Tribunal decisions

The decision

IAC-AH-DN-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/13006/2015

THE IMMIGRATION ACTS

Heard at HMCTS Employment Tribunal, Liverpool
Decision & Reasons Promulgated
On 18th January 2017
On 9th February 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE JUSS

Between

Mahmoud [E]
(ANONYMITY DIRECTION not made)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Mr M Schwenk (Counsel)
For the Respondent: Mr C Bates (HOPO)

DECISION AND REASONS

1. This is an appeal against the determination of First-tier Tribunal Judge Mathews, promulgated on 18th July 2016, following a hearing at Stoke-on-Trent on 29th June 2016. In the determination, the judge dismissed the appeal of the Appellant, whereupon the Appellant subsequently applied to, and was granted, permission to appeal to the Upper Tribunal, and thus the matter comes before me.
The Appellant
2. The Appellant is a male, a citizen of Libya, who was born on 21st February 1988. He appeals against the decision of the Respondent dated 22nd October 2015, refusing his claim for asylum and for humanitarian protection.
The Appellant's Claim
3. The Appellant's claim is that he arrived in the UK in January 2014, with a valid student visa, and then applied for asylum in May 2015, even though he had travelled from Libya on his own passport and has previously visited the UK with a student visa in July 2012 and in February 2013.
4. The Appellant's current claim, however, is that he has attended student demonstrations in Libya and that his political activity has become known to people there because his father and brother were approached by militia members giving the Appellant's name and they were both threatened, and his brother was even kidnapped.
The Judge's Findings
5. The judge accepted that the Appellant had attended demonstrations in the UK but not that he had any significant role as an organiser. The judge dealt with the suggestion that the Appellant's UK activities might have filtered back to Libya via spy activities and media coverage but there was no adequate evidence of any such media reports or social media coverage (see paragraphs 22 to 23).
6. The judge also provided the country guidance case of AT and Others CG [2014] UKUT 318 which confirms that there is some difficulty for returnees in that the airport in Tripoli has now closed and the Amnesty International Report does refer to risks to civilians from internal conflict that continues (see paragraph 31). Nevertheless, it was the judge's view that the Appellant could depart voluntarily back to Libya (see paragraph 36). The appeal was dismissed.
Grounds of Application
7. The grounds of application are twofold. First, that it has not been established that there is a safe route of return for the Appellant to Libya given that the airport in Tripoli has closed down. Second, that there is a risk of indiscriminate violence to the appellant in the future were he to be returned there.
8. On 25th August 2016, permission to appeal was granted on the specific basis that the return of the Appellant would not be feasible given that the airport in Tripoli has closed down. The grant of permission did, however, also suggest that the second ground referred to also remained arguable should the Appellant's representative wish to argue it at this hearing. A Rule 24 response was entered on 2nd September 2016 by the Respondent Secretary of State.
The Hearing
9. At the hearing before me on 18th January 2017, Mr Schwenk submitted that he would wish to argue both grounds and he referred to his skeleton argument before the First-tier Tribunal, especially at pages 6 to 7, which refers in detail to extracts of Lord Justice Sedley's judgment in HH (Somalia) [2010], where his Lordship dealt with the question of viable return to the country of origin, pointing out that,
"We do think that, in a case in which the applicant raises a cogent argument within his statutory appeal that there may not be a safe route of return, the Secretary of State must address that question and the issue must be considered as part of the decision on entitlement" (see paragraph 81 of the judgment).
Mr Schwenk quite properly pointed out that this was the obiter dictum, but nevertheless it had been followed by the Tribunal in other cases and the point remained a good one. If the Secretary of State could not guarantee safe passage then the fact remained that the Appellant could not be forcibly returned, and any suggestion that he could make a "voluntary departure" was irrelevant and not lead to circumstances where this Appellant did not wish to return to Libya voluntarily, and in that event the Appellant should not be left in a limbo but his asylum claim should be granted.
10. Secondly, some two months after this decision was promulgated on 18th July 2016, the Upper Tribunal handed down a new country guidance case promulgated on 7th September 2016, namely, FA (Libya: Art. 15(c)) [2016] UKUT 00413. In this case, the vice president of the Tribunal took the view that
"There have been numerous changes in Libya since November 2013, and that they are sufficient to render unreliable the guidance on Article 15(c) given in AT. Amongst these changes are the cessation of direct flights from the United Kingdom, the ebb and flow of fighting in Libya, the rise of Daesh, and the issue of numerous reports and advice, not least by the Foreign and Commonwealth Office." (Paragraph 11).
