Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/03821/2015

THE IMMIGRATION ACTS

Heard at Newport
Decision & Reasons Promulgated
on 6 October 2016
on 20 October 2016

Before

UPPER TRIBUNAL JUDGE HANSON

Between

AMAS
(Anonymity direction made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr A Joseph instructed by A. Seelhoff Solicitors
For the Respondent: Mr I Richards Senior Home Office Presenting Officer.

DECISION AND REASONS

1. This is an appeal against a judgment of First-tier Tribunal Judge Coaster promulgated ion the 24 May 2016, following a hearing at Newport on the 16 May 2016, in which the Judge dismissed the appeal on all grounds.

Background

2. The appellant is a national of Libya born in March 1986. The appellant's family live in Libya in an area approximately 40 miles southeast of Tripoli. The appellant entered the UK lawfully as a student in 2009. His leave was extended to August 2015. The appellant returned to Libya in April 2014 for a visit returning the UK at the end of that month. The appellant graduated from the University of South Wales with an MBA in August 2015.
3. The basis of the asylum claim is that of imputed politic opinion. The Judge noted the two elements of the claim, at [27-29] in relation to membership of the Revolutionary Committee at the time of Colonel Gadhafi and, at [30], the issue of the appellants arrest at Tripoli airport in April 2014.
4. The findings can be summaries as follows:

a. The appellant has not established his credibility and has not established to the required lower standard of proof that (i) he was a member or former member of the Revolutionary Committee, nor (ii) that he was arrested for being a member of former member of the Revolutionary Committee. [45]
b. The appellant had not established that an agent retrieved his passport from the militia who he claims arrested, tortured and then released him [46].
c. Even if the appellant had been a member of the Revolutionary Committee he would still be of no interest to the militia or authorities in Libya [47].
d. The appellant had failed to make out that he is entitled to a grant of humanitarian protection [48].
e. The appellant has failed to make out that Articles 2 or 3 will be breached [49]
f. As no protection issues had been proved in the appellant's home area the issue of internal relocation does not arise. The appellant is not at risk in Libya [50].
g. No issue in relation to family or private life has been raised [51].

5. Permission to appeal to the Upper Tribunal was refused by another judge of the First-tier Tribunal but granted on a renewed application by Upper Tribunal Judge Gill, limited to paragraphs 13-15 of issue 2 and issue 3 of the grounds only. These provisions assert:

Issue 2 - Implausibility of detention and torture

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13. The judge returns to this issue at paragraph 46 (although he refers to it as the third issue). Here he states the Appellant did not:

"provide details of the location and persons to whom he reported to during the weeks after he was released, nor did he confirm that he had provided those details to the agent to assist with the retrieval of his passport from the militia"

14. This is simply incorrect. In his statement at paragraph 16 the Appellant explained:

"I was detained in Tripoli, and when I was released it was in Tripoli ad I was given instructions to report at the police station in Tripoli. I told the agent that and he said he could use that information to start looking for where my passport might be through his contacts".

6. Issue 3 is pleaded in the following terms:

Issue 3 - Possession of Two Passports

16. Prior to leaving Libya the appellant obtained a second passport, but also claims to have taken steps to have the agent he used retrieve his old passport from those who had detained him.

17. It was submitted on behalf of the appellant that the obtaining of the second passport was consistent with his asylum claim.

18. The judge discounts the second passport as supporting the claim by speculating with no apparent basis that:

"in having a second newly issued passport has the "insurance policy" of a current passport with a lengthy, distant expiry date in the event that he may reside for some time in the United Kingdom or some other place, but wishes at a later date to be free to return without complication to Libya after the expiry of his first passport"

19. The judge's alternative explanation is nonsensical given that the Appellant surrendered both passports to the Home Office, and that passports can readily be renewed in the UK. The Appellant could not possibly have benefitted from having a second passport if he surrendered both to the UK authorities.

20. The judge has further erred by speculating as to the reason for having a second passport.

21. The First-tier judge suggested that this was not an error as it was only an assessment of the "likelihood of the account". Given that the judge's alternative explanation for the possession of a second passport was entirely illogical in the context of the case it cannot be relevant to the "likelihood" of the original account being true.

7. What must be noted is that permission to appeal was not granted on Ground 2. Issues 1-3 form part of Ground 1. There has been no challenge to the limited scope of the grant of permission. Ground 2 asserted that the conclusion of the Judge at [47] was "plainly nonsense". At [47] the Judge found:

47. I have considered whether, if the Appellant were a member of the Revolutionary Committee, anything would change in my conclusions. I find that they would not. The Appellant could have been a member of the Revolutionary Committee and benefited from State bursaries for study in the United Kingdom; he could also have been arrested on 19 April 2019, but my conclusion, if that were the case remain unchanged in that he would be of no interest to the militia or other authorities in Libya and is therefore not at risk on return.

8. It is accepted that the reference to 2019 is in error as the correct date is 2014. The finding in the alternative is an unchallenged finding save by disagreement for which permission to appeal was not granted.

