Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/00410/2015

THE IMMIGRATION ACTS

Heard at: Manchester
Decision & Reasons Promulgated
On: 16th November 2016
On: 30th November 2016

Before

UPPER TRIBUNAL JUDGE BRUCE

Between

MS
(Anonymity direction made)
Appellant
And

The Secretary of State for the Home Department
Respondent

For the Appellant: Ms Hussain, Lei Dat Baig Solicitors
For the Respondent: Mr Harrison, Senior Home Office Presenting Officer

DECISION AND REASONS

1. The Appellant is a national of Libya born in 1985. He appeals with permission1 the decision of the First-tier Tribunal (Judge Evans) dated 30th March 2016 to dismiss his appeal against a decision to refuse to grant protection.

Anonymity Order

2. This case concerns a claim for international protection. Having had regard to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 and the Presidential Guidance Note No 1 of 2013: Anonymity Orders I therefore consider it appropriate to make an order in the following terms:

"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 his family. This direction applies to, amongst others, both the Appellant and the Respondent. Failure to comply with this direction could lead to contempt of court proceedings"

Background and Matters in Issue

3. The Appellant arrived in the United Kingdom in July 2014 with valid leave to enter as a student. On the 17th April 2015 he claimed asylum.

4. The basis of the Appellant's claim for international protection was that he was being pressured into joining a local militia in his home town of Al-Rojban. Since he did not wish to fight he was being perceived as an opponent of this militia, and by extension the government in Tobruk with whom they are aligned. He feared serious harm as a result. This claim was disbelieved by the Respondent and so too by Judge Evans, who did not accept that the Appellant had discharged the burden of proof, even to the lower standard. The Appellant had obtained permission to appeal against the reasoning in the determination but before me Mr Hussain withdrew reliance on those grounds. The findings of Judge Evans in respect of the Appellant's asylum claim are therefore undisturbed.

5. The sole remaining issue is whether or not the First-tier Tribunal erred in its approach to Article 15(c) of the Qualification Directive. The appeal took place in March 2016, some time after the Upper Tribunal had taken the evidence in the country guidance of AT & Others (Libya) CG [2014] UKUT 318 (IAC). Although the Appellant was unrepresented and did not himself provide any country background material he did ask that the Judge take account of the changed situation in Libya. The Judge declined to do so, applying and following instead the guidance in AT & Others. Before me Mr Hussain placed reliance on the decision in FA (Libya: Article 15(c)) Libya CG [2016] UKUT 00413 (IAC) to the effect that until further country guidance is issued, decision-makers should determine the matter on the basis of the individual's case. AT & Others is no longer to be followed. Before me Mr Harrison pointed out that Judge Evans can hardly have known about FA since it came out three months after the decision in the instant case, but conceded that consideration should have been given to whether or not there had been a material change in circumstances in Libya at the time. The parties were therefore in agreement that the First-tier Tribunal had materially erred in its approach to Article 15(c) and that the decision, insofar as it related to humanitarian protection, needed to be remade.

The Re-Made Decision

Legal Framework

6. Article 15(c) of the Qualification Directive (read with Article 18) provides that member states must grant subsidiary protection where it is established that there is a "serious and individual threat to a civilian's life or person by reason of indiscriminate violence in situations of international or internal armed conflict.

7. In Elgafaji (C-465/07) the European Union Court of Justice considered the meaning of the term "individual" in Article 15(c). It held that it did not require a specific (ie targeted) threat to the person concerned, but rather to a general threat to that civilian's life or person. The Article will be engaged where the degree of indiscriminate violence characterising the armed conflict taking place reaches such a high level that substantial grounds are shown for believing that the individual claimant, returned to the relevant country or region, would, solely on account of his presence on the territory of that country or region, face a real risk of being subject to the serious threat. The greater the vulnerability of the individual concerned, the lower the level of indiscriminate violence will need to be; conversely the more robust the individual, the greater the conflict. The starting point for any evaluation of Article 15(c) must therefore be the personal characteristics of the individual in question.

Appellants' Circumstances

8. It is not in issue that the Appellant is from Rojban. This is a small town close to Zintan, approximately 80 km south east of Tripoli and 60 km from the Tunisian border. He is a member of the al-Rujban tribe, is of Arab ethnicity and is a Sunni Muslim. He is today aged 31 and has no known health complaints. He is single. He previously held employment as an office administrator with the Libyan government. He speaks fluent Arabic and some English. He has completed his military service. He still has family members in Rojban.

Country Conditions

9. The Respondent's current position on the situation in Libya is set out in the June 2016 Country Information and Guidance report Libya: Security and Humanitarian Situation. This guidance expressly accepts that the situation has deteriorated since the decision in AT & Ors: [2.3.14]. There is consensus amongst reporting agencies including UNHCR, the United States' State Department, the FCO, Amnesty International, UNOCHA and Human Rights Watch (HRW) that there is widespread violence across the country. A flavour of that evidence is found at 9.1.1 where the 2016 HRW report is cited:

'Amid tenuous United Nations-led peace talks, Libya's political and security crisis deepened as two rival governments competed for legitimacy, control of vital institutions, and international support. Despite some factions signing a political deal in December, there was no end in sight to the crisis. As armed clashes continued, the country edged towards a humanitarian crisis, with almost 400,000 people internally displaced and increasing disruption to basic services, such as power and fuel supplies.