11. The Vice President went on to say that the proper way now to deal with these cases was that "They need guidance in the form of instructions to determine each case on its own evidence ...", until such time that another country guidance case which was more up-to-date, was handed down. Mr Schwenk submitted that this was the current prevailing situation. What this meant was that a reliance just on AT and Others could not properly deal with the situation that presently exists and there had to be a determination of the issues in this appeal on the basis of instructions and further evidence because the current guidance was out of date and lead to incorrect conclusions.
12. Thirdly, implicit in the case of FA (Libya) is the recognition that the "rise of Daesh" means that indiscriminate violence now looms large in a way that it did not previously and so this means that this particular issue must also now be carefully looked at, in a way that it could not have necessarily been done under the country guidance case of AT and Others.
13. For his part, Mr Bates submitted that he would have to accept that FA (Libya) does recognise that there has been a change from November 2013 such that the early country guidance case is now unreliable. However, Judge Mathews was applying the law as it stood then and the issue before this Upper Tribunal was whether the judge had correctly applied the law as it then existed. Two months were to go by before the Upper Tribunal promulgated the decision in FA (Libya), such that it was not before Judge Mathews, and therefore he would not have been able to take into account. His failure to do so could not amount to an error of law.
14. In reply, Mr Schwenk submitted that even if that is the case, the existence of the fact that the airport at Tripoli is closed, although a matter recognised in the early country guidance case of AT and Others, is given a fresh analysis in the vice president's judgment in FA (Libya), and it still makes it implausible for the Appellant to return back to Libya if Tripoli Airport itself is closed. The suggestion that he may decide to "depart voluntarily" (paragraph 36 of the determination) was not an answer to the predicament facing the Appellant.
Error of Law
15. I am satisfied that the making of the decision by the judge involved the making of an error on a point of law (see Section 12(i) of TCEA 2007) such that I should set aside the decision. My reasons are as follows.
16. First, the fact that there existed cogent evidence of the lack of a safe route of return to Libya at the time of the decision by Judge Mathews meant that it behold the Secretary of State to give consideration to how the Appellant may otherwise realistically return, failing which, it was not proper for the determination to conclude that the Appellant may decide to "depart voluntarily". The judgment of Sedley LJ in HH (Somalia) is clear on this point and it has been followed by the Tribunal on other occasions.
17. Second, even in terms of the earlier country guidance case of AT and Others, which the judge gives proper regard to at paragraph 31 of the determination, it remained the case that the Appellant could not have reasonably returned because there was recognition that the airport in Tripoli has now closed and the Amnesty International Report refers to risks to civilians. Indeed, Judge Mathews had properly took the view that "The evidence shows some measure of change" (at paragraph 31). This is indeed a matter that is also recognised in precisely the same way by the vice president in FA (Libya). In the circumstances, it was an error to then conclude that the evidence before the Tribunal at the first instance did not justify the judge in departing from the country guidance case (see paragraph 36).
18. Finally, there is the decision in FA (Libya) itself. This not only recognises the fact that return is untenable at the moment, but also observes that the rise of Daesh means that the situation is now so volatile as to require another country guidance case, in the absence of which the matter has to be determined on the evidence and under express instructions from the Respondent authority. The decision therefore, is unsafe in that respect.
19. I also accept the observation made in Mr Schwenk's skeleton argument (at paragraph 4) where the Foreign and Commonwealth Office travel advice makes it clear (at paragraph 3.2.16) that "ports and airports, and oil and gas installations have also been targeted" which means that the situation is not simply a transitory one in Libya. For all these reasons, this matter needs to be returned back to the First-tier Tribunal so that it is reheard again on the basis of the latest evidence and without a strict adherence to the earlier country guidance case of AT and Others, which now has to be read in the light of FA (Libya) as directed by the vice president of the Tribunal.
Notice of Decision
20. The decision of the First-tier Tribunal involved the making of an error on a point of law such that it falls to be set aside. I set aside the decision of the original judge. I remake the decision as follows. This appeal is allowed to the extent that it is remitted back to the First-tier Tribunal, to be heard by a judge other than Judge Mathews, on the basis of Practice Statement 7.2(b).
21. No anonymity direction is made.

Signed Date

Deputy Upper Tribunal Judge Juss 7th February 2017