Error of law

9. It is necessary to focus on the key elements of the appeal that the appellant maintained will place him at risk of return. The first element is a risk on return as a result of the appellant's membership of the Revolutionary Committee. The Judge refers to the appellant's evidence in this respect of this issue at [11-12] in the following terms:

11. The Appellants adopted his statement and was cross examined. His case can be summarised as follows: The Appellant was educated in Libya between 1991 to 2003. He attended Al Mergeb University in Tarhuna between 2003-2007 graduating in English Language. Between 2008-2009 he worked as an English language teacher in a private college in substitution for conscripted military service. In March 2009 he came to the United Kingdom as a student, studying English for 16 months and extending his visa once. He undertook an MSc in 2010, graduating in 2012. He applied for a Post Study Work Visa and in February 2014 he started an MBA at the University of South Wales, graduating in August 2015.

12. In the Appellant's last years at Al Mergeb University in 2007 he joined the local office of the Revolutionary Committee because of the social advantages being a member brought, rather than any strong political or religious motivation or interest. The Appellant co-ordinated cultural events at the university and was well known in student circles. He was promoted to membership of the Tarhuna Revolutionary Committee officially in May 2007. His contribution to the Revolutionary Committee did not involve security activities or reporting other citizens to the Revolutionary Committee. One he started teaching in 2008 he [had] no further involvement in cultural, educational activities for the Revolutionary Committee although he retained his membership. The Revolutionary Committee provided a bursary for his study in the United Kingdom.

10. Although the Judge found the appellants claim to have been a member of the Revolutionary Committee to be no more than a bare assertion this is arguably not the case.
11. The relevant case law of the Upper Tribunal reflects the changing nature of the conflict in Libya. In AT and Others (Article 15c; risk categories) Libya [2014] UKUT 318 (IAC), which now needs to be read in line with FA (Libya: art 15(c)) Libya CG [2016] UKUT 413 (IAC), it had been held (i) having regard to the generally hostile attitude of society to the former regime, the following are, in general, at real risk of persecution or Article 3 ill-treatment on return to Libya: - (a) former high ranking officials within the intelligence services of that regime; (b) others with an association at senior level with that regime; (ii) As a general matter, the closer an individual was to the centre of power within the former regime, the more likely that the individual will be able to establish a risk of persecution or Article 3 ill-treatment on return; (iii) the majority of the population of Libya either worked for, had some association with, or has a member of the family who worked for or had an association with the Gadhafi regime. Such employment or association alone is not sufficient to establish a risk of persecution or Article 3 ill-treatment on return; (iv) in general, family members of those described in (i) and (ii) above are not at risk of persecution or a breach of their protected rights on return. It is possible, however, that an individual will be able to establish such a risk but this will need to be demonstrated by specific evidence relating to the individual's circumstances. Mere assertion of risk by association as a family member would not be sufficient without fact-specific evidence of the risk to that particular family member.
12. The Judge relied upon the decision in AT and Others which, at the date of the hearing and promulgation, was a county guidance case. The decision in FA(Libya) replaced AT and Others in respect of assessment of the article 15(c) risk. It was not made out before the Judge that the appellant fell within the specified risk categories as (a) former high-ranking officials within the intelligence services of that regime, or, (b) others with an association at senior level with that regime. The appellant's evidence was that he joined his local Revolutionary Committee at the University for pragmatic reasons to enjoy the benefits following on from membership of the same. It is accepted by this Tribunal that to be able to leave Libya to study abroad with funding from the Libyan State the appellant is likely to have needed to be recognised as a person who supported the aims Colonel Gadhafi's 'peoples revolution'. What was not established before the Judge was that the appellants profile was of a person close to the centre of power within the former regime such as to place him at risk for this reason on return, or that he will be perceived as having such a profile, especially in light of the fact his active role in the Revolutionary Committee ended in 2007 and that from 2009 to 2014 he was in the United Kingdom as a student.
13. It is also the case that the appellant has returned to Libya on five occasions following the fall of the Gadhafi regime. The same militia group have been in control of Tripoli airport yet the appellant does not claim to have faced any risk on return as a result of his previous activities, until the most recent visit. This supports the Judges finding in the alternative that the appellants profile is not one that will place him at risk, in accordance with the country guidance case law.
14. The second element of the claim is referred to in paragraph 13 of the decision under challenge where the Judge finds:

