Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/12201/2015

THE IMMIGRATION ACTS

Heard at Stoke
Decision & Reasons Promulgated
On 4 November 2016
On 12 April 2017
Prepared 6 November 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE DAVEY

Between

AA
(Anonymity ORDER CONTINUED)
Appellant
and

THE Secretary of State FOR THE Home Department
Respondent

Appearances:
For the Appellant: Mr A Moran
For the Respondent: Mr C Bates, Senior Presenting Officer

DECISION AND REASONS
1. The Appellant, a national of Syria, appealed against the Respondent’s decision, dated 8 July 2015, in which she refused a claim on asylum and Humanitarian Protection grounds, under Articles 2 and 3 ECHR and in respect of Article 15(c) of the Qualification Directive.
2. On 4 November 2016 I found there was an error of law in the decision of First‑tier Tribunal Judge M Robertson who, on 5 May 2016, had dismissed the Appellant’s appeal on all grounds. Later the same day I heard further submissions it being agreed that I could remake the case for the Original Tribunal’s decision could not stand.
3. The Appellant left Syria with his family in September 2012 and travelled to Libya with a work visa. The Secretary of State accepted that the Appellant is a Syrian national. The Secretary of State accepted the Appellant’s wife’s is a Libyan national but also a dual Syrian national. They have two children, L (dob 19 April 2011) and A (dob 25 March 2015 It is clear the Respondent accepts the Appellant can not return to Syria (RFRL 34).
4. The basis of the asylum claim was that the Appellant had attended demonstrations in Syria and faced difficulties such that he had fled Syria and could not return. The Respondent rejected the basis of claim but accepted the Appellant faced the real risk of ill-treatment as a failed asylum seeker or forced returnee. The Appellant also claimed to have been facing difficulties in Libya because, although he had not been threatened himself, his car had been confiscated at gunpoint and whilst able to recover the car in due course, he believed that circumstances were changing in Libya such that he faced risk remaining there. The claim of risk in Libya was generally founded upon the poor level of political stability and violence that was taking place in that country. The Appellant also argued that there was a high level of indiscriminate violence in Libya within the meaning of Article 15(c) of the Qualification Directive so as to give rise to substantial grounds for believing that an individual would, solely by being present there, face a real risk which threatened his life or person.
5. The Appellant’s evidence was that the state of Libya is a state only in name but that the functions of the state, law and order, justice and public security, are simply in the control of militias, largely autonomous, with an alignment to the state but everything they do depends on what they want to do or what they are paid to do. It is clear that there are as many as 40 militias in the Tripoli area and it is clear from the expert reports that there is no independent form of state control other than the militias. The militias are in effect the state actors and they are the source of protection and the source of threat. The Appellant claimed to face generalised danger and in particular because he was an alien Syrian, without local connection with any tribe or militia, and that there was a measure of paranoia amongst militia controlling local areas and doing so with tribal bias. There was therefore typically a risk of kidnap and exploitation for ransom and being targeted. Unless a person had a strong tribal background and network there was effectively no protection. The Appellant believed that the circumstances in Libya were deteriorating and that state protection simply did not exist. The inability of central authority to exercise control meant that without clan, family and tribal connections in Libya there was effectively no one to turn to for protection. The Appellant, by reference to articles within the background evidence, argued that effectively Libya and Syria had cut their ties and that there was hostility in Syria towards the Libyan regime and vice versa.
6. The Appellant says that even returning now to Tripoli, bearing in mind the tribal and militia clan controls, presented a real risk. and thus the evidence of Dr George and Professor Joffe given in AT and others (Article15c: risk categories) (CG) 2014 UKUT318 showed that in effect there was no adequate protection. The Appellant relied upon the fact that his wife had been raised in Libya before her departure for Syria, but with the tribal clan like system breaking down general friendships were not enough to amount to protection or obtain it. It was said that quite simply looking at this matter day to day, through things like the closure of the airports, cancellation of international flights, the presence of militia at Benghazi and Tripoli airports, meant that the whole country was in effect in a state of flux and widespread indiscriminate violence was such that people were not flying to Libya or able to safely enter the country . Mr Bates submitted that great caution should be exercised towards the assessment of risk to the Appellant in Libya and that there were no Convention reasons to justify it nor was the state of affairs sufficient to identify an Article 15(c) risk under the Qualification Directive, nor were the circumstances such that there was the serious risk of ill-treatment.
7. Reliance was placed on behalf of the Appellant on his statement put before the First‑tier Tribunal as well as inviting me to conclude his evidence was credible, at one with the background evidence and the evidence supported his fears of ill-treatment and the lack of effective protection to which he could have recourse. Thus the Appellant said that it was the strength of tribal connections which was really effectively the only guarantor of safety and that the background evidence and the overall position meant that Syrians were facing a real risk of proscribed ill-treatment on return or thereafter in Libya.
8. The Appellant is not in the United Kingdom lawfully. The fact is that British government advice is against travel to Libya and the position has not materially improved. Whilst there is no complete ban on travel to Libya, it is quite plain the difficulties of arriving there, either at Benghazi or Tripoli or other ports and in the circumstances there is clearly serious risk of being seized, made a hostage and exploited.
