Tribunal decisions

The decision

IAC-FH-LW-V2

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/13277/2015

THE IMMIGRATION ACTS

Heard at The Civil and Family Court, Liverpool
Decision & Reasons Promulgated
On 26 January 2017
On 20 February 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE LATTER

Between

islam awad ali saeiti
(ANONYMITY DIRECTION not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr M Schwenk of Counsel
For the Respondent: Mr A McVeety, Home Office Presenting Officer

DECISION AND REASONS

1. This is an appeal by the appellant against a decision of the First-tier Tribunal (Judge Devlin) dismissing his appeal against the respondent's decision made on 11 November 2015 refusing his claim for international protection.

Background
2. The appellant is a citizen of Libya born on 21 October 1989. In brief outline the appellant's claim is that he attended the College of Economy at Benghazi University but stopped attending because of the revolution only one year into the course. He claims that he was shot in the thigh in 2011 while fighting against Gaddafi as part of the Omar Al Mukhtar Brigade. He joined the Libyan Army in 2012 working for the 204 Tank Regiment. He did not undertake military training nor did he engage in any fighting. In September 2014 he received a number of threats via telephone and Facebook. He told his captain in October 2014 that he did not want to fight and he agreed to help the appellant escape. He was driven to a port in Benghazi where he boarded a boat bound for Italy, remaining there for about two weeks. He then travelled to France where he stayed for six weeks. His agent intended to drive him to the UK but drove him to Belgium by mistake. He then returned to France and made a clandestine entry to the UK on 2 February 2015.
3. The appellant claimed asylum on arrival. His application was refused for the reasons set out in the reasons for refusal annexed to the respondent's decision letter. The respondent accepted that the appellant was a Libyan national but was not satisfied of his identity, that he had been a soldier in the Libyan Army or that he had been targeted by Ansar al-Sharia or the Shura Council. It was the respondent's view that he would be able to return to his home area and live as he had done in the past but he could choose to live elsewhere in Libya, for example Tripoli.
The Hearing Before the First-tier Tribunal
4. At the hearing before the First-tier Tribunal the judge heard oral evidence from the appellant and had documentary evidence in a bundle comprising 23 documents, indexed and paginated 1-307. The judge referred to AT and Others (article 15c; risk categories) Libya CG [2014] UKUT 318, setting out the country guidance at [46] of his decision. The judge then considered the points raised by the respondent in the reasons for refusal and the appellant's evidence on the issues raised. He set out his conclusions on credibility in [288] - [306]. He found that he could not be satisfied even to the lower standard of proof that any part of the appellant's account of the events leading to his departure from Libya was worthy of belief [303] and more succinctly in [306] the judge said that in short he did not believe a word the appellant said.
5. The judge then went on to consider three further issues arising from Mr Schwenk's submissions that there was no internal relocation alternative available in Libya, even if there were, there was no safe method or route of return and the appellant was at risk of indiscriminate violence within terms of article 15(c) [307]. The judge noted at [319] that internal relocation, the proposed method and route of return and article 15(c) risk were all matters in which findings had been made by the Upper Tribunal in AT and Others. These were adverse to the appellant's protection claim and he had to consider the submission made that he should depart from them.
6. The judge considered the Tribunal's findings in respect of risk at the point of return. In AT and Others the Tribunal held that there was no real risk of serious harm to the ordinary traveller arriving at either Tripoli International Airport or Benghazi Airport. However, in the light of the further information produced at the hearing set out at [326] - [327] the judge found that he would be justified in departing from the country guidance to the extent of finding that "in Sirte, Benghazi and Darnah, conditions were likely to make return a breach of article 15(c)" [330]. He concluded that the background evidence was not of sufficient strength or cogency to entitle him to depart to any greater extent from the Tribunal's findings. He noted that the airports in Tripoli and Benghazi were no longer operational and that he was justified in departing from the findings made in AT and Others about the risk of harm to the ordinary traveller arriving at either Tripoli or Benghazi Airport.
7. The judge then referred to para 11.2.1 of the Country Information Guidance which indicated that travellers alternatively used Al Abrag Airport, which was described as a small regional airport built to host four flights a day but now saw as many as 25 domestic and international departures within 24 hours. The judge also noted para 9.1.3 citing a passage from the UN Security Council, Report of the Secretary-General on the United Nations Support Mission in Libya, 16 May 2016 referring to the re-opening of Awbari Airport and the main route connecting Awbari with the north-east so facilitating the flow of goods and movement of people in addition to a gradual stabilisation of the overall situation. The judge found at [341] that there were safe points of return to Libya and there was nothing in the country background information to suggest that a person with the appellant's profile would be at risk from government security forces or from militias on arrival at either of these airports on account of the information required to be given him on arrival.
