Tribunal decisions

The decision

IAC-FH-CK-V2

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/01957/2015

THE IMMIGRATION ACTS

Heard at Civil and Family Court Centre, Liverpool
Decision & Reasons Promulgated
On 27 January 2017
On 20 February 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE LATTER

Between

Hamad Musa Shiko Ibrahim
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr S Chaudhry, Solicitor, Broudie Jackson Canter
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 J Austin), who dismissed his appeal against the respondent's decision made on 15 October 2015 refusing his claim for international protection.

Background
2. In brief outline, the background to this appeal is as follows. The appellant is a citizen of Libya born on 1 January 1990. On his own account he left Libya on 13 April 2015 travelling by boat to Italy and then on to France, arriving there on 20 April 2015. He came in the UK on 24 June 2015 making a clandestine entry. Following his arrest for illegally entering the UK, he claimed asylum.
3. The appellant claimed that he would be at real risk of persecution on return to Libya due to his racial/ethnic origins and his imputed political opinion. However, his application was refused for the reasons set out in the detailed reasons for refusal annexed to the decision letter dated 15 October 2015. The respondent did not accept that the appellant was from the Tebu tribe as he claimed and rejected his evidence that he had worked at his father's garage and had been forced by masked individuals to carry out repairs to their vehicles.
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 one of his friends. He accepted that the appellant was from the Tebu tribe and that it was credible that he could have been drawn into working on vehicles for various factions and threatened, if he did not carry out the work without payment. However, the judge said that this of itself if true did not amount to establishing that he was per se at risk of persecution or ill-treatment contrary to article 3. He was not satisfied that the appellant could bring himself within the risk categories identified in AT and Others (Article 15c; risk categories) Libya CG [2014] UKUT 318. He therefore found that he did not qualify as a refugee under the 1951 Convention. So far as humanitarian protection was concerned the judge said at [19] that the appellant did not qualify for a grant on this basis in the UK in accordance with para 339C of the Rules as there was no reasonable degree of likelihood that he would face a risk of serious harm on return to Libya. The judge acknowledged that Libya was a country where there were risks of violence, mistreatment and intimidation but he was not persuaded by the appellant's claim that he should depart from the country guidance set out in AT and Others to find that he belonged to a category of risk not identified in that country guidance.
The Grounds and Submissions
5. In the grounds it is argued that the judge erred in law by failing to make findings on the submission that the appellant was entitled to refugee status in the light of the fact that there was no safe route of return following the line of cases including HH (Somalia) [2010] EWCA Civ 426 or to give adequate reasons on material issues in dispute. The grounds argue that further up-to-date material about the country situation in Libya had been produced at the hearing which justified departing from the country guidance in AT and Others.
6. Permission to appeal was granted by the First-tier Tribunal on the basis that it was argued that, having found that the appellant was a "black Libyan" from Benghazi the judge erred by failing to consider the alternative claim put to him that the appellant was entitled to subsidiary protection under article 15(c). Submissions had been made that AT and Others should no longer be followed but the judge had not engaged with that issue.
The Error of Law
7. Mr Chaudhry adopted his grounds of appeal and Mr Bates indicated that he did not seek to resist the appeal. He accepted that the judge had not dealt adequately or at all with the evidence and submissions about the deteriorating situation in Libya and whether the appellant would be entitled to humanitarian protection under the provisions of article 15(c).
8. It is clear from the skeleton argument produced for the hearing before the First-tier Tribunal that the appellant was arguing that further evidence justified a departure from the country guidance in AT and Others. The evidence relied on was contained in the appellant's bundle of documents and it is clear from the judge's notes of proceedings that submissions were made based on those documents that the country guidance should either be distinguished or amended.
9. I am satisfied that the judge erred in law by failing to deal with this issue in his decision. The judge should have engaged with that evidence and set out his findings on whether the further evidence was sufficiently cogent to justify departure from the current country guidance.
10. I am therefore satisfied that the judge erred in law such that the decision should be set aside. Both representatives agreed in the circumstances that the appeal should be remitted to the First-tier Tribunal for reconsideration. I am satisfied that the finding that the appellant is from the Tebu tribe should be preserved. Subject to this preserved finding of fact, there is to be a full rehearing on the issue of whether the appellant is entitled to asylum or humanitarian protection, in the light of the further country guidance in FA (Libya - art 15(c)) [2016] UKUT 413. For the avoidance of doubt, it will be open to both the appellant and the respondent to adduce evidence and make submissions on all relevant issues including, if appropriate, whether an internal relocation option is available if it is found that there is a real risk of persecution or a need for humanitarian protection in parts of Libya and to argue any issues arising from the method or route of return.
Decision
11. The First-tier Tribunal erred in law such that the decision is set aside. It is remitted to the First-tier Tribunal for reconsideration by a different judge subject to preserving the finding that the appellant is a member of the Tebu tribe.

Signed H J E Latter
Date: 17 February 2017
Deputy Upper Tribunal Judge Latter