Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/10446/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 11 August 2016
On 17 August 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE APPLEYARD

Between

[I m]
(anonymity direction not made)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr. A. Chakmakjian, Counsel.
For the Respondent: Mr. S. Kotas, Home Office Presenting Officer.

DECISION AND REASONS

1. The appellant is a citizen of Libya who appealed against a decision of the respondent to refuse asylum, grant Humanitarian Protection and also argued that his Article 2, 3 and 8 rights under the European Convention of Human Rights would be breached were he to be returned to his country of origin.
2. His appeal was heard by Judge of the First-tier Tribunal K. Real who in a decision promulgated on 12 May 2016 dismissed it on all grounds.
3. The appellant sought permission to appeal which was initially refused by the First-tier Tribunal. However, the grounds were renewed for the Upper Tribunal and in a decision dated 11 July 2016 Upper Tribunal Judge Rintoul gave his reasons for granting permission to appeal. They were:-
"It is arguable that, in assessing risk on return, the judge failed properly to take into account the evidence of Dr. Benkato. It is also arguable that she wrongly considered the incident at the checkpoint [34] to be random, and that at [35]-[37] she failed properly to apply the law with respect to country guidance decisions.
All grounds are arguable."
4. Thus the appeal came before me today. At the hearing Mr. Chakmakjian handed up the following:-
(a) Country Information and Guidance Libya: Security and Humanitarian Situation Version 1.0 June 2016.
(b) Country Information and Guidance Libya: Ethnic Minority Groups Version 2.0 June 2016.
(c) MM (unfairness; E & R) Sudan [2014] UKUT 00105 (IAC).
(d) HH (Somalia), AM (Somalia), J (Somalia), MA (Somalia) v SSHD [2010] EWCA Civ 426.
Both representatives urged me to take into account the authority of AT and Others (Article 15c; risk categories) Libya CG [2014] UKUT 318 (IAC) which they also handed up.
5. At the heart of the grounds seeking permission to appeal, which Mr. Chakmakjian expanded upon is an argument that the judge materially erred in law in his assessment of the risk on return of this appellant to Libya, particularly in light of the positive credibility findings made by the Judge and the opinions expressed within the expert report prepared by Dr. Adam Benkato dated 27 April 2016. The Judge found that the appellant is of Amazigh ethnicity, the documentation relating to the report of threats made to his brother and wider family are genuine, that militia members concerned about Amazigh activism would perceive a connection between the appellant and others with the same surname and that the factual basis of the appellant's account is plausible. The grounds assert that the Judge's finding that the account the appellant gives about being beaten at a checkpoint would be a random event and that he was not specifically targeted is materially flawed and inconsistent with his positive credibility findings made earlier within the decision. The appellant's evidence being that he was beaten as a consequence of his name and his family connection to Amazigh issues. Further, that the judge failed to adequately assess the evidence that the appellant had been previously specifically targeted, particularly that the judge erred in finding that because the threat to the appellant was in 2012 he was not satisfied that any such threat is current. This finding, it is submitted, is contrary to the opinion of the expert evidence before the judge and the judge has failed to give adequate reasons as to why the expert opinion was rejected. Dr. Benkato made it clear that on the basis that the appellant was once targeted because of his family name and that, in addition, his brother was also targeted, the appellant would be at risk of further targeting upon return. Further, the judge's findings at paragraph 35 of his decision are materially flawed. Dr. Benkato's conclusion was that it is entirely plausible that militia members at checkpoints, especially those concerned about "Amazigh activists" would perceive a connection between one "Madi" and another "Madi". One of the risks to the appellant is that he would be identified as an Amazigh connected with known Amazigh activists because of his name. Contrary to the judge's findings that the risk that the appellant faces from militias are not simply random, albeit that the judge accepted at paragraph 37 of his decision that random kidnappings at checkpoints around Libya have occurred, but rather, are specific to the appellant because of his ethnicity and family name. Dr. Benkato's conclusion on the issue is not limited to "fear" as opposed to "future risk", but as the expert report makes clear "it is plausible for Mr [M] to be at risk in Libya as an Amazigh Libyan". As a consequence it was submitted that the judge has misunderstood parts of the expert report or failed to adequately consider it. The errors made have infected his assessment of the reasonableness of return or relocation. Dr. Benkato concluding that the appellant would be at risk in Libya.
6. Beyond relying on these grounds Mr. Chakmakjian submitted that the judge had not borne in mind that the appellant is from an ethnic minority, has close links to that minority which has a high profile and would be recognised as a minority member himself if returned to his country of origin. The judge has failed to consider material evidence and when invited to depart from country guidance (AT) he has not given sufficient weight to the expert evidence or acknowledged the position in Tripoli where the airport was burnt to the ground in 2014 and the impact of this on the appellant's claim and ability to return and/or internally relocate. In short the expert evidence should have been preferred. In any event, in light of the country guidance handed up at the hearing and relying on MM, the situation in Libya was much worse than at the time the country guidance case was decided. He referred me to paragraphs 2.3.13 and 2.3.14 of the Country Information Guidance Libya: Security and Humanitarian Situation Report. He accepted that that report was not before the judge when deciding the appeal, but that the expert evidence was and, in his submission, should have "usurped" the country guidance available.