8. The judge then went on to consider the issue in respect of risk following return. He found that he was justified in departing from the findings in AT and Others in respect of travel overland in Libya to the extent of finding that the evidence suggested that a person travelling through an area controlled by Da'esh or through a Da'esh checkpoint would be at real risk. The judge then considered the Tribunal's findings in respect of internal relocation in the context of Mr Schwenk's submission that there was now no internal relocation alternative in Libya. He concluded that the country background information was not sufficiently precise or of sufficient strength and quality to justify such a blanket departure from the findings of the Tribunal in AT and Others save in so far as they related to Benghazi, Sirte and Darnah. In [379] the judge acknowledged that there would be areas of Libya to which it would be unduly harsh to expect a person to relocate but he was not satisfied that there was no area in Libya to which internal relocation would not be unduly harsh and that the evidence before him was simply not of sufficient specificity or detail to admit of such a conclusion.
9. The judge went on to consider the appellant's position in [381] - [396]. He said at [388] that he was not satisfied that the conditions in any part of Libya to which the appellant might be safely returned were such that it would be unduly harsh to expect him to relocate there. Accordingly, the appellant's protection claim was dismissed as was his human rights claim.
The Grounds and Submissions
10. In the grounds three issues are raised. It is argued firstly that, when the judge's decision is read as a whole, it appears to impose a requirement on the appellant to corroborate his account and in consequence the judge had applied the wrong standard of proof and his decision was unsafe. The grounds refer in particular to [180], [194], [238] and [269]. Secondly, it is argued that the method and route of return proposed by the respondent was unsafe and that the judge had misunderstood the appellant's argument. It was the judge's task to consider the route and method proposed by the respondent and to assess its safety and he had erred by combing the background evidence to find a route that did not pass through Tripoli or Benghazi. The grounds refer to the judgment of Sedley LJ in HH (Somalia) [2010] EWCA Civ 426 and argue that the judge should have considered the route and method of return to be via Tripoli or Benghazi and, if not on that basis, he should have called for information from the respondent as to her intentions.
11. Finally it is argued that the judge erred in his approach to internal relocation as indicated by his conclusion that he could not be satisfied that there was no place in Libya to which the appellant could safely be returned to which it would be unduly harsh to expect him to go. He had failed, so the grounds argue, to consider the test set out in AMM and Others [2011] UKUT 445 that in practice the issue of internal relocation needs to be raised by the respondent and it would then be for the appellant to make good an assertion that it would not be reasonable for him to relocate there. The grounds argue that the judge erred by requiring the appellant to demonstrate that there was no place he could return to in Libya and that he was only required to deal with any sites of internal relocation that had been put in issue by the respondent.
12. Mr Schwenk adopted the grounds in his submissions. On the issue of corroboration he accepted that the judge was entitled to comment on the absence of evidence but when the decision was read as a whole the judge, so he argued, had gone further than that and had been requiring corroboration, the grounds highlighting what Mr Schwenk described as the most egregious examples.
13. On the issue of internal relocation the judge referred to [396] submitting that the judge was wrong to put the onus on the appellant of showing that there was no place in Libya to which he could be safely returned and where it would be unduly harsh to expect him to return. The judge had failed to follow the guidance given in Daoud v Secretary of State [2005] EWCA Civ 755 at para 12 that in cases where internal relocation was raised it was a serious and frequently problematic issue requiring proper notice, proper evidence, proper argument and was governed by legal tests as set out in the Court's jurisprudence. His approach had been flawed in that it required the appellant to demonstrate that there was nowhere in Libya which was safe. The evidence ruled out a return to Benghazi and Tripoli. It was not for the appellant to show that there was nowhere he could return to but for the respondent to raise the issue of internal relocation which would involve ascertaining the proposed method and route. The judge should have proceeded, so he argued, on the basis of a return to Tripoli or Benghazi or, as this was not possible, to require the respondent to identify how the appellant could be returned and not to decide the issue for himself.
