decision maker was entitled to imagine that the documents could be obtained, and that removal could therefore be affected. The inability of the individual to get on a plane was not logically capable of demonstrating that he was at risk in any given place in his country of origin. That is an uncontentious finding. Mr Clarke seeks however to extend that logic to the facts in this case: he invites me to overlook the fact that the Appellant could not be flown directly to Tripoli and would, in all likelihood, have to make a land journey either from Tobruk (where there is said to be a functioning airport) or from a neighbouring country such as Tunisia.

39. I am not prepared to extend the principle in that way. To do so would be to do and substantively undermine the purpose of the subsidiary protection provisions. That there is a clear distinction between the issue of travel documents and the journey that an applicant must take is made clear by the decision in AMM itself: “travel by land across southern and central Somalia to a home area or proposed place of relocation is an issue that falls to be addressed in the course of determining claims to international protection. Such travel may well, in general, pose real risks of serious harm, not only from al-Shabab checkpoints but also as a result of the present famine conditions. Women travelling without male friends or relatives are in general likely to face a real risk of sexual violence” [at paragraph 12 of the headnote]. I find that the risk assessment must logically entail examination of not only where the Appellant is going, but how he is going to get there.

40. I would note as an aside that Article 8 of the Qualification Directive has been substantially recast (by PE-CONS 50/11). The form of the Directive applied by most other member states (2011/95/EC) now omits any reference to “technical obstacles” and specifically endorses the approach I have taken here:

As part of the assessment of the application for international protection, Member States may determine that an applicant is not in need of international protection if in a part of the country of origin, he or she:

(a) has no well-founded fear of being persecuted or is not at real risk of suffering serious harm; or

(b) has access to protection against persecution or serious harm as defined in Article 7,

and he or she can safely and legally travel to and gain admittance to that part of the country and can reasonably be expected to settle there.

It is arguable that this recast text simply reflects the meaning that the original sought to convey. Although this version has not been adopted by the UK, which continues to implement 2004/83/EC, it should be noted that this was not one of the amendments that gave rise to objections.

41. I must therefore have regard to the route by which the Appellant will get to his proposed place of residence as well as assessing whether or not he faces a real risk of a threat to his life or person in Tripoli, his home area. I remind myself of the personal characteristics and history of the Appellant. I do so on the basis of his credible evidence:

The Appellant was born in Libya in 1986 to a family who worked for the Gaddafi government

In 1988 he was taken to Germany where his father was stationed as diplomat. He lived there between the ages of 2 and 8

The family returned to Libya in 1994. The Appellant lived in Tripoli between the ages of 8 and 14. The family home is in an area of Tripoli known as Hay Al-Andalus

In October 2000 the family moved to the UK, whilst his father was stationed in London. The Appellant finished school here and progressed to Middlesex University where he studied accountancy

The Appellant left the UK in December 2009. He went to live in Libya where he was employed by Shell Oil Exploration as an project accountant. In the two years that he spent in Libya he visited the UK seven times

The Appellant last entered the UK in March 2011 and has remained here ever since

The Appellant’s parents, sisters and brother Tariq left Libya shortly after he did in 2011

In 2012 the Appellant’s brother Taha disappeared in Tripoli. The family have had no contact from his ever since and he is feared dead

Sometime towards the end of 2012/beginning of 2013 the family home and other assets in Tripoli were seized by militias, who retain control of the property today

The Appellant no longer has any close family living in Libya. His father died in Vienna on the 19th January 2014. He has lost contact with his mother and sisters (aged 17 and 26) but he assumes that they remain in Tunisia. His brother Tariq has been granted international protection in Italy

The Appellant has been diagnosed with acute stress, anxiety and depression and has been receiving treatment for these conditions, which he attributes to the dislocation of his family, the death of his father and the disappearance of his brother

The Appellant speaks fluent English and Arabic

The Appellant is highly educated, holding a degree in accountancy. He is part way through his ‘ACCA’ exams. He has been offered a place to continue his placement at Shell London but he cannot take up this offer until his immigration status has been resolved. If he resumes his studies and placements he will be fully qualified in 2019

