Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: IA/11676/2015
IA/11677/2015
IA/11678/2015
IA/11679/2015
IA/11680/2015
IA/11681/2015
IA/11682/2015

THE IMMIGRATION ACTS

Heard at Glasgow
Decision & Reasons Promulgated
on 2nd August 2016
on 16th August 2016

Before

UPPER TRIBUNAL JUDGE MACLEMAN

Between

MMAM and OTHERS
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

For the Appellants: Mr M Shoaib, of Shoaib Associates
For the Respondent: Mrs M O'Brien, Senior Presenting Officer

DETERMINATION AND REASONS

1. The appellants appeal against a decision by First-tier Tribunal Judge Farrelly, promulgated on 3rd November 2015.

2. The grounds state that "the first and perhaps one of the more significant material errors of law" is the fact that throughout the determination the judge refers to the appellant rather than the appellants which suggests a primary focus on the first appellant, which "must be an error where one of the minor children potentially qualifies for leave ? under paragraph 276ADE [of the Immigration Rules] / section 117B(6) of the 2002 Act".

3. This is nitpicking. The judge notes in his first paragraph that the appellants are husband, wife and their five children, and says that for convenience he will refer to the first appellant as the appellant. He directs himself on the law regarding the best interests of children at paragraphs 31 to 34, and on section 117 and further case law at paragraphs 35 to 39. His determination is very much concerned with the children's position and with the seven year yardstick. The grounds on this point are not well-founded.

4. The grounds assert at paragraph 5 the judge speculated at paragraph 19, where he thought that the first appellant's reluctance to claim asylum was because it would affect his ability to work.

5. It had been put to the appellant in cross-examination that he would claim asylum if the present proceedings were unsuccessful.

6. The grounds say that the judge's comment is speculative and unsupported by evidence or reasons. However, the appellants elected not to make a direct protection claim but to submit an application for leave to remain, outside the Immigration Rules, on the grounds that there were no flights to Libya, and that they should be allowed to remain "until the circumstances of their home country are improved and safe". They based their arguments in the First-tier Tribunal on Articles 3 and 8 of the ECHR. The case was poorly focused but largely based on travel difficulties, general risk, and the interests of the children. The grounds show no legal error in the judge's comment that a factor in the first appellant's reluctance to claim asylum was that it would affect his ability to work. The point is so obvious that it would have been naive to reach any other conclusion.

7. The grounds found on Foreign and Commonwealth Office advice against travel to Libya. However, travel advice to British citizens is a long way from a statement that all Libyans are entitled to refugee status in the UK; a primary case which the appellants did not elect to make.

8. Mr Shoaib's final submission was that the appellant could not return because having once lectured in a university in Libya on the ideology of the former regime, he would be at risk. That is precisely an asylum claim, which he has so far declined to advance in the prescribed form. The reason his case is difficult to disentangle is because he is playing it as a tactical and procedural game, at least verging on abuse of a system designed to give international protection to those who need it.

9. The children in this family are being brought up in a highly educated and caring background. The submissions on their behalf, both in the FtT and in the UT, amount to the proposition that no family with children may be expected to return to Libya, because of the general difficulties there. There is nothing in the grounds which amounts to more than a generalised disagreement with the judge's final assessment, which took full account of the best interests of all the children, including the one who meets the seven year yardstick.

10. If any Libyan family may reasonably be expected to return, this one can.

11. The appellants do not show that the decision of the First-tier Tribunal Judge materially errs in any point of law. That decision shall stand.

12. Anonymity was granted in the FtT. The point was not addressed in the UT. The order is maintained. Unless and until a tribunal or court directs otherwise, the appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of their family. This direction applies both to the appellant and to the respondent. Failure to comply with this direction could lead to contempt of court proceedings.

15 August 2016
Upper Tribunal Judge Macleman