14. Mr McVeety submitted that it had been open to the judge in the circumstances of this appeal to identify from the evidence airports which were open. The judge gave careful consideration to the country guidance and had identified three areas to which it would be unsafe for the appellant to return, but it followed that the other areas would be safe areas. In the light of his findings on credibility the appellant had failed to show that it would be unduly harsh to expect him to return to those areas. He submitted that the judge had considered all the evidence with care. It could not be said that he had required corroboration. The passages highlighted by the appellant in his grounds must be read in context and did not support the argument that the judge was requiring corroboration as opposed to commenting on the absence of evidence that could reasonably be expected.
Assessment of the Issues
15. I must assess whether the judge erred in law such that the decision should be set aside. I shall deal first with the issue of whether the judge erred by requiring corroboration. The grounds refer to [238] which related to the issues arising from para 36 of the reasons for refusal, the objective evidence suggesting that Ansar al-Sharia were active in Libya long before October 2014 when the appellant said that they attacked his army camp. The respondent said that the background evidence showed that fighting between the army and Ansar al-Sharia had been ongoing since May 2014, whereas the appellant said that there was fighting in different parts of Benghazi, but it did not occur in his area or the centre of Benghazi until October 2014. The article relied on by the respondent referred to "intense fighting in Benghazi for the past week", that "Islamist groups ... seized the headquarters of the Libyan Army Special Forces in ... Benghazi" and that "an Islamist and Jihadist alliance announced the capture ... of the main military base in the ... city".
16. The judge commented that it could not logically be deduced from this that the appellant's base must have been attacked in July 2014, but it raised a real question as to how the appellant's base managed to remain aloof from the fighting when both the headquarters of the Libyan Army Special Forces and the main military base came under sustained attack. The judge noted that the appellant had not advanced any explanation for this. He then commented at [238]:
"In any event, it ought to have been possible for the appellant to have produced independent evidence to confirm his account. There is no reason to think that it would have been impracticable for him to have done so. Nor is there any obvious explanation for his failure to produce such evidence. Indeed, there is nothing to suggest that he made any attempt to do so."
I am not satisfied that this indicates that the judge was requiring corroboration as opposed to making a comment properly open to him in the light of the issues raised that independent evidence confirming the appellant's account could reasonably have been produced.
17. At [180] in the context of the appellant not producing his ID card, the judge said that neither had he produced any evidence to show that a document could be obtained on the basis of an applicant's say-so and the production of an ID card. This was in the context of whether the "criminal status certificate" produced by the appellant was inconsistent with his claim to have been a soldier before he left Libya in October 2014. The judge identified a number of discrepancies in this document, but it had been the appellant's evidence that when he attended for the certificate he produced an ID card that gave his profession as student. In this context it was reasonable for the judge to comment on the failure to produce the ID card or any evidence to show that the document could be obtained on the basis of an applicant's say-so and the production of an ID card.
18. The judge further commented that it seemed odd that a document certifying that an individual did not have a criminal record and which was especially designed "to be used for legal purposes" should be issued by a Government department described as the Department of Identity Investigation without any independent enquiries having been made to ensure that the applicant was who and what he claimed to be. This again does not indicate a requirement for corroboration but comments properly open to the judge about evidence that might reasonably have been produced.
19. Similarly, at [269] dealing with the evidence relating to the kidnap of the appellant's brother where the appellant had produced what was described as a "report for brother's kidnap and translation", the judge noting that the letter could not stand consistently with the appellant's answers at interview to Q140 and Q143. Further at Q150 the appellant had been asked how he got the document and he replied that it was sent by his other brother from Tunisia. In this context at [269] the judge commented that the appellant had not produced any independent evidence of provenance, had not produced the envelope in which the document was contained, nor had he produced any statement or letter from his brother in Tunisia confirming postage or how he came by the document in the first place. This again was a comment properly open to the judge.