He has had various jobs in the UK. He is currently working in Pret a Manger. He is financially self-sufficient and has never had any recourse to public funds in the UK. In periods where he has had no or only low paid employment he has survived by using the money he saved whilst working for Shell

42. It was clear from the Appellant’s oral evidence that the focus for his concerns is the security situation in the country. Asked by Mr Clarke whether he would be able to work and support himself in Libya the Appellant explained that setting the war aside, there would be significant obstacles to him managing to get employment. The private sector has collapsed, with international companies withdrawing. He would not be able to find employment with the government because of his name, and his association with his father. Anyone who had that kind of connection to Gaddafi is unlikely to be employed with the new government. By way of example he said that in 2012 he had approached the Libyan embassy in the UK about a position they were advertising. He was summarily turned down. He cannot know for certain why, but he has always assumed it is because of his father.

43. The human rights reports before me are consistent in their general condemnation of the security situation in Libya. The one note of relative optimism was that in May 2016 the United Nations Secretary General reported to the Security Council that the situation in Tripoli was tense, but calm after the arrival of the PC/GNA. This was a matter relied upon by Mr Clarke. Ms Nizami submitted that since that initial period of calm, the situation in the city has substantially deteriorated. The Appellant’s bundle contains several references to violence in Tripoli which post-date the Secretary-General’s assessment.

44. In June 2016 Al-Jazeera reported on the apparent murder of 12 Gaddafi loyalists shortly after the men had been released from prison in the city. On the 23rd July 2016 the Libya Herald ran an article naming the city as the “kidnap capital” of the country. The police had admitted to there being more than a dozen incidents in the preceding two weeks, with two of the victims being murdered. Some arrests had been made over the course of the year, but it was likely that the true figures of kidnappings were higher, since the criminals generally impress upon the family that the victim will be murdered should the authorities be informed. Amnesty reported on indiscriminate shelling taking place between pro-NSG groups and the GNA in the city in October 2016, with shells hitting a camp for the internally displaced. The BBC reported in December 2016 that rival militias were battling each other “in the heaviest fighting in the Libyan capital for two years”. Tanks and pickup trucks armed with rocket launchers were deployed in several districts. An FCO report published in February 2017 stated that at least eight civilians were reported dead during those clashes. I was not directed to any evidence to show that this fighting has abated. On the 14th March 2017 the ‘Libya Observer’ reported on clashes erupting in several districts, including the Appellant’s home area of Hay al-Andalus:

“According to eyewitnesses, the forces of the Tripoli Revolutionary Brigade and Tripoli security department stormed into Hay al-Andalus and Gurji on Tuesday dawn and then clashes took place in a bid to push the armed groups out, leaving casualties from both sides and considerable material damage in the areas”

The situation in Tripoli is described as remaining “dangerously tense”. I have been shown reports on the same incidents in the Libya Express and the Mail Online. The Libya Express article is accompanied by a man firing heavy artillery against a background of rubble. The Mail reports that after four days of intense fighting the GNA announced a ceasefire had been brokered, an announcement quickly denied by the warring factions, the militias known as Thowar Tarabulus and Abu Slim.

45. On the day of those clashes, the 14th March 2017, the Foreign and Commonwealth Office updated its advice to report that although the GNA was “working to restore stability and security to Libya”, “intense fighting continues in a number of areas” and the situation remained “dangerous and unpredictable”. The FCO concludes:

“Fighting can break out anywhere without warning, including between local militia groups, and many civilians have been killed in conflict in residential areas.

