Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/08281/2016

THE IMMIGRATION ACTS

Heard at Glasgow
Decision & Reasons Promulgation
On 3 April 2017
On 4 April 2017

Before

UPPER TRIBUNAL JUDGE MACLEMAN

Between

BASHER ABDALSAED
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

For the Appellant: Mr K Forrest, Advocate, instructed by Anderson Rizwan, Solicitors
For the Respondent: Mr M Matthews, Senior Home Office Presenting Officer

DETERMINATION AND REASONS
1. The appellant is a citizen of Libya, born on 30 November 1972.
2. The respondent refused the appellant’s protection claim for reasons explained in a decision dated 29 July 2016. It was not accepted that any risk arose from association with the Gaddafi regime, even if the appellant had been employed by it, or from the general country situation. The decision relied upon AT and others (article 15 (c); risk categories) CG [2014] UKUT 318.
3. The appellant appealed to the FtT, on generalised grounds which raised no specific issue for decision.
4. FtT Judge Chana dismissed the appellant’s appeal for reasons explained in her decision promulgated on 15 December 2016. She also relied heavily upon AT (see the second of her paragraphs numbered 16; the sequencing has gone wrong).
5. The appellant, having changed his representation, sought permission to appeal from the FtT, based on FA (Libya: art 15 (c)) CG [2016] UKUT 413, a case reported shortly before the hearing in the FtT, but to which the judge had not been referred. The FtT refused permission.
6. The appellant applied to the UT. His grounds say that the FtT’s decision in respect of asylum and human rights cannot be challenged, but that the judge said nothing about humanitarian protection based on article 15 (c), in which respect his case is analogous to FA, and should be remitted to the FtT for like reasons.
7. Permission was granted, on the view that FA required a decision to be reached on the individual evidence, and that the judge’s view might have been wrongly framed by AT and others.
8. Under rule 24 the SSHD refers to policy guidance of January 2017, stating that in general humanitarian conditions are not at a level to breach article 15, although they may do so for some vulnerable persons, or based on particular factors.
9. In a written response, the appellant submits that the FtT took no account of whether article 15 might apply.
10. Mr Forrest in his skeleton argument and in oral submissions argued that the judge erred by failing to note that AT had been superseded and in her approach to “post AT evidence of deteriorating conditions”. He said that the appellant placed before the FtT 3 items of background evidence and policy guidance of the respondent (which is an earlier version of the above, to similar effect).
11. Mr Matthews said that while it was ordinarily an error of law not to apply current country guidance, even although the judge did not have the assistance to which she was entitled from either side, this situation was rather different. In FA, the judge had been asked to find that there was evidence displacing country guidance. The error of law was in declining to do so in absence of any comparison or analysis of the evidence; the judge might have asked for assistance on that issue, but could not simply decline to carry out the exercise. In the present case, the appellant had not argued that there had been deterioration in the general situation such as to entitle him, without more, to protection. He had produced 3 items of background evidence postdating AT but had not submitted that they showed anything substantially different. On reference, they were not such as to show general entitlement to protection, and he did not so argue now. The appellant had produced along with those items, and without comment, guidance to the effect that conditions are not at a level to breach article 15. Having implicitly adopted that position, he could not complain that the judge had gone along with it. The judge looking at the evidence before her on a case-by-case basis as required by FA must have come to the same conclusion. The appellant did not come from any of the most acutely affected areas.
12. The appellant has sought to make the most of the slip into which the judge was led by the shortcomings of both sides in the FtT, but I agree with the submission for the respondent that the error identified is only superficial.
13. Unlike in FA, there was in this case (a) no evidence and (b) not even a poorly specified argument based on general deterioration of country conditions to the point of justifying article 15 protection across the board.
14. The case was fought simply on the credibility of the individual claim, which the judge resolved against the appellant, without any suggestion of legal error.
15. FA does not require that any Libyan case which went against an appellant must be decided afresh; that depends on the case which was before the FtT. Based on the case put by this appellant, even if FA had been applied, the outcome could not sensibly have been different.
16. As I observed at the hearing, if the appellant has any remedy based on general deterioration of country conditions, it is not one which could have succeeded on the materials before the FtT. It is one which would have to be advanced by way of supporting evidence in a fresh claim.
17. The determination of the First-tier Tribunal shall stand.
18. No anonymity direction has been requested or made.

3 April 2017
Upper Tribunal Judge Macleman