20. A different criticism is made of the judge in respect of what he said at [194]. It is argued that the judge seemed to be saying that if a document is unreliable then it is evidence which is fraudulent. At [182] - [194] the judge was considering a medical certificate produced by the appellant. The judge identified his concerns about the report, the error about the appellant's age and the lack of express reference to a gunshot wound, and at [194] said that if he could not be satisfied that the report related to the appellant or that it evidenced his claimed injury, its submission would be damaging to the appellant's general credibility. This was a comment the judge was entitled to make because of the unreliability of the document without the need for a specific finding that the document was fraudulent. I am not satisfied that these examples taken singly or cumulatively indicate that the judge was requiring corroboration or applying the wrong standard of proof as opposed to making comments properly open to him about the lack of evidence that could reasonably have been produced. When the judge's decision is read as a whole, I am not satisfied that he erred by requiring corroboration as opposed to assessing the evidence to see the extent to which it substantiated the appellant's claim.
21. I now turn to the issues relating to the method and route of return and internal relocation. The issue of internal relocation became relevant in the context of humanitarian protection. The appellant's evidence was rejected on the issue of whether he would be at real risk of serious harm for a Convention reason on return to Libya. The issue then arose whether he was entitled to humanitarian protection and would be at risk under article 15(c). To succeed in this part of his claim he would need to show that the country guidance in AH and Others either did not apply to him in his particular circumstances or that there were proper grounds for departing from it. In AT and Others the Tribunal had held that there was not such a high level of indiscriminate violence in Libya within the meaning of article 15(c) to show that substantial grounds existed for believing that an individual would, solely by being present there, face real risk which threatened his or her life or person. The argument as advanced by Mr Schwenk was that the position had changed to such an extent that there was no internal relocation alternative available in Libya [307].
22. Having considered the background evidence the judge found that he would be justified in departing from the findings made in AT and Others in respect of article 15(c) to the extent of finding that in Sirte, Benghazi and Darnah conditions were likely to make return a breach of article 15(c) [330]. The judge dealt with the position in respect of internal relocation further at [364] - [380]. He noted again at [364] the submission that there was no internal relocation alternative in Libya. The judge rejected that assertion save to the extent that there would be areas of Libya to which it would be unduly harsh to expect a person to relocate, but he was not satisfied that there was nowhere in Libya to which internal relocation would not be unduly harsh. This finding at [379] and the comment at [396] that the judge could not be satisfied that there was no place in Libya to which the appellant could safely be returned to which it would be unduly harsh to expect him to return, was not an indication that the judge was applying the wrong test to internal relocation, but was an understandable way of expressing his conclusion when the issue of internal relocation was framed by the initial submission that there was no internal relocation alternative in Libya.
23. The judge accepted that the appellant could not be returned to Benghazi, Sirte or Darnah and said at [383] that he was not satisfied that there were no areas of Libya to which the appellant could be safely returned or that he cannot travel to them without real risk of harm. The fact that the judge had identified areas where the appellant could not relocate inevitably meant in the circumstances of this case that the areas not identified were areas to which he could safely return. When considering the facts of the appellant's situation, he took into account that he had comprehensively disbelieved the appellant's account. He recognised that the socio-economic conditions in Libya gave cause for serious concern, but was entitled to make the point that the appellant's immediate and extended family remained in Libya and there was no satisfactory evidence before him as to where they were currently located. In these circumstances the judge could not be satisfied that the appellant would be without the benefit of family links in Libya.
24. The appellant had claimed to be a member of the Al-Saeiti tribe and there was no evidence to suggest that he would not be able to obtain support from his tribe or that they would be unwilling to provide him with any form of social security net. The appellant was young, healthy and apparently resourceful and the judge accepted that, whilst the appellant would experience a lowering of living standards, he could not be satisfied that he would face economic destitution or existence below at least an adequate level of subsistence. He noted the evidence that IDPs were staying in shelters ranging from rented accommodation to schools and factories and empty buildings, commenting that there was no evidence to suggest the appellant might fall into the lower end of this scale.
25. The judge saw no reason to think that the appellant would be denied access to resources or protection in any area to which he might safely be returned and that there was nothing in his profile or connection that would suggest that. He also acknowledged there were difficulties with the provision of medical care, but the evidence was insufficient to lead to a finding that the appellant would be denied access to adequate medical care in any place to which he might return. In summary, when assessing internal relocation the judge considered the appellant's personal circumstances and what his position would be on return and reached a conclusion properly open to him for the reasons he gave.
