Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/10831/2015

THE IMMIGRATION ACTS

Heard at Glasgow
Determination issued
on 15 December 2016
on 19 December 2016

Before

Mr C M G OCKELTON, VICE PRESIDENT
& UPPER TRIBUNAL JUDGE MACLEMAN

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Appellant
and

A M A

Respondent

For the Appellant: Mr M Matthews, Senior Home Office Presenting Officer
For the Respondent: Mr S Winter, Advocate, instructed by Latta & Co, Solicitors

DETERMINATION AND REASONS
1. Parties are as described above, but the rest of this decision refers to them as they were previously and will be again in the FtT.
2. By decision promulgated on 29th of March 2016 FtT Judge Kempton allowed the appellant's appeal "on humanitarian protection grounds only". She found at paragraph 63 that the appellant is excluded from refugee status under article 1F (a) of the Refugee Convention; and at paragraph 65 that he is not excluded from humanitarian protection by "Home Office guidance", and that the country situation is too dangerous to refuse such protection.
3. The SSHD's first ground of appeal says that involved legal error, because exclusion from humanitarian protection arises not from "guidance" but from the Immigration Rules, paragraph 339D (i), accurately transposing the Qualification Directive, article 17 (1) (a). The appellant acknowledges this error of law.
4. At paragraph 67 the judge said that being unable to accept that the appellant was entitled to asylum, she did not consider it appropriate to allow the appeal under articles 2 or 3 of the ECHR.
5. In a rule 24 response the appellant submitted that this was a further error, because exclusion from refugee and humanitarian protection does not take the appellant outside the scope of direct protection under the ECHR. The SSHD acknowledges this error of law.
6. Those two errors require the decision to be set aside.
7. The SSHD's second ground is failure to apply country guidance that indiscriminate violence is not at such a level as to qualify all Libyans for protection. The third ground in effect extends the same argument to the findings about the appellant's wife and children. We need not resolve these grounds, as those matters will be encompassed into the remaking of the decision under the ECHR, and will turn on up-to-date evidence about country conditions.
8. During these proceedings, AT and Others Libya CG [2014] UKUT 318 (IAC) has been replaced by FA (art 15(c)) Libya CG [2016] UKUT 00413 (IAC). Although the present case, due to exclusion, does not fall within art 15 (c), the general finding in FA applies. Risk is to be determined on a case-by-case basis, on the evidence in each individual case, until general up-to-date guidance is again published.
9. To preserve his position, the appellant had submitted to the FtT an out-of-time application for permission to appeal to the UT, which remains undecided. In view of the acknowledgement by the SSHD of the error of law above, the appellant withdrew that application orally before us. His solicitors undertook to confirm withdrawal to the FtT in writing for the record.
10. It was common ground that although there is travel in and out of Libya, including air travel, no enforced returns are presently taking place, but that the case will fall to be determined on the assumption that the appellant and his family would be returned.
11. An anonymity direction was made in the FtT. That point was not addressed before us, so the direction remains in force. We have anonymized this determination.
12. The decision of the FtT is set aside. Its findings stand only to the effect that the appellant is excluded from refugee status and from humanitarian protection.
13. In view of the remaining scope of the case and the requirement for findings based on up-to-date evidence about country conditions, parties agreed that it was appropriate in terms of section 12 (2) (b) (i) of the 2007 act and of Practice Statement 7.2 to remit the case to the FtT for further hearing.
14. The members of the FtT chosen to consider the case are not to include Judge Kempton.

Upper Tribunal Judge Macleman
16 December 2016.