Tribunal decisions

The decision

IAC-AH-SAR-V2

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/05126/2016

THE IMMIGRATION ACTS

Heard at Manchester
Decision & Reasons Promulgated
On 8th March 2017
On 29th March 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE D N HARRIS

Between

Mr AHMED N MOHAMED AL-MAHDI
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Pratt, Solicitor
For the Respondent: Mr G Harrison, Home Office Presenting Officer

DECISION AND REASONS
1. The Appellant is a citizen of Libya born on 1st January 1988. The Appellant claims to have arrived in the United Kingdom on 25th April 2015, claiming asylum one month later on 28th May 2015. The Appellant’s claim that removing him to Libya or requiring him to leave the UK would be a breach of his Article 8 rights to private and family life and that it would also be a breach of Articles 2 and 3 of the European Convention of Human Rights. In addition, the Appellant claimed asylum based on a fear that if returned to Libya he would face mistreatment due to his activities for a rebel group in Libya and as a result feared the army. Consequently his claim was based upon a Convention reason due to his imputed political opinion.
2. The Appellant’s claim for asylum was refused by the Secretary of State in a Notice of Refusal dated 5th May 2016.
3. The Appellant appealed and the appeal came before Judge of the First-tier Tribunal Ransley sitting at Manchester on 12th September 2016. In a decision and reasons dated 26th September 2016 the Appellant’s appeal was dismissed on asylum and human rights grounds but was allowed on humanitarian protection grounds.
4. On 5th October 2016 the Secretary of State lodged Grounds of Appeal to the Upper Tribunal. Those grounds noted that the First-tier Tribunal Judge had allowed the appeal on humanitarian protection grounds on the basis of the Appellant’s rights under Article 15(c) of the Qualification Directive. They contended that the judge in her determination at paragraph 44 referred to the country guidance authority of AT and found there was support for the Appellant based on that authority. The Secretary of State points out in the Grounds of Appeal that at the date of hearing and promulgation the country guidance authority for Libya was FA (Libya: Art 15(c)) Libya CG [2016] UKUT 00413 (IAC) and that the judge has applied the findings from AT over the findings of FA.
5. On 17th October First-tier Tribunal Judge Kimnell granted permission to appeal. Judge Kimnell noted that the Tribunal had indicated in FA that each appeal should be decided on its merits but considered that unfortunately the brief quotation from the Country Information Guidance in this case was insufficient to justify the decision to allow the appeal.
6. It is on that basis that the appeal comes before me to determine whether or not there is a material error of law in the decision of the First-tier Tribunal Judge. For the purpose of continuity throughout the appeal process the Secretary of State is referred to herein as the Respondent and Mr Al-Mahdi as the Appellant. Mr Al-Mahdi is represented by Mr Pratt. Mr Pratt is familiar with this matter having appeared before the First-tier Tribunal. The Secretary of State appears by her Home Office Presenting Officer Mr Harrison.
Submissions/Discussion
7. Mr Harrison points out that following guidance given in FA (Libya) country guidance now requires each case to be looked at on its own facts and that what the judge has done in this case is to use the previous country guidance authority of AT, i.e. one of looking at categories in generic terms rather than looking at the individual circumstances of the case. Consequently, each case she submits is case sensitive and the judge has not approached her analysis of this appeal on that basis. He consequently contends that there are material errors of law and that the decision should be set aside.
8. In response, Mr Pratt points out that consideration of AT did not assist the determination process and queries whether any reliance on it would have made a difference to the judge’s decision. He takes me to paragraphs 42 to 47 of Judge Ransley’s decision which is an analysis of current country guidance and points out that since the decision in AT security in Libya has deteriorated and therefore it is appropriate that there should be some reference to it within the decision. He submits that the judge has looked at the position regarding return to Benghazi, pointing out that if the Appellant cannot return there then he would become a displaced person. He believes that if AT were to be taken out of the judge’s decision, then the decision is valid and that there is therefore no material error of law.
The Law
9. Areas of legislative interpretation, failure to follow binding authority or to distinguish it with adequate reasons, ignoring material considerations by taking into account immaterial considerations, reaching irrational conclusions on fact or evaluation or to give legally inadequate reasons for the decision and procedural unfairness, constitute errors of law.
10. It is not an arguable error of law for an Immigration Judge to give too little weight or too much weight to a factor, unless irrationality is alleged. Nor is it an error of law for an Immigration Judge to fail to deal with every factual issue of argument. Disagreement with an Immigration Judge’s factual conclusion, his appraisal of the evidence or assessment of credibility, or his evaluation of risk does not give rise to an error of law. Unless an Immigration Judge’s assessment of proportionality is arguable as being completely wrong, there is no error of law, nor is it an error of law for an Immigration Judge not to have regard to evidence of events arising after his decision or for him to have taken no account of evidence which was not before him. Rationality is a very high threshold and a conclusion is not irrational just because some alternative explanation has been rejected or can be said to be possible. Nor is it necessary to consider every possible alternative inference consistent with truthfulness because an Immigration Judge concludes that the story is untrue. If a point of evidence of significance has been ignored or misunderstood, that is a failure to take into account a material consideration.
Findings
11. The question I need to consider is whether or not, even though the judge has made no reference to FA, whether she has followed the general principles set out therein. FA is authority for saying:
“AT should not stand as an authority on the Article 15(c) risk in Libya. Instead, that risk should be determined on a case by case basis, on the evidence in each individual case, until general up-to-date guidance is again published”.
12. I acknowledge that there is reference to AT within the decision and at paragraph 47 the judge found “on the basis of the applicable country guidance and case law and the Respondent’s most up-to-date 2016 CIG on Libya I find the Appellant has discharged the burden of proof that he qualifies for humanitarian protection”.
13. There is consequently an error of law in the approach that has been adopted by the judge by seemingly placing reliance upon AT. However, that is not the way in which the judge has addressed the appeal. The judge has actually noted the Appellant’s case, his fear at paragraph 14 and noted that he comes from Benghazi. The judge has then gone on to make findings of fact set out in a considerable number of paragraphs within the body of the decision. Consequently, although failing to refer to the current country guidance thus creating an error of law in the judge’s decision, the judge has by addressing this matter as a fact based decision not made an error of law that is material. The bulk of the findings made by the judge are on the specific case advanced by the Appellant and the judge has formed her view based on the Appellant’s personal circumstances. The judge has not based findings on any categories from within AT, all she has done is make mere reference to it briefly extracting a section from the 2016 CIG.
14. Consequently, the ultimate finding is that this decision is fact based and the fact that the judge has failed to specifically refer to the current country guidance authority of FA does not mean that the judge has not considered this case in an appropriate manner. She in fact, for all the above reasons, has and consequently, whilst there is an error of law in her approach, it is not material and in such circumstances, the appeal of the Secretary of State is dismissed and the decision of the First-tier Tribunal Judge is maintained.

Notice of Decision
The decision of the First-tier Tribunal discloses no material error of law and the appeal of the Secretary of State is dismissed and the decision of the First-tier Tribunal Judge is maintained.
No anonymity direction is made.

Signed Date 24th March 2017

Deputy Upper Tribunal Judge D N Harris

TO THE RESPONDENT
FEE AWARD
No application is made for a fee award and none is made.

Signed Date 24th March 2017

Deputy Upper Tribunal Judge D N Harris