Tribunal decisions

The decision

IAC-AH-VP-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/02349/2015

THE IMMIGRATION ACTS

Heard at Bradford
Decision & Reasons Promulgated
On 17th October 2016 and 5th December 2016
On 6th January 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE D E TAYLOR

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

T R E-M
(ANONYMITY DIRECTION MADE)
Respondent

Representation:
For the Appellant: Ms R Pettersen, HOPO (17.10.2016)
Mr M Diwnycz HOPO (5.12.2016)
For the Respondent: Miss G Patel of Counsel instructed by Arshed & Company (17.10.2016)
Mr M Schwenk, Counsel instructed by Arshed & Company (5.12.2016)

DECISION AND REASONS

1. This is the Secretary of State's appeal against the decision of Judge Gladstone made following a hearing at Manchester on 8th August 2016.

Background
2. The claimant is a citizen of Libya born on 20th May 1988. He came to the UK to seek protection on the grounds that he was specifically targeted by armed militia and ISIS in Libya having participated in the 17th February 2011 revolution and as a well-known member of a human rights group. In a detailed determination the judge concluded that the claimant had fabricated his account which she found not to be credible in any respect.
3. She considered Article 15c with reference to the country guidance case of AT and Others (Article 15c; risk categories) CG [2014] UKUT 318 (IAC) which concluded that a Libyan's mere presence in Libya would not expose him to risk of threat to his life or person there. She accepted that the claimant could not be expected to return to Benghazi but that there was no reason why he could not relocate to a different area.
4. She then turned to the argument put forward by the appellant in relation to the proposed method and route of return. Both Tripoli and Benghazi airports have been inoperable since 2014 and according to information quoted in the US State Department Country Report published in April 2016 "the lack of a physical presence by UNHCR or the IOM was an additional obstacle to proving protection and assistance to returning refugees, asylum seekers and other persons of concern". She also noted that travel within the country continued to be difficult due to the presence of Islamist and other militia checkpoints.
5. She then wrote as follows:
"In the light of all the above I consider that there is sufficient evidence before me to find that the appellant will be at risk solely on the basis of the proposed method and route of return which, in any event, has not been specified."
6. She allowed the appeal on humanitarian protection grounds.
The Grounds of Application
7. The Secretary of State sought permission to appeal on the grounds that the judge had conflated the viability of return with risk on return. Whether there is a viable route of return is a matter for the Secretary of State when she decides to remove the claimant. Furthermore she had given inadequate reasons for how it can be said that any proposed route of return would put the claimant at risk of such a high level of indiscriminate violence that substantial grounds exist for believing that the claimant would solely by being present there face a real risk which threatens his life or person.
8. The Secretary of State relied on an extract from the June Country 2016 Country of Information Report which clearly referred to a functioning airport which the judge failed to make findings on.
9. Permission to appeal was granted by Designated Judge Woodcraft on 14th September 2016 for the reasons stated in the grounds.
10. The claimant served a reply defending the determination and stating that a cogent argument had been raised that there may not be a safe route of return for him which had to be dealt with by the Tribunal regardless of whether the Secretary of State had identified a method and route of return - HH (Somalia) and Others v SSHD [2010] EWCA Civ 426. The airport mentioned in the grounds, Al Abraq is in a dangerous and contested area in Bayda. The claimant would not voluntarily fly there bearing in mind its distance from his home area of Benghazi and concerns over the safety of the route from the airport to the claimant's home area.
Submissions
11. Mrs Pettersen relied on her grounds and submitted that the judge had erred in failing to deal with the objective evidence before her in relation to Al Abraq Airport.
12. Miss Patel submitted that any failure to deal with the point was immaterial because of the distance from Al Abraq to Benghazi and the difficulty of the journey.
Consideration of whether there is a Material Error of Law
13. I am satisfied that the judge erred.
14. In the papers before her, to which in fact she referred, there is a UNOCHA Report "shattered lives" which states:
"Explosive weapon attacks have also led to the closure of Libya's two busiest international airports. Benghazi International Airport has been closed since May 2014 due to the proximity of ongoing clashes. It was Libya's second busiest airport serving as a travel hub for the entire east. Travellers alternatively use Al Abraq Airport, roughly 220 kilometres to the east. Mohammed, First Officer at Alafriqiyah Airways explained 'This small regional airport was built to host four flights per day and now sees as many as 25 domestic and international departures within 24 hours'".
15. It was incumbent on the judge to deal with the issue of return to Al Abraq. Miss Patel's submission that it would have made no difference to her decision was undermined by her acknowledgment that her instructing solicitors had not provided any evidence to establish what, if any, the risks would be in travelling from Al Abraq to Benghazi or indeed another potential safe haven in Libya.
16. The decision is set aside on the grounds that the judge did not consider all of the relevant evidence before her.
17. Mrs Pettersen made no objection to an adjournment so that the representatives could provide all of the evidence upon which they seek to rely, which must be filed with the Tribunal and with the Presenting Officers' Unit seven days before the hearing.