'Forces engaged in the conflict continued with impunity to arbitrarily detain, torture, unlawfully kill, indiscriminately attack, abduct and disappear, and forcefully displace people from their homes. The domestic criminal justice system collapsed in most parts of the country, exacerbating the human rights crisis. Armed groups that pledged allegiance to the extremist group Islamic State (also known as ISIS) continued to commit serious human rights abuses, including unlawful killings and summary executions, and succeeded in expanding and gaining control over towns in the centre of the country, including Sirte.

10. And at 7.1.2:
A report published in September 2015 by the United Nations Office for the Coordination of Humanitarian Affairs (UNOCHA) also noted the fragmented nature of the conflict:
'The two main Libyan political factions that emerged post-revolution, the GNC and the HoR, are often described as "Islamists" and "liberals" respectively. The former is largely represented today by the so-called Tripoli Government, based in the west of the country, while the latter is largely represented by the internationally recognized Tobruk Government led by the HoR, based in the east. The conflict is mainly between two fighting blocs: the GNC-aligned Libya Dawn and the HoR-aligned Dignity. However, much of the conflict, and Libya itself, is fragmented into localized battles and power dynamics, driven by loyalties along often-overlapping ideological, regional, local, tribal and ethnic lines.
'An estimated 1,700 armed groups and militias are active in Libya, some of which were formed as brigades during the 2011 uprising, while others were formed in the later stages or aftermath of the 2011 conflict. This fragmentation challenges the formation of a national consensus or shared vision among Libyans on how to address the legacy of their history, manage the transition or share power thereafter. Chaos across the country has also provided fertile ground for the development of the Islamic State in Iraq and the Levant (ISIL) and affiliated groups. ISIL's territorial influence has grown considerably in 2015.'

11. The US State Department and FCO concur that all travel to Libya should be avoided. The State Department warns that the "security situation remains unpredictable and unstable?the government lacks control over much of the country"; it notes further that the police and security services have limited to no capacity to respond to emergencies or requests for assistance". The FCO travel advice cited in the Appellant's skeleton is:

"The situation in the country remains dangerous and unpredictable. Fighting continues in many parts of Libya and can break out anywhere without warning. There is a high risk of being caught in indiscriminate gun fire or shelling, including air strikes, in all areas where fighting has spread quickly putting those in the area of risk"

12. The same guidance describes the threat of terrorism and kidnapping as "high". An FCO report dated 21st April 2016 [Chapter IV: Human Rights Priority Countries - Libya] states that the judicial system has broken down across the country and endorses the view of various human rights agencies that "armed groups on all sides disregarded civilians and committed violations and abuses of human rights, including abductions, extra-judicial executions, unlawful killings, torture and other ill-treatment".

13. In respect of freedom of movement the June 2016 CIG reports:
2.4.1 Travel within Libya is restricted by violence and conflict between various armed militias and pro-government troops in most of the populated parts of the country. This is further compounded by road blocks and control points manned by conflicting militias, including Islamic State/Daesh and other terrorist groups. The south of the country is subject to checkpoints and roadblocks operated by the Government and by militias. Large parts of the country are primarily desert areas with few towns or inhabitants. There is a lack of infrastructure and supplies, including fuel and transport. Most airports are closed, or in the control of armed militias. There is a risk of landmines and unexploded ordinance in many areas.
2.4.2 Return to an area that is not the person's home may be reasonable in some cases. Decision makers must give careful consideration to the relevance and reasonableness of internal relocation on a case-by-case basis taking full account of the individual circumstances of the particular person, including where they originate from in Libya and where they will be returning to, and the latest available country information.

14. The danger of travel, in which civilians are required to pass through roadblocks operated by armed factions is also highlighted by the US State Department: "various militias have supplanted the police in maintaining internal security. Militia members operate checkpoints within and between major cities. Militia groups sometimes detain travellers for arbitrary or unclear reasons".

