Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/11195/2015

THE IMMIGRATION ACTS

Heard at Bradford
Determination Promulgated
On 21st November 2016
On 15th December 2016

Before

deputy upper tribunal JUDGE KELLY

Between

MOHAMMED FATHWE A EL ZAHAWI
(anonymity direction not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr A Willoughby, Counsel instructed by Maya Solicitors
For the Respondent: Mr A McVeety, Senior Home Office Presenting Officer

DETERMINATION AND REASONS
1. This is an appeal by Mr El Zahawi against the decision of a First-tier Tribunal Panel (Judge Tobin and Designated Judge McClure) to dismiss his appeal against refusal of his asylum and human rights claims. Anonymity was not directed by the First-tier Tribunal and I see no utility in directing it at this stage.
2. Mr El Zahawi's identity (and therefore his nationality) has always been accepted by the Secretary of State. The issue in the asylum appeal was the credibility of his account of the reasons for him leaving in Libya. In essence, he claimed that he had had to leave Libya because he had come to the adverse attention of so-called 'Islamic State' (ISIS) who were active in his local area. Whilst the Tribunal accepted that Mr El Zahawi may have undertaken some informal work for the Libyan Army in his home area (Bengazi) it rejected his claim that this had brought him to the attention of ISIS.
3. Mr El Zahawi applied for permission to appeal this aspect of the Tribunal's decision on the ground that it had not provided adequate reasons for that conclusion. However, Judge Fisher concluded that this ground amounted to nothing more than a disagreement with the Tribunal's findings and an attempt to re-argue the matter. He therefore refused permission to appeal on this ground and there has been no application to renew it in the Upper Tribunal.
4. However, Judge Fisher did conclude that it was arguable that the Tribunal had failed to consider whether there would be "very significant obstacles" to the appellant's reintegration in Libya as required by paragraph 276 ADE (iv) of the Immigration Rules. He therefore granted permission to appeal solely on the ground that the Tribunal had arguably erred in its consideration of the appellant's claim that the Secretary of State's decision was incompatible with Mr El Zahawi's right to respect for private life as guaranteed by Article 8 of the 1950 European Convention of Fundamental Human Rights and Freedoms.
5. The Tribunal's limited and extremely brief consideration of Mr El Zahawi's Article 8 claim is contained within the final paragraph of its decision:
Where a claim is based on Article 8 it should be considered, pursuant to the Immigration Rules. The appellant failed to meet the requirements of paragraph 275 ADE(1)(iii) of the Immigration Rules because he had not lived in the UK continuously for at least 20 years. There does not appear to be any basis upon which the appellant could qualify under a partner or parent route. Therefore, we also dismiss this limb of the appeal.
As Mr McVeety readily conceded, this analysis was inadequate in that it wholly overlooked the possibility of Mr El Zahawi succeeding under sub-paragraph (vi); that is to say, where -
? the applicant .. has lived continuously in the UK for less than 20 years ? 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 [emphasis added].
The only issue that was argued before me, therefore, was whether the Tribunal's failure to consider sub-paragraph (vi) of paragraph 276ADE (and thus to apply the test of "very significant obstacles" to Mr El Zahawi's integration on return) had affected the outcome of the appeal. That is the issue to which I now turn.
6. Mr Willoughby submitted that the Tribunal's unchallenged finding that, "the appellant may have undertaken some work for the Libyan army", ought logically to have led it to conclude that this fact would present him with a "very significant obstacle" to his reintegration in Libya. However, that argument conflates the very different potential consequences which it is necessary for an applicant to establish in order to succeed in a claim that his removal would be incompatible with his right to respect for private life, as distinct from a claim that his return to the country of origin would place the United Kingdom in breach of its obligation to afford him international protection. In the latter case, it is necessary for the applicant to substantiate his claim that he would be at risk of serious harm. The Tribunal found - for good and sufficient reasons - that, in relation to this issue, Mr El Zahawi had failed to establish that there was any such risk. By contrast, the question of whether Mr El Zahawi would face very significant difficulties to his reintegration on return to Libya was a question that depended largely upon him establishing a lack of remaining social, cultural or family ties to that country. It is difficult to see how any work that the appellant may have undertaken for the Libyan army could have affected the existence of such ties, and I am fortified in this view by the fact that no such argument appears to have been put before the First-tier Tribunal.
7. I therefore conclude that whilst the Panel undoubtedly erred in failing to consider the relevant sub-paragraph of paragraph 276 ADE of the Immigration Rules, this did not affect the outcome of the appeal.

Notice of Decision
8. The appeal is dismissed.
Anonymity is not directed

Signed Date

Deputy Judge of the Upper Tribunal