9. It does not seem to me that the Appellant is better protected for being a Syrian national. The background evidence in 2016 strongly suggests there is systematic discrimination, abduction, random detention by armed groups against vulnerable groups including Syrian refugees but there is nothing to suggest there is a welcome to Syrian refugees or that he benefits particularly from being married to a dual national. In addition to the political instability, the fighting against ISIL (Daesh) , food shortages, the collapse of the health system and economy, (see EU Commission report 2016)
10. On the evidence I find the Appellant is part of a particular social group,namely Syrian aliens who do not have status to remain in Libya and no identifiable protector, that the Appellant is at risk of violence from militias or clan based tribal groups and that he has effectively no protector to turn to.
11. I take into account in the papers before me the Country of Origin Report on Libya and the Operational Guidance Note. In addition I have had regard to the case of FA (Libya: Article 15(c)) Libya CG [2016] UKUT 413 (IAC) which helpfully sets out a good deal of the background information that formed the basis of the decision in AT and Others (Libya) [2014] UKUT but updates the position in terms of conditions in Libya. The sequence of events suggests that the Appellant did leave Libya as the public safety issues arose and Libya sunk deeper into civil war and anarchic chaos. The fighting and its intensity is not to be denied and it is plain that the Appellant is greatly anxious for the safety of his wife and child, not least in the context of them having escaped from situations deteriorating in Syria. The Appellant found that he could not work, he could not protect his family and he could not protect himself and the longer he stayed in Libya the greater the risks would be. I conclude that the background evidence shows there is no effective protection provided by the Libyan state to which the Appellant may have recourse. Given the need for clan based or militia protection which is not available elsewhere in Libya to the Appellant I find internal relocation is not a reasonable or even real option. I find that the Appellant as a Syrian alien, even if he were able to seek protection there, is unwelcome and would be perceived as a further burden on the resources of a hard pressed nation. I find he is part of a vulnerable group at risk in Libya. The existence of his brother in law, who has no identifiable source of protection, does not have any relevance to the issues.
12. In reaching these conclusions I found the Appellant a credible and consistent witness of fact. I found his evidence consistent with the background evidence. I have carefully considered the Respondent assessment of risk in Libya. But that assessment was in July 2015 and the evidence has moved on. The only evidence, which I have, suggests the position is worse and more unstable as the fight against ISIL continues. It is also clear that having ‘categories of people at risk’, as in AT, was not intended to be absolute, definitive or prescriptive: It is a fact specific issue of risk for this Appellant on the evidence before me, not the Respondent, which I have to assess. Further on the evidence I do not accept the Appellant’s brother in law is ‘... a support network in Libya’ or has any powers or means to protect the Appellant. Nor do I accept the somewhat easy assumption that because the Appellant had worked as an IT salesman in Libya in 2002 or has a valid residence permit means, in the changing situation of public safety, that he would not be at risk on return.
13. I further concluded that, as an alien and identifiably not a Libyan, there is the real risk of indiscriminate violence and that the Appellant has no demonstrable group to provide protection in the event of him being seized or ill-treated. I find he would be effectively in a state where there is no sufficiency of protection to which recourse can be had. In these circumstances I find the Appellant did not have to wait until he was actually ill-treated and the lack of actual ill-treatment is not qualified by the fact that he left leaving his wife and child behind in the hope that they would be all right. Rather it seems to me the Appellant took the only sensible course and that he was at real risk of indiscriminate violence without tribal protection, without a militia or clan to guard his interests.
14. In the circumstances, I find there is the real risk of Article 3 ECHR proscribed ill-treatment from rival militias and armed groups. I find there is a real risk of being seized, held to ransom, kidnapped in general terms and physically mistreated by militias in and around Tripoli, Benghazi and other Libyan cities/towns. It does not seem to me the fact that the Appellant’s wife has dual nationality is any protection for him. On the contrary it makes him more vulnerable in his fears for her and their children. She certainly does not have the force of any protector or other means to recover a situation if for example the Appellant was seized and held to ransom or made a hostage.
15. I therefore find the Appellant has discharged the burden of proof of showing that he is at the real risk of Article 3 ill-treatment and the risk of serious harm. It is clear that if Humanitarian Protection is engaged then quite simply in the light of the deteriorating position in Libya that there is no effective protection to which he could have recourse. Similarly there is nothing to suggest internal relocation is either possible or a reasonable option.

DECISION
The appeal is allowed under the Refugee Convention, Article 3 ECHR and the Qualification Directive.

ANONYMITY ORDER
The anonymity order previously imposed is continued.
No report of these proceedings shall directly or indirectly identify the Appellant or any member of his family. This direction applies to the Appellant and Respondent. Failure to comply with this direction could lead to a contempt of court.

Signed Date 24 March 2017

Deputy Upper Tribunal Judge Davey

P.S. I greatly regret the delay in promulgation. Although the taped typing of the remaking of the Original Tribunal’s decision became separated from the main file, which was in turn miss-placed along with the error of law taped decision, it was belatedly recovered