Resumed Hearing
18. At the resumed hearing Mr Schwenk produced a large bundle of documents, including both the original bundle before the First-tier Judge and up-to-date evidence relating to the situation in Libya. He also produced two faxed documents relating to an incident at Al Abraq Airport in September 2016 which the interpreter helpfully translated to the Tribunal, and evidence from the BBC dated 2nd December 2016 and from Sofrep Radio relating to rival militia activity in Tripoli.
19. He sought to adduce evidence of further threats to the appellant via Facebook. However, he accepted that there had been no cross-appeal by the claimant challenging the credibility findings of the original judge and accordingly they stand as the assessment of whether the claimant told the truth about the events which led to his application for asylum. Those credibility findings are not going to be re-opened at this stage. He accepted that, if the claimant had evidence which he wished the Secretary of State to consider that should be done in the context of a fresh application.
20. Mr Diwnycz produced evidence of commercial flights going in and out of the military airport, Mitiga, in Tripoli.
Submissions
21. Mr Diwnycz relied on the information he had produced showing that commercial flights are travelling in and out of Mitiga Airport and submitted that the latest information did not take the claimant's case any further. It appeared that there had been a foiled attempt by Al Qaeda on Al Abraq but this was three months ago, and the BBC report did not establish a deterioration in the situation in Tripoli.
22. Mr Schwenk relied on the latest Tribunal decision in FA v SSHD [2016] UKUT 413 which held that AT and Others (Article 15c risk categories) CG [2014] UKUT 318 (IAC) should no longer be followed; each case had to be dealt with on a case by case basis.
23. He relied on his previous skeleton argument and submitted that the Secretary of State was unlawfully failing to engage with the issue of a route and method of return. She had proposed none. All she had said was that the appellant could return voluntarily, which he was not willing to do.
24. He also relied on the Secretary of State's own evidence in relation to the situation in Benghazi and submitted that there would be an Article 15c risk to him in his home area. There was no evidence that he had any connections outside Benghazi. He pointed out that the Secretary of State had not proposed any alternative area where the appellant could reasonably go. There was up-to-date information from Tripoli, from three days ago, which reported that two of the cities largest and most heavily armed militias were fighting an alliance of hardline Islamists and militias loyal to rival political authorities. Clashes, according to the BBC, were continuing in two main districts of the south of the capital with tanks and pick-up trucks armed with rocket launches reportedly deployed in several districts.
Findings and Conclusions
25. The Tribunal in FA recognised the volatility of the present situation in Libya and held that the conclusions in AT were no longer to be followed. Each case is to be dealt with on its own facts.
26. At paragraph 2.3.10 of the Secretary of State's latest country information and guidance on Libya dated June 2016 it states as follows:
"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."
At paragraph 2.3.15 it states:
"The security situation varies from region to region, and between and within towns and cities. The cities of Benghazi, Sirte, Sabha, Kufrah, Darnha and Misrata are particularly violent; Tripoli and Tobruk less so. Fighting with light and heavy weaponry, abductions, assassinations, public executions, explosions and other abuses have all been reported in these cities. Sirte is the stronghold of Daesh in Libya and is reportedly the main hub of Daesh's north African operations."
And again at paragraph 2.3.16:
"Since the promulgation of the country guidance case of AT, the security situation in Libya has deteriorated. Areas in and around Benghazi, Sirte and Derna are particularly volatile with a high number of violent incidents and casualties due to fighting and air attacks. The conditions in these areas currently under the control of Islamist groups such as Daesh and Ansar Al Sharia are likely to breach Article 15c of the QD although the situation remains changeable."
27. There is absolutely no evidence that the situation in Benghazi has improved since the report was compiled. Since it is the Secretary of State's own evidence that the conditions in Benghazi are likely to breach Article 15C, I conclude that the appellant, whilst he is not a member of a vulnerable group, cannot return to his home city without a real risk of his Article 15c rights being breached. The COI report does not say that the risk is confined to such groups.
28. Indeed at paragraph 3.1.3 the CIG states
"In general, levels of violence across Libya are not such that a person would, solely by being present there, face a real risk which threatens his or her life or person in breach of 15c. However in some parts of the country, including Sirte, Benghazi and Darnha, conditions are likely to make a return a breach of 15c."
29. That is an acknowledgment by the Secretary of State that, applying the proper standard of proof of reasonable degree of likelihood, returning the claimant to Benghazi would breach his Article 15c rights.
30. So far as the submission that the Secretary of State has not engaged with the issue of route and method of return is concerned, I do not accept it. She has in fact proposed two possible routes, namely Al Abraq, and today, the military airport in Tripoli.
31. Al Abraq is in the east. Paragraph 2.4 of the Secretary of State's report deals with internal relocation. It states:
"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 roadblocks and control points manned by conflicting militias, including Islamic state Daesh/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."
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."
32. Evidence has been produced today of an abortive attack on the airport at Al Abraq. Mr Diwnycz rather optimistically submitted that this was three months ago, but this is a difficult basis upon which to conclude that an airport is safe.
33. Be that as it may, even if the claimant could safely land at Al Abraq, or indeed Tripoli, Mr Diwnycz was unable to point to any information to counter the conclusions in the Secretary of State's own report in relation to the difficulties of travelling in eastern Libya.
34. The FCO advice to British citizens considering travel to Libya is that
"Road travel within Libya remains highly dangerous. There continues to be a risk of being caught up in outbreaks of hostilities. There is also a high risk of carjacking and robbery. There is a risk of striking unexploded ordinance off road."
35. Those risks apply equally to Libyan citizens.
36. The Secretary of State has not chosen to identify any area of Libya which she considers it would be reasonable for the claimant to relocate to. She accepts that he is at risk of Article 15c harm in his home area. She is not committing herself to a particular airport but suggests two, Al Abraq and Tripoli. However the claimant cannot safely access any theoretical safe area from those airports because road travel is simply too dangerous in the present circumstances.

Decision
37. The original judge erred in law and her decision has been set aside. It is remade as follows. The claimant's appeal is allowed on humanitarian protection grounds.

Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008

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.

Signed Date 5 January 2017

Deputy Upper Tribunal Judge Taylor