Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/10402/2015

THE IMMIGRATION ACTS

Heard at Manchester
Decision & Reasons Promulgated
On 6 December 2016
On 7 December 2016

Before

UPPER TRIBUNAL JUDGE PLIMMER

Between

MB
ANONYMITY DIRECTION MADE
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms Patel (Counsel)
For the Respondent: Mr McVeety (Senior Home Office Presenting Officer)

DECISION AND REASONS

Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/269) I make an anonymity order. Unless the Upper Tribunal or a Court directs otherwise, no report of these proceedings or any form of publication thereof shall directly or indirectly identify the original Appellant in this determination identified as MB.

1. I have made an anonymity order as this decision refers to the appellant's protection claim.

2. This is an appeal by the appellant, a citizen of Libya, against a decision of the First-tier Tribunal ('FTT') dated 10 June 2016, in which it dismissed his appeal against the respondent's decision to refuse asylum and humanitarian protection.

FTT decision

3. The FTT disbelieved much of the appellant's account including his claim that he was deliberately targeted in Libya. The FTT rejected the appellant's claim that he would be at risk in Libya for reasons relating to his sur place activities. Having made these specific findings, the FTT considered the more general position for the appellant and his family members in their home area of Benghazi. The FTT applied AT and others (Article 15c; risk categories) Libya CG [2014] UKUT 00318 (IAC) and concluded in line with that case that a person with the appellant's characteristics would not be at risk of indiscriminate harm in Benghazi. The appeal was dismissed on all grounds.

Error of law

4. At the beginning of the hearing both representatives indicated that they agreed that the FTT's decision contains two material errors of law. Before turning to these it is important to note that there has been no appeal against the FTT's findings regarding the appellant's past activities in Libya or his sur place activities. Ms Patel has firmly predicated this appeal on the appellant's "bare" characteristics: a healthy Libyan man with a wife and young children, whose home area in Benghazi. It follows that the FTT's factual findings are uncontaminated by the errors of law identified below and are preserved.

5. Turning to the two errors of law. First, Mr McVeety accepted that as at the date of hearing there was adequate evidence that conditions in Benghazi had deteriorated to the extent that AT should have been reconsidered. That this is so is apparent from the plethora of materials available, as summarised in the respondent's report "Country Information and Guidance - Libya: Security and humanitarian situation (June 2016).

6. Second, Mr McVeety accepted that the FTT did not address the submissions on the safety of the route of return for the family members. Mr McVeety however submitted that the respondent's current position is that this appellant is at risk in his home area of Benghazi but that he can internally relocate to Tripoli, and that flights have resumed to an airport nearby. The question as to the safety of the route of return has therefore changed. There is no longer any issue regarding the safety of returning to Benghazi. Rather, safety of route of return is restricted to a consideration of the safety of getting to Tripoli

7. The appellant was granted permission in relation to the latter point in para 6 but not the former in para 5. Mr McVeety did not object to permission being extended to the former point, as contained in ground 2 of the grounds of appeal, and I formally grant permission in relation to ground 1.

8. As both representatives agreed that the decision contains these two material errors of law, there is no need for me to give any further detailed reasons.

Re-making the decision

9. I indicated to Ms Patel that the decision could potentially be remade by me. She was clear in her submission that extensive factual findings were required regarding the issue of internal relocation and these should be made by the FTT.

10. By paragraph 7.2 of the relevant practice statement for appeals on or after 25 September 2012, I must be satisfied that:

"the nature or extent of any judicial fact finding which is necessary in order for the decision in the appeal to be re-made is such that, having regard to the overriding objective in rule 2 it is appropriate to remit the case to the First-tier Tribunal."

11. Both representatives agreed that the situation in Libya was changing rapidly and it is important for the Tribunal to assessment the position for this family in Tripoli by reference to comprehensive and up to date evidence that was not available at the date of hearing before me. Both agreed that this should be considered by the FTT. It is clear from FA (Libya: art 15c) Libya CG [2016] UKUT 413 (IAC) that AT is no longer country guidance given the numerous changes in Libya since November 2013 and the issue of internal relocation (the risk and reasonableness analysis) for this appellant shall need to be carefully considered in light of updated evidence. In all the circumstances I am satisfied that it is appropriate to remit the case to the FTT to determine the issue of internal relocation and if relevant the safety of the route of return to Tripoli (the respondent having accepted that the appellant cannot safely return to Benghazi).
Decision
12. The decision of the FTT involved the making of a material error of law and I set aside those parts of the decision addressing risk on return and humanitarian protection.

13. The decision shall be remade by the FTT.

Directions

(1) The matter shall be listed on the first available date before the FTT with a time estimate of 2.5 hrs.
(2) The appellant's solicitors shall file and serve a skeleton argument outlining his position on the outstanding disputed issues ((i) risk and reasonableness of internal relocation to Tripoli and (ii) the safety of the route of return to Tripoli) and the evidence relied upon with page references to the appellant's bundle (which should contain updated witness statements), 28 days before the hearing.
(3) The respondent shall file and serve a skeleton argument in response 14 days before the hearing.
(4) Arabic, North African interpreter.

Signed:
Ms M. Plimmer
Judge of the Upper Tribunal

Date:
6 December 2016