Tribunal decisions

The decision

IAC-FH-NL-V2

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/00580/2016

THE IMMIGRATION ACTS

Heard at Stoke
Decision & Reasons Promulgated
On 9 December 2016
On 18 January 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE LATTER

Between

AY
(ANONYMITY DIRECTION made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr M Mohzan of Burton & Burton, Solicitors
For the Respondent: Mr C Bates, Home Office Presenting Officer

DECISION AND REASONS

1. This is an appeal by the appellant against a decision of the First-tier Tribunal (Judge Birk) dismissing his appeal against the respondent's decision made on 8 January 2016 refusing him asylum.

Background

2. The appellant is a citizen of Libya born on 19 October 1968. He entered the UK in September 2009 as a student and was granted further leave to remain until 30 March 2016. He is married and has three children born on 8 November 2001, 31 December 2003 and 4 April 2007 respectively. They joined him in the UK in 2010 and have lived here since then. On 11 September 2015 he claimed asylum.

3. His application was refused for the reasons set out in the decision letter dated 8 January 2016. The respondent was not satisfied that the appellant was entitled to asylum. In so far as he was at risk in his home area of Sirte, he would be able to relocate in the area of Tobruk. The respondent went on to consider article 8 but found that the appellant and his family could not meet the requirements of the Rules and there were no exceptional circumstances which might warrant consideration of a grant of leave outside the requirements of the Rules.

4. The appellant's claim for asylum was based on the fact that he comes from Sirte and is from the Ferjani tribe. In 2011 he supported the Libyan revolution against Gaddafi from the UK. He made donations and held a fund-raising dinner to help IDPs. In 2014 Sirte was occupied by ISIS and there was animosity between the appellant's tribe and ISIS. On 13 August 2015 the appellant's brother was abducted and he had been told that this was by ISIS and on 11 August 2016 his brother-in-law, an influential imam, was killed by ISIS.

5. The respondent found that it had not been substantiated that his brother-in-law had been killed by ISIS or that his brother had been abducted by them. There was no evidence that his support for the revolution would put him at risk. It was accepted that he might be at risk on return to Sirte and other coastal cities because of his tribal background but he could relocate to Tobruk which was under government control.

The Hearing before the First-tier Tribunal

6. The judge found that the appellant had been unable to produce any evidence that he had been active in the UK in pro-revolution activities or sufficient evidence to show that anyone in Libya was likely to know about or act perversely towards him because of any claimed sur place activities. He took into account that the appellant on his own account had been prepared to go to Libya in 2013 and if he had thought that his life was in real danger, he would not have done so. He found that the appellant had not established that he was at risk due to his claimed active support for the revolution.

7. However, the judge was satisfied that the appellant's brother-in-law had been killed in Libya and that there was a good possibility that this was the work of ISIS. He did not find that the appellant himself would be targeted because there might be many reasons why his brother-in-law had been killed. Equally, there might be many reasons why his brother had been abducted and the judge was not satisfied that there was evidence that these were related to the appellant or that he would be identified or be pursued by ISIS.

8. In the light of the situation in Sirte and other coastal cities, the judge proceeded on the basis that because of the appellant's tribal background he would be at risk there. He then considered whether the appellant could relocate to Tobruk. He took into account the expert report dated 9 August 2016 prepared by Alison Pargeter which said that Tobruk had seen considerably less violence and instability than other parts of Libya and the guidance provided at paras 19 to 21 in AT and Others (Article 15c; risk categories) Libya CG [2014] UKUT 318. He concluded that the situation in Tobruk, whilst bringing challenges and difficulties was not such that it would be unsafe or unduly harsh for the appellant to return there.

9. He was not satisfied that the appellant would be at risk of indiscriminate violence within Article 15(c) as there was no evidence that the situation as considered in AT and Others had worsened. The judge took into account s55 of the Borders, Citizenship and Immigration Act 2009 setting out the need to safeguard and promote the welfare of children but found that in view of his findings that the appellant could return to Libya and that his family would be returning with him as a family unit, there were no compelling circumstances to consider article 8 outside the Rules. Accordingly, the appeal was dismissed on all grounds.

The Grounds and Submissions

10. In the grounds it is argued that the judge failed properly to consider the issue of relocation in accordance with Januzi v Secretary of State [2006] UKHL 65. There was no evidence that the appellant had the resources available to support himself and the children and his family circumstances were such it would not be reasonable to expect him to relocate. The grounds assert that the judge had failed to consider whether it would be in the best interests of the children to relocate to that part of the country and that the decision lacked any proper or adequate reasoning on material matters.

11. The grounds also challenge the decision under article 8, arguing that the judge had failed to consider properly the length of time that the children had spent in the UK, particularly as the older child would complete seven years in the near future. In summary, it is argued that the judge failed to strike a fair balance between the compelling and compassionate circumstances and the public interest considerations.

12. Mr Mohzan adopted these grounds in his submissions. He also referred to the recent country guidance case in FA (Libya: Article 15(c)) Libya CG [2016] UKUT 413 which had held that due to changes in the country situation since November 2013 the guidance given in AT and Others was now unreliable. He submitted that the judge had failed to consider whether it would be unduly harsh for the appellant's family to relocate and whilst mentioning the best interests of the children had not fully considered all the factors which were relevant to make a full assessment.

13. Mr Bates conceded that the judge had not dealt adequately with the issue of the best interests of the children and in particular had not considered the length of the children's residence in the UK and in consequence this affected his assessment of whether it would be unduly harsh for the family to relocate to Tobruk.

The Error of Law

14. I agree that this concession is rightly made and that the judge erred in law by failing to consider all relevant matters when assessing the issue of whether it would be unduly harsh for the appellant and his family to relocate in Tobruk. I also accept that there has been an inadequate consideration of the best interests of the children, the judge failing to consider the issues identified as relevant by the Supreme Court in ZH (Tanzania) v Secretary of State [2011] UKSC 4 and Zoumbas v Secretary of State [2013] UKSC 74 and by the Court of Appeal in EV (Philippines) v Secretary of State [2014] EWCA Civ 874 .

15. I am satisfied that the proper course is for the appeal to be remitted to the First-tier Tribunal for reconsideration by a different judge of the issues of whether it would be unduly harsh for the appellant and his family to relocate in Tobruk and to re-assess the issue of proportionality taking full account of the best interests of the children. The judge's findings of primary fact in paras 21-26 are preserved.

Decision

16. The First-tier Tribunal erred in law such that this decision should be set aside. The appeal is remitted to the First-tier Tribunal to reconsider the issues of undue harshness and article 8. The anonymity order made by the First-tier Tribunal remains in force until further order.

Signed H J E Latter Date: 16 January 2017

Deputy Upper Tribunal Judge Latter