There is a high risk of civilians, including journalists, humanitarian and medical workers, being caught in indiscriminate gunfire or shelling, including air strikes, in all areas where there is fighting, putting those in the area at risk…

…Heavy fighting continues in residential areas of Benghazi city, and civilians have been killed in air attacks on Dernah. There have been ongoing violent clashes in the southern cities of Ubari, Sebha and Kufrah. During 2016 there were a number of clashes between militias in the Tripoli suburbs of Abu Sleem, Ghoat Shaal, Bab Ben Gashir and Zawia…”

46. In his submissions Mr Clarke pointed out that these troubling reports notwithstanding, on a statistical analysis, the casualties in Tripoli remain relatively low, compared to the size of the city and its believed population. He submitted that the threshold for the threat of harm was extremely high.

47. I am satisfied that at the date of the appeal before me the situation in Tripoli – and specifically the Appellant’s home area – was that civilians there faced a serious threat to their lives or person by reason of indiscriminate violence. The “relatively low” number of fatalities relied upon by the Respondent (I was not provided with specific figures) is not the only matric that I must have regard to. The clashes in Tripoli, and the breakdown of law and order, must be seen in the context of the war overall. The country has been extremely unstable since the fall of Gaddafi, and even putting the most optimistic gloss possible on the progress being made by the PC/GNA, it looks to remain volatile and unpredictable for the foreseeable future. The civilian, sheltering in his home in Hay al-Andalus, is unlikely to be resting assured that the men with the rocket launchers will soon be apprehended and the ‘government’ will prevail. On the contrary, the fighting in the city persists against a background of political instability, impunity for human rights abusers, and unpredictable developments elsewhere in the country. The rival governments in Libya have made little to no headway in peace talks. Neighbourhoods are plagued by local militias whose allegiances can change and who have shown consistent disregard for the civilian population they purport to ‘defend’. So, whilst a civilian in Tripoli may stand a statistically low chance of a rocket propelled grenade actually detonating in his living room, he lives with the daily, constant and reasonable fear that it will do so. That level of sustained stress is reasonably likely to merit medical treatment.

48. I find that the Appellant would be in a substantially worse position than the population at large. He has no home to go to (it is occupied by one of the militias that he fears). He has no family to whom he could turn for shelter, advice or support. More importantly he has no experience at all of the country to which he would be returned. This man has spent only 10 of his 31 years in Libya: between birth and the age of two, between the ages of 8 and 14, and for two years as a professional working for Shell Oil. The Libya he lived in as a child has all but vanished. As the son of a diplomat in the Gaddafi regime, and indeed as a project manager for an international company, he would have lived a secure and privileged life, with little to no contact with the ‘street’. He has not been back to Libya at all since 2011. Whilst it was clear from his evidence that he has sought to keep abreast of developments in the country, he will have no understanding of political allegiances on the ground, of how to navigate safely around the city, or how to talk his way through a checkpoint. He will stand out for what he is: a middle-class ex-pat.

49. This personal characteristic, in other circumstances an enviable quality, will upon return to Libya become a liability. The roads from Tobruk, or from the Tunisian border, are controlled by multiple militias, few if any of whom would be held to account by whichever ‘government’ they nominally pledge allegiance to. The reports before me, and the Libyan press, make repeated reference to abuse against civilians at checkpoints around the country. This extract from an Amnesty International report in the Appellant’s bundle serves as illustration:

“Two sisters aged 27 and 32 were stopped by a militia at a checkpoint in February 2012 and forced at gunpoint to a nearby farm. One was suspended from a door for hours, had boiling water poured on her head, and was beaten and stabbed whilst being accused of supporting the former government of Colonel Muammar al-Gaddafi. The other was also suspended and beaten. The husband of one of them, who was detained at the same time, has disappeared”.

I find it difficult to imagine how this Appellant, with already poor mental health, would be able to approach these situations with any degree of confidence. Even if he manages to avoid actual physical violence he will be under constant and overwhelming psychological stress. The fact that he is a single young man of fighting age may attract additional attention.

50. Taking all of the evidence before me into account I am satisfied that this Appellant would face a real risk of a serious and individual threat to his life or person should he be returned to Libya and the appeal is accordingly allowed with reference to Article 15 (c).

