Tribunal decisions

The decision

IAC-FH-NL-V2

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/03967/2015

THE IMMIGRATION ACTS

Heard at the Civil and Family Court, Liverpool
Decision & Reasons Promulgated
On 26 January 2017
On 17 February 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE LATTER

Between

Secretary of State for the Home Department
Appellant
and

NF
(ANONYMITY DIRECTION MADE)
Respondent

Representation:
For the Appellant: Mr A McVeety, Home Office Presenting Officer
For the Respondent: Mrs C Johnrose, Solicitor

DECISION AND REASONS

An Anonymity Direction is made under 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 his 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.

1. This is an appeal by the Secretary of State against a decision of the First-tier Tribunal (Judge D Birrell) allowing an appeal by the applicant on asylum and human rights grounds against the decision of 9 December 2015, refusing his international protection claim. In this decision I will refer to the parties as they were before the First-tier Tribunal, the applicant as the appellant and the Secretary of State as the respondent.

Background

2. The appellant is a national of Libya born on 29 August 1989. He originally came from Tripoli and is a member of the Zintan tribe. He came to the UK in 2009 with a student visa. From September 2012 to August 2013 he was in Spain on a placement as part of his studies. In February 2013 he attempted to return to the UK but was refused entry, having been told that his visa had been cancelled. He returned to Spain as his visa was still valid there and in August 2013 he returned to Libya so that he could apply for a visa to return to the UK to study. A visa was duly issued and the appellant left Libya and came to the UK on 8 March 2014. He applied for asylum in September 2014 but did not attend the interview as he hoped the situation in Libya would improve. He thought about going to Turkey and waiting for things to improve but did not do so and in July 2015 he applied again for asylum.

3. He based his claim firstly on the fact that his father was a high-ranking member of the Gaddafi regime and had been ambassador in Bosnia-Herzegovina, having previously held other important posts in the regime. Secondly, he said that he would be at risk as a member of the Zintan tribe which had been driven out of Tripoli and thirdly, on the basis that he was now an atheist.

4. The judge did not accept that the appellant would be at risk because of his relationship to his father. She accepted that his father might well be at risk but did not accept that the appellant had ever been targeted because of this relationship and there was no evidence that he himself had ever been at risk as a supporter of the previous regime [39]. The judge also rejected his claim based on his membership of the Zintan tribe. She accepted that his brother had been detained and his cousin killed but found that there was no suggestion that this related to the ethnicity of the family [40].
5. The judge went on to consider the claim based on the appellant's atheism. The respondent had accepted that he was an atheist but was not satisfied that this would place him at risk on return for the reasons set out at paras 13-15 of the decision letter.
6. The judge accepted that in his asylum interview, when asked why he was concerned about returning to Libya, the appellant had focused on his political links with the former regime and his tribal ethnicity and had not relied on his atheism. She said that this would have caused her concern if she had any doubt that he was genuinely an atheist but she was satisfied that he had abandoned his religious faith as this had been a consistent factor in his history, even though he may not have explicitly linked it to his concerns about returning. The judge noted that at page 105 of the appellant's bundle there were conversations with friends on Facebook in which the appellant had expressed such views in 2012 and in his NASS application made in August 2015 he had stated that he was not religious.
7. The judge then said at [41]:
"...the appellant would not be expected to lie about his religious views. The respondent relies in the refusal letter on the declaration of the NTC that there would be no discrimination on the basis of religious beliefs. I note of course that those who enacted this declaration are no longer in power and protecting the rights of people to follow their own religious practices is not the same as stating in a Muslim country such as Libya that apostasy is acceptable to any of the groups seeking power and the report at page 314 of the appellant's [documents]confirmed that this was the case even at the time of the declaration relied on. Given the rise of Islamic State in Libya that must in my view add to the risk of persecution for adhering to such views."
Accordingly, the judge accepted that the appellant would be at risk as an atheist.
The Grounds and Submissions
8. In the respondent's grounds it is argued that the judge had no background evidential basis for finding that atheists were persecuted or experienced serious harm in Libya. The fact that the NTC was no longer in power was not evidence that an atheist or non-believer of Islam would be at risk in all parts of Libya, including any non-Muslim areas of the country. In the absence of any such evidence, it is contended that the judge's finding was wholly flawed.
9. Permission to appeal was granted by the First-tier Tribunal on the basis that the judge had relied on a passage in the US State Department Report of 14 October 2015 (page 314 in the bundle) but not on any other country evidence and the passage relied on arguably did not appear to support sufficiently the judge's finding.
10. Mr McVeety adopted the grounds submitting that the evidence referred to by the judge at page 314 did not provide a sufficient basis for allowing the appeal. It failed to consider whether there were parts of the country where the appellant would not be at risk of persecution as an atheist. There was no consideration of whether he would act discreetly on return. The entries on Facebook were only to a limited number of people, none of whom appeared to be Libyan. The appellant had not told his family of his religious views. He argued that the judge had failed to consider all the relevant evidence and had failed to take into account how the appellant would behave on return.
11. Mrs Johnrose submitted that the judge did not have to refer to all of the evidence. Libya was a Muslim country and there were areas under the control of Islamic extremists. There was no need for the judge to consider the issues raised in HJ (Iran) [2010] UKSC 31 in the light of the evidence that non-Muslims had been targeted by a number of groups. Her findings and conclusions, so she argued, were properly open to the judge for the reasons she gave.

