Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA022192015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 10th May 2016
On 14th June 2016

Before

UPPER TRIBUNAL JUDGE KING TD

Between

N O S T

Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Ms Atreya, instructed by Bindmans LLP
For the Respondent: Mr Kandola, Home Office Presenting Officer

DECISION AND REASONS

1. The appellant entered the United Kingdom in December 2012 with his wife and two of his sons. The basis upon which leave was granted at that stage was on medical grounds of treatment for his son. The visa expired in October 2014 and the appellant claimed asylum on 20th April 2015. The claim for asylum is multifaceted. He claims that as a member of the Al-Bouaichi tribe he will be targeted by militant groups. In the light of the expert report of Alison Pargeter the Judge concluded that being of that tribe would not without more now attract adverse attention.

2. Further what is relied upon specifically by the appellant is that he was for a time the director of Ministry of Education and therefore would be seen to have been part of the Gaddafi regime. In support of that matter he produces a warrant issued in 2015.

3. The respondent having refused to grant asylum or other protection, the matter came for hearing before First-tier Tribunal Judge Swinnerton on 18th February 2016. The Judge for various reasons as set out in the determination did not believe that the appellant held the position in education that he claims. He does not find that the appellant came within any of the risk categories as noted in the guidance case of AT and Others (Article 15c; risk categories) Libya CG [2014] UKUT 318 (IAC). Thus it was that the appeal was dismissed.

4. Detailed grounds have been submitted critical of the approach taken by the Judge. In particular it is alleged that the Judge has paid no regard or insignificant regard to important items of evidence in the overall decision that was made. The witness S A in his witness summons was the one who was instrumental in locating the warrant of arrest. He confirms the position of the appellant and speaks as to the appellant's son's kidnap. No reference is made whatsoever to that witness statement and no evaluation is made.

5. Similarly the appellant's son and wife gave evidence, his wife orally. There is a passing reference to that evidence but little by way of analysis upon it.

6. There is little reference if any to the kidnapping of the son, certainly little by way of analysis of the warrant of arrest.

7. Ms Atreya who represents the appellant before me and represented him before the First-tier Tribunal, submits that the determination is fundamentally flawed by reason of the significant omissions.

8. In addition to the issue of asylum is of course that of humanitarian protection, having regard to the country conditions of Libya and bearing in mind in particular the evidence of the kidnapping of the son to which scant reference if any has been made.

9. It is perhaps unnecessary to go further into the criticisms made as Mr Kandola most fairly conceded, having heard what Ms Atreya had to say, that the determination was not sustainable.

10. In those circumstances the appeal is allowed to the extent that it is remitted to the First-tier Tribunal for a de novo hearing on all material issues. It will be for that Tribunal to issue directions in due course.

11. In the circumstances therefore the decision of Judge Swinnerton is set aside to be remade in accordance with the decision to which I have just referred.

No anonymity direction is made.

Signed Date 14 June 2016

Upper Tribunal Judge King TD