Article 8 ECHR

51. In order to qualify for leave to remain on human rights grounds as they are expressed in the Immigration Rules the Appellant would need to demonstrate that he met all of the relevant requirements in paragraph 276ADE(1). There is no issue that he meets all of the ‘suitability’ requirements referenced at sub-paragraph (i). He must thereafter meet one of the alternative requirements at sub-paragraphs (iii)-(vi) of that rule. The parties were in agreement that the only potentially applicable category would be (vi), which requires him to show that he:

(vi) subject to sub-paragraph (2), is aged 18 years or above, has lived continuously in the UK for less than 20 years (discounting any period of imprisonment) but there would be very significant obstacles to the applicant’s integration into the country to which he would have to go if required to leave the UK.

52. There is little judicial guidance on what might constitute “very significant obstacles” or “integration”. In Bossade (ss.117A-D-interrelationship with Rules) [2015] UKUT 415 (IAC) the Tribunal found – albeit in the context of the statutory provisions on deportation – that the term imported a “stringent” test. Applying it in the case of a foreign criminal who had lived in the UK since he was four years old, the panel said this:

“57. But the paragraph 399A(c) test is more stringent: it is not met simply by showing that a person has no close family ties in the country to which it is proposed he is deported; it requires “very significant obstacles to…integration” to be shown. In our judgement the obstacles the claimant faces do not meet this demanding standard. In relation to his command of language spoken in the DRC, it was his own mother’s evidence that he had been brought up in a household where French was spoken. The DRC is a Francophone country. In any event, it was not suggested on his behalf that there would be any reasons related to physical or mental inability preventing him from learning the local language or dialect. As regards his lack of knowledge of the culture, whilst it was his evidence that he identified with British culture, it was not suggested he had specifically rejected or no longer understood his cultural origins. Furthermore, as regards lack of family ties, he is now a young adult and the skills he has acquired through attending classes in prison will assist him in being able to earn a living without the need to be a dependant. Further, we agree with Mr Jarvis that it is reasonable to infer that his mother and/or other relatives here will seek to help him financially, at least until he has had time to find his own feet. We agree with Mr Jarvis that it has not been shown that he would be prevented by reason of any physical or mental ability from developing social and cultural ties in the DRC. He is young, able-bodied and of an adaptable age”.

53. In the Secretary of State’s guidance on this rule, Appendix FM 1.0 Family Life (as a Partner or Parent) and Private Life: 10-Year Routes August 2015, the Respondent instructs caseworkers that the starting point should be the presumption that integration will be possible. It is for the applicant to introduce evidence to demonstrate that it is not. A number of factors can be considered, for instance linguistic, familial, cultural and social ties to the destination country, but the focus should, in the Respondent’s view, be on the extent to which it is possible for the applicant to enjoy an Article 8 private life if removed from the United Kingdom:

“A very significant obstacle to integration means something which would prevent or seriously inhibit the applicant from integrating into the country of return. The decision maker is looking for more than obstacles. They are looking to see whether there are “very significant” obstacles, which is a high threshold. Very significant obstacles will exist where the applicant demonstrates that they would be unable to establish a private life in the country of return, or where establishing a private life in the country of return would entail very serious hardship for the applicant”.

54. If on the evidence this test is met, the appeal must be allowed on human rights grounds. If the test is not met, I must proceed to consideration of Article 8 ‘outside of the rules’. I must first assess whether the Appellant has a private and/or family life in the UK of sufficient gravity to engage the article, and whether his removal from the UK would result in an interference with it. It is not contested that the Secretary of State has the power in law to remove persons without lawful leave to remain in this country. The only remaining question would be whether it would be proportionate to remove the Appellant, taking into account all relevant factors but having particular regard to the public interest as it is expressed at s117B(1)-(5) of the Nationality, Immigration and Asylum Act 2002. One of the factors identified by Ms Nizami has having a bearing on that overall assessment is delay. Reliance is placed on EB (Kosovo) v Secretary of State for the Home Department [2008] UKHL 41: the Respondent’s failure to act, and the consequent delay, has diminished the weight to be attached to the public interest, whilst at simultaneously intensifying the depth and quality of the Appellant’s private life in this country.