7. Mr. Kotas submitted that it was unfair to criticise the judge as in the circumstances of this appeal there was no other evidence before him beyond that of the expert whose report in any event does not deal with the issue of internal relocation. He argued that there were no "strong grounds" before the judge to enable him to depart from country guidance. Moreover, there was a finding at paragraph 40 of the judge's decision that the only reason the appellant had given for not being able to live in Tripoli was that it was "quite expensive". He submitted, contrary to Mr. Chakmakjian's submissions, the expert evidence did not go so far as was suggested in relation to the issue of internal relocation. Beyond that the judge's findings at paragraphs 42 to 47 of his decision in relation to Article 8 should be preserved as they have not been challenged within the grounds seeking permission to appeal.
8. Mr. Chakmakjian responded stating that in light of the erroneous consideration of background material, even the Article 8 findings of the judge were unsafe and particularly so in the context of the authority of MM referred to earlier in this decision.
9. The judge has plainly given consideration to the report of Dr. Benkato. For example, paragraphs 28, 29, 30 and 31 of his decision state:-
"28. The Appellant relies on an expert report by Adam Benkato dated 27th April 2016. Dr. Benkato concludes that the Appellant's ethnicity is Amazigh because of his ability to speak Tamazight fluently with a dialect of Yefren. I find this evidence to carry significant weight because of his expertise and because it is not contradicted by positive evidence from the Respondent, and I find Dr. Benkato's report overall to address and outweigh the concerns of the Respondent within the Reasons for Refusal. For these reasons I find the expert evidence to support the Appellant's claim to have Amazigh ethnicity and I find this aspect of the Appellant's claim to be established. Since his ethnicity is key to the rest of his narrative, I bring forward this finding in assessing the credibility of the rest of the Appellant's account.
29. Dr. Benkato also examines two documents put forward by the Appellant concerning the report of threats made to his brother and wider family, which were reported by the Appellant's brother on 12th April 2012. He concludes that the documents are authentic documents produced in Libya by the offices named therein. I find this opinion to carry significant weight because it is based on external comparison and Dr. Benkato's knowledge of and experience with Libyan documents, although this cannot be determinative of the events described, which were reported to these offices, nor determinative of the relationship between the person reporting and this Appellant. Dr. Benkato is candid in being unable to cite evidence that would establish a risk for individuals known to have been involved with the death of regime figures solely for that reason in post-2011 Libya. In light of that, and because the threat was in 2012 I am not satisfied that any such threat is current. It follows that, even taking the Appellant's case at its highest; I do not find him to establish a real risk of persecution or serious harm as a consequence of his family's past actions.
30. However Dr. Benkato confirms that the family name is known to be active in the movement for Amazigh rights and recognition, and also states that most Libyans easily recognise family and tribe names, especially from their own regions. For these reasons I accept that it would follow that militia members concerned about Amazigh activism would perceive a connection between this Appellant, from Yefren, and others with the same surname, also from Yefren, whether the two were closely or distantly linked.
31. I find that Dr. Benkato's report puts into context the Appellant's account of events and I find this to be consistent with the reports of threats complained of in April 2012, and also consistent with the Appellant's account of events in December 2011. I conclude, in the round with the expert report, that it is a plausible account set against external information and the relevance that derives from the Appellant's family name. I do not find that in context there are inconsistencies that actually, as opposed to potentially engage section 8."
I have also born in mind the authority of SG (Iraq) [2012] EWCA Civ 940 and in particular paragraph 47 thereof which states:-
"It is for these reasons, as well as the desirability of consistency, that decision makers and tribunal judges are required to take Country Guidance determinations into account, and to follow them unless very strong grounds supported by cogent evidence, are adduced justifying their not doing so."
10. In this particular appeal I find that albeit that the judge has considered the expert evidence, there is a failure to have engaged fully with it which amounts to a material error of law. In so failing there is no consequent analysis with adequate reasons as to why the expert evidence should not have been preferred and findings as to whether there are strong grounds supported by cogent evidence justifying not adhering to country guidance.
11. In light of that finding which causes me to conclude that this is an appeal that will have to be heard afresh, it is not necessary for me to give detailed consideration to the other grounds. However, for completeness I indicate that I find that all the grounds are made out and that the position within the appellant's country of origin at the time of the judge's decision was different to those prevailing at the time AT was decided. In falling into error on these points I also find that the judge erred at paragraph 34 of his decision in relation to the appellant being beaten at a checkpoint and a finding that it was random.
12. The judge's Article 8 analysis can be found at paragraphs 42 to 47 of his decision. I find it has not been challenged in the grounds seeking permission to appeal. Therefore that aspect alone of this appellant's appeal is preserved and it is the issues of asylum, Humanitarian Protection and Articles 2 and 3 which require consideration afresh.
13. The making of the previous decision involved the making of an error on a point of law.
14. I set aside the previous decision. The appeal is remitted to the First-tier Tribunal to deal with afresh pursuant to Section 12(2)(b)(i) of the Tribunals, Courts and Enforcement Act 2007 and Practice Direction 7.2(b), before any judge aside from Judge K. Real. The remittal is on those issues only and the judge's findings and decision in relation to Article 8 are preserved.

Signed Date 16 August 2016

Deputy Upper Tribunal Judge Appleyard