13. Since the fall of the Gadhafi regime in 2011 the Appellant has returned to Libya on five occasions. On his fifth and last visit, on arrival at Tripoli airport in 19 April 2014 the Appellant was arrested by the militia controlling the airport at the time and taken to an interrogation centre where he was held, interrogated and subjected to beatings and torture. The Appellant had no knowledge of his whereabouts. His passport was taken away. He was told it was his time to be punished for "his activities", meaning his membership of the Revolutionary Committee. He was released on the 21st April. He went to his uncle's house in Tripoli and had instructions to report weekly. The Appellants' family travelled from Tarhuna to meet him there. He and they were afraid for his life. The Appellant reported once at a local police station before leaving the country with the assistance of an agent on 30th April 2014. The agent took the Appellant to Tripoli airport having obtained a renewed passport for him. The Appellant asked the agent to try and retrieve his original passport, taken from him when he was arrested, because it contained his current Post-Study Work Visa. Before his departure, the agent also handed over to the Appellant this original confiscated passport. The Appellant was guided to the plane, circumventing normal passport control and took the flight to the United Kingdom. On arrival he continued with his studies, hoping the political situation in Libya would improve. The Appellant was informed that members of the militia went to his uncle's house on a number of occasions looking for him. According to the Appellant's father, no paper work has been left for him.

15. According to BBC news reports the international airport at Tripoli was under control of the Zintan militia in 2014. In July 2014 it was reported that two days of fighting had ensured, which resulted in the closure of the airport, between militia wishing to impose Islamic law and the Zintan militia who control the airport. Zintan are an anti-Islamist militias that operate especially in the west of Libya and support the internationally-recognised authorities. They have clashed on numerous occasions with Libya Dawn, another militia group, and continue to detain Saif-al-Islam al-Gaddafi, the son of the former leader who was sentenced to death in Tripoli last year, in the western city of Zintan, while most other Gaddafi-era officials are held by pro-Islamist forces in Tripoli.
16. The appellant claims to have arrived in April 2014 before the later assault and understandable heightened tension that followed which may have led to the arrest of those thought to support rival groups, so this does not assist the appellant. The appellant accepts he was able to return to Libya and leave on four previous occasions when the Zintan militia were also in control of the airport, and to have passed through the same without difficulty.
17. The appellant claims that he was detained on the fifth occasion but his profile is not that of a person who falls within any of the recognised risk categories. As stated above, it is arguable that if any risk arose based upon his past profile it would have existed and put him at risk previously, yet it did not.
18. The appellant also claims that notwithstanding his being at risk of harm, he was released to an uncle's house with a condition of reporting. The militia groups in Libya are not known for their adherence to international standards of human right observances and it is arguably implausible that a person with a profile sufficient to create a real risk for them on return would have been released into the community which is a non-secure environment. It is more plausible that in the environment of inter-militia conflict in Libya that a person suspected of supporting an opposition group or of concern is more likely to be detained or even killed.
19. The fact the appellant was released shows the low level of interest in him if his account was credible, which the Judge did not find to be the case.
20. The appellant claims he reported once and then absconded and returned to the United Kingdom. He claims an agent secured his original passport and that he also obtained a replacement passport. There are established procedures for obtaining passports in Libya which involve the need to submit all the required documents (now at the Libyan Passport and Nationality Department office at the University of Sirte). Required documents ordinarily include passport application forms which include details of the Family Registry Number and the Family Booklet Number, three photographs taken against a light background, the Family booklet or a copy of the family booklet, or an administrative certificate related to the birth of the applicant issued by Civil Registration in Libya, a true copy of the Libyan ID and a true copy of the birth certificate. It is not clear if the same information if required for a duplicate passport, and it may not be if this information is already held, but the act of making the application in the appellants name did not result in any action being taken against him by the authorities or a refusal to issue the passport which is indicative of a lack of interest in him by the issuing authorities.
21. The appellant also claims an agent was able to secure the return of his original passport from the militia. It is 'odd' that those the appellant claims have detained and ill-treated him and who have insisted he reports to a nominated police station would then return to him a document by which he is able to leave the country, if he was of any ongoing concern to them. The appellant also claims he was able to by-pass security at the airport as he was 'guided to the plane'. The appellant claims to have left on 30 April 2014 yet not to have received any documents relating to his being wanted by the militia despite claims that here have been visits to his uncle's and parent's house.
22. Even if the appellant was stopped and questioned by members of the Zintan militia on one occasion in 2014 that does not show he will face a real risk of return in 2016. The finding that the appellant does not possess a profile that will place him at risk on return is one reasonably open to the Judge on the evidence. The fact the appellant was able to enter Libya without difficulty previously supports such a finding. The implausibility of a person suspected of possessing a profile that will place him at risk being released casts doubt upon the credibility of the claim that he will be of ongoing interest to the militia on return.
23. The issue in relation to the two passports has not been shown to be material to the key risk factors relied upon in the claim even if the Judge's findings are tainted by speculation in relation to this element.
24. No arguable legal error material to the decision is made out. The decision shall stand.

Decision

25. There is no material error of law in the First-tier Tribunal Judge's decision. The determination shall stand.

Anonymity.

26. The First-tier Tribunal made an order pursuant to rule 45(4)(i) of the Asylum and Immigration Tribunal (Procedure) Rules 2005.

I make such an order pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008.

Signed??????????????????.
Upper Tribunal Judge Hanson

Dated the 19 October 2016