55. The Appellant has a number of things going for him. He is young, relatively healthy, educated, he speaks Arabic fluently and he has familiarity with the culture of Libya. Ordinarily these personal characteristics would likely defeat any claim under paragraph 276ADE(1)(vi). The fact that an adult male had no family in the country to which he was to be sent would be largely irrelevant, since he could be expected to forge his own private and family relationships.

56. This is not however an ordinary situation. The Appellant, who has lived outside of Libya for most of his life, is returning to a country in crisis. There is widespread population displacement, armed conflict, the economy is in collapse and the humanitarian situation bleak. In these situations it is natural and understandable that families will turn inwards. People who are fearful are unlikely to help a stranger, offer accommodation or work to someone they do not know. It is very difficult in these circumstances to see how he would be able to lead any kind of ‘normal’ life in Libya today, build friendships or a support network. As the Appellant himself puts it:

“I no longer have anything in common with any of the people who are residing in Libya now, apart from my nationality and the language that we speak. I do not have any family members or close friends residing in Libya. I will be considered as an outsider if I ever return to Libya”3.

57. I am satisfied that in the particular circumstances that the Appellant would find himself in, he would face very significant obstacles in establishing any kind of private life. Return would entail very serious hardship for him: he would experience an objectively reasonable fear of violence, a subjective fear of ‘punishment’ for his family connections, he would be socially isolated, face significant economic challenges, and would have no support network. I am satisfied that these cumulative factors meet the high threshold imposed by the rule. The appeal must therefore be allowed with reference to paragraph 276ADE(1)(vi).

58. In respect of Article 8 ‘outside of the rules’ I would add this. The Appellant has spent 10 years of his life in Libya, 6 in Germany and 15 in the UK. He speaks fluent English (with only a trace of an accent). He has grown up and had the bulk of his education here, and spent most of his adult life in this country. He has a home, employment and longstanding friendships in the UK. He has always been financially independent, and has always complied with immigration control. Although little weight can be attached to a private life developed whilst his status was ‘precarious’, there has been a significant delay by the Home Office in determining his application for leave to remain. Ordinarily such delay can be assumed to have resulted in the strengthening of ties to the UK, and so to diminish the weight to be placed in the Secretary of State’s side of the scales, but in this case the delay had the additional result of further dislocating the Appellant from his family, and country of birth. In the period that the Appellant was waiting for a decision on his 2012 claim for protection, his father became gravely ill. The papers before me show that the Appellant’s representatives sent numerous4 letters to the Home Office asking for a decision, and as his father’s illness grew worse, made increasingly desperate pleas for emergency travel documents so that the Appellant could get to his bedside in Vienna to be with him. His father died in January 2014. At the hearing before me the Appellant struggled with his emotions as he described how difficult that has been for him. He has not only lost the opportunity to say goodbye to his father, but has suffered serious damage to his relationship with his mother, who could not understand why he did not leave the UK. The Appellant told me that he has had no contact with his mother or sisters since his father’s death. Contrary to the suggestion made by the Respondent in submissions, this period of delay did not “work to his benefit”. It left him depressed, suffering from anxiety and estranged from his family through no fault of his own. Against the background of the war in Libya I am satisfied that this is one of those exceptional situations in which it would be unjustifiably harsh to remove this Appellant, even if he does not qualify for leave to remain in any other capacity.

Decisions

59. The determination of the First-tier Tribunal contains errors of law such that it should be set aside to the extent identified above.

60. The decision in the appeal is remade as follows:

“The appeal is dismissed on asylum grounds.

The appeal is allowed with reference to Article 15(c) of the Qualification Directive.

The appeal is allowed on human rights grounds (under the Rules and with reference to Article 8 ECHR)”

61. There is an order for anonymity.

Upper Tribunal Judge Bruce
17th April 2017