26. This leaves the issue of whether the judge erred in the way he approached the issue of the method and route of return. The judge did indicate serious misgivings about the propriety of considering the risk based on the method and route of return in the particular circumstances of this appeal at [308]. But having considered the authorities Mr Schwenk had cited in his skeleton argument to the First-tier Tribunal and also in his submissions in support of this appeal, GH (Iraq) v Secretary of State [2006] INLR 36, HH (Somalia) v Secretary of State [2010] Imm AR 563 and AMM and Others (conflict; humanitarian crisis; returnees; FGM) Somalia CG [2011] UKUT 445, the judge decided that it would be a proper course of action in the context of this appeal to consider whether there was a risk arising from the proposed method and route of return.
27. The judge accepted that Tripoli and Benghazi Airports were no longer operational and that in these circumstances he was justified in departing from the findings made by the Upper Tribunal in AT and Others about the risk of harm to the ordinary traveller arriving either at Tripoli International Airport or Benghazi Airport. He then went on to consider the evidence, to which I have already referred, that travellers were using Al Abrag Airport and that there was evidence that Awbari Airport had been reopened. In the light of this evidence it was open to the judge to find that there were safe points of return in Libya.
28. At the heart of Mr Schwenk's submission on this issue is the contention that in the reasons for refusal at para 49 the respondent identified Tripoli as a place to which the appellant could be returned, although as an example rather than an assertion that it would be the only place. However, by the time the matter came to be heard by the First-tier Tribunal, events had moved on and the judge accepted that the appellant could not be returned either to Benghazi or to Tripoli. In HH (Somalia) the issue of safety during return was considered at length by the Court of Appeal, together with the issue of what obstacles could properly be regarded as technical obstacles within article 8 of the Qualification Directive. At [84] Sedley LJ said:
"... Our provisional view, in the light of the Directive, is that if there is a real issue on safety on return the Secretary of State must engage with it in his decision on entitlement to protection, and his conclusion can be the subject of appeal. In any case in which the Home Secretary did not deal with safety during return (because he did not consider that any issue arose) but where the appellant raises a cogent argument that there might not be a safe route of return, the appeal tribunal would have to deal with that issue, possibly after calling for information from the Home Secretary as to his intentions. In any event, as it seems to us at present, the decision on entitlement must be taken within a reasonable time and cannot be left until the Home Secretary is in a position to set safe removal directions."
29. The question of calling for information from the Home Office as to her intentions was raised as a possibility. In this appeal the issues of safety on return and safety of the method and route of return had been raised by the appellant and in these circumstances, I am not satisfied that it is arguable that the judge erred in law by reaching a decision on those issues on the basis of the evidence before him. There was no obligation on the judge to call for further information from the respondent, when there was ample evidence before him on which he could reach a decision on that very issue. There was therefore no need for him to have recourse to calling for further information from the respondent.
30. I have been referred to the judgment of the Court of Appeal in Daoud, but the point being made by Sedley LJ in [12] of that judgment is that internal relocation had to be properly considered and could not be regarded by the respondent as "a throw-away submission in case other arguments fail". It was described as a serious issue, which of course it is, requiring proper notice, proper evidence and proper argument. I am satisfied that this is what the case in the present appeal. The appellant raised the issue of whether internal relocation was open to him in respect of a risk under article 15(c) and raised arguments about the safety of his return in the light of the deteriorating situation in Libya. The judge dealt with those issues by finding that there was a proper basis in the evidence for departing from the country guidance. Having made that decision, the judge went on to assess whether the appellant in his circumstances could return in safety to other areas and whether it would be unduly harsh for him to do so. I am satisfied that he reached findings and conclusions on these issues properly open to him after a careful analysis of the evidence.
31. In summary, the grounds do not satisfy me that the First-tier Tribunal erred in law.

Decision
32. The First-tier Tribunal did not err in law and it follows that the decision to dismiss the appeal stands. No anonymity direction was made by the First-tier Tribunal.

Signed H J E Latter Date: 17 February 2017

Deputy Upper Tribunal Judge Latter