Assessment of whether the Judge erred in law
12. The document referred to by the judge at page 314 is the US State Department Report "2014 Report on International Freedom: Libya, 14 October 2015". This refers to the interim constitution which provides that Islam is the state religion and Sharia is the principal source of legislation but accords non-Muslims the freedom to practise their religion. The report records that while the constitution bans discrimination based on religion, the government did not prevent violent extremist groups from taking advantage of the post-revolution security vacuum to attack religious minorities. When considering the legal framework, the report records that:
"There is no law providing for individuals' right to choose or change their religion or to study, discuss or promulgate their religious beliefs. Neither is there a law prohibiting conversion from Islam to another religion or prohibiting proselytising. The law prohibits 'instigating division' and insulting Islam or the prophet Mohammed, charges that could carry a maximum sentence of death."
13. The report says that the government was unable to maintain law and order through its own formal justice and security structures relying on a variety of groups, revolutionary brigades, tribal militias, local strongmen outside the armed forces and police to support local security. It also records that members of minority religious groups, primary Christian foreigners, worship with minimal restrictions. It further records that the eastern city of Derna was controlled by a number of violent extremist groups which were widely reported to have restricted Sunni Muslims' freedom to worship and had reportedly established a Hisbah unit of patrolling militiamen who enforced compliance with Sharia according to their interpretation of Islamic practice. Members of these groups reportedly beheaded at least four individuals in November 2014 and were responsible for the execution of seven Egyptian Coptic Christians in February 2014.
14. Whilst in many ways this report makes bleak reading, I am not satisfied that it provides an adequate evidential basis for what is essentially a blanket finding that atheists are at risk in Libya without further consideration of an applicant's own particular circumstances including how he would behave on return and what the position would be in his place of return.
15. I am satisfied that, when considering whether the appellant would be at risk as an atheist, the judge should have considered how he would behave on return applying the approach set out by the Supreme Court in HJ (Iran) of considering whether the appellant would act discreetly on return and, if so, why. In the appellant's witness statement at para 20 he says that he has been an atheist since Ramadan 2012. He has not fasted or practised any Islamic practices since this time. He adds that his family are not aware of this and if they became aware, they would disown him. He includes in his evidence screenshots of conversations between himself and friends in the UK and Spain dating back to 2012 but, as Mr McVeety points out, these comments are not addressed to anyone in Libya.
16. I accept there is evidence to support an argument that an atheist known to have given up the practice of Islam would be at risk in areas where Islamic militants are in control but this fails to consider how the appellant in his particular circumstances would behave and why, how he would be perceived and what the position would be in other areas of Libya not under such control. In summary, I am satisfied that the judge failed to take all relevant evidence into account and failed to apply the principles set out in HJ (Iran) referred to at para 6 of the appellant's skeleton argument before the First-tier Tribunal.
17. In these circumstances I am satisfied that the judge erred in law such that the decision should be set aside. Both representatives accepted in these circumstances that the matter should be remitted to the First-tier Tribunal for further consideration. This is to proceed on the basis that the judge's findings of fact that the appellant would not be at risk because of his relationship to his father or claimed support for the Gaddafi regime or because of his ethnicity as a Zintan are to stand as is the finding that the appellant is an atheist.
18. However, I am satisfied, in the light of the changed circumstances in Libya and the decision in FA (Libya: art 15(c)) Libya CG [2016] UKUT 413 which replaced AT and Others (article 15(c): risk categories) Libya CG [2014] UKUT 318 in respect of the assessment of the article 15(c) risk, that the appellant should be allowed to pursue the appeal not only on asylum grounds as an atheist but also on humanitarian protection grounds under article 15(c).

Decision

19. I am satisfied that the First-tier Tribunal erred in law such that the decision should be set aside. The appeal is remitted to the First-tier Tribunal for reconsideration of whether the appellant would be at real risk of persecution as an atheist or is entitled to leave on humanitarian protection grounds. The appeal is to be listed before a different judge.

20. No anonymity direction was made by the First-tier Tribunal but in the light of the issues raised in the asylum appeal, I am satisfied that this is a proper case in which to make an order as set out in italics at the head of this decision.

Signed H J E Latter Date: 13 February 2017

Deputy Upper Tribunal Judge Latter