15. As to the humanitarian situation, particularly for the internally displaced, the June 2016 CIG urges caution. Whilst some parts of the country remain relatively quiet for now (the east is particularly violent, Tripoli "less so") [2.3.17], the impact of past fighting, and the spectre of future instability, has had a clear impact on the lives of the civilian population:

2.3.5 Humanitarian conditions in Libya have deteriorated since the fall of former president Gaddafi. There has been extensive damage to civilian homes and public infrastructures, including health, education, roads and administrative facilities, disrupting basic services.
2.3.6 Conflict has impacted all the major towns and cities, with the majority of the population affected to some degree by lack of essential resources, including medical care. The healthcare system has deteriorated, leading to an increase in serious illness and disease. 1.9 million people in Libya require humanitarian aid to meet their basic healthcare needs, with particular concern in Benghazi, Tripoli, Derna, Sirte, Al Jifarah, Al Kufra,Wadi Al Hayat and Ghat (see Humanitarian situation).
2.3.7 There are approximately 435,000 internally displaced people in Libya. Living conditions for many internally displaced persons (IDPs) families remained poor and in some instances unsafe. Members of particular IDP communities remain vulnerable to abductions and torture on account of their origin, perceived allegiances during the 2011 conflict, and the current political divide (see Humanitarian situation).
2.3.8 There are estimated to be 1.28 million people at risk of food insecurity, of which 210,000 are in immediate need of food assistance. The most severe cases are reported in Benghazi and in the south. Almost half the population (which is approximately six and a half million) are in need of humanitarian assistance. In January 2016 an estimated 21% of Libyan children aged between 6 and 59 months were suffering from chronic malnutrition (see Humanitarian situation).
2.3.9 Vulnerable groups include the displaced (particularly children, the elderly, women and those with low economic means) female headed households, persons with disabilities and the chronically ill. The most severe needs in terms of geographic areas are those in the east and south of the country.
2.3.10 In general conditions across the country are not so poor that removal would be a breach of Article 2 or 3, however, the situation in parts of the country, including Benghazi and some areas in the east and south are likely to do so, particularly for members of vulnerable groups. Decision makers should consider the individual personal circumstances of each person, taking into account the latest country information (see Humanitarian situation).

16. The Respondent was unable to furnish me with any evidence that the situation had improved since the CIG was published. The Appellant by contrast supplied up to date evidence that the situation had further destabilised, with an attempted coup against the Tripoli government in mid-October. Articles from the Libyan press (the Libyan Herald and Libya Prospect) confirmed that there were civilian casualties in the fighting that took place in the weeks following the failed coup attempt on the 14th October 2016.

My Findings

17. I am grateful to the Appellant's solicitors for the provision of a succinct bundle of country background material but for ease I place my greatest reliance on the material in the CIG. The conclusions to be drawn from that document are as follows:

a) the humanitarian and security situation has demonstrably worsened since AT & Ors;

b) the country is politically divided by two warring factions, but that on the ground those two broad coalitions - the Islamist GNC/Libya Dawn and the 'liberal' HoR/Dignity - splinter into as many as 1700 armed groups all vying for territory, resources and influence;

c) civilians across the country have borne the brunt of the fighting, with indiscriminate bombing, abductions, killings, arbitrary detention and torture widely reported;

d) the ability of the state to protect its civilians is severely compromised by the collapse of the judicial system, the lack of a functioning police service and the fact that the 'government' have now withdrawn to Tobruk where they retain nominal control over only a very small part of the country;

e) at present half of the population is in need of humanitarian assistance and over 20% of children are suffering from malnutrition;

f) the ability for civilians to move around the country (on indeed their neighbourhoods) is dependent on their ability to safely pass through regular checkpoints which are manned by various and competing armed militias (including 'Islamic' State) and to avoid the many areas which are compromised by land mines and unexploded ordinance.

18. This Appellant is not the most vulnerable of returnees. He is not a woman, has no children with him and is not suffering from serious illness. He has a significant advantage in that he has family members remaining in his home town of Rojban who would be able to assist him should he return there. It is his ability to do so that gives cause for concern.

19. It is abundantly clear from the country material that internal travel is fraught with significant dangers, including but not limited to: unexploded mines/ordinance, criminality in the context of a substantial breakdown in law and order, being caught in the crossfire of fighting/bombing, and having to navigate through regular roadblocks. In respect of the latter the land from the border with Tunisia to approximately the mid-line extended south from Siirte is presently controlled by a multitude of Islamist militias operating under the umbrella of 'Libya Dawn', ostensibly under the direction of the Islamist GNC 'government' operating in Tripoli. The evidence suggests that all of these groups operate regular roadblocks and checkpoints. I am not satisfied that it would be practicable or safe for this Appellant to make his way through this political landscape. The Appellant has spent two and half years out of Libya and does not therefore have a good understanding of the shifting alliances 'on the ground'. I cannot imagine that he would therefore be in the position to give the 'right' answers to questions about his loyalties. An admission that he is a recent returnee from Europe would exacerbate the risk of robbery, kidnap or violence. I am satisfied that there are substantial grounds to believe that this Appellant would in these circumstances be at risk of harm from indiscriminate violence.

20. Overall I am satisfied that the Appellant has established that he is presently in need of humanitarian protection.

Decisions

21. The determination of the First-tier Tribunal contains an error of law in respect of its reasoning on Article 15(c) of the Qualification Directive and that part of the determination it is set aside.

22. The decision is remade as follows:

"The appeal is dismissed on asylum and human rights grounds.

The appeal is allowed on humanitarian grounds.

23. There is an order for anonymity.

Upper Tribunal Judge Bruce
17th November 2016