Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/02674/2015
PA/02841/2015

THE IMMIGRATION ACTS

At Liverpool
Decision and Reasons Promulgated
On: 19th January 2017
On 1st March 2017

Before

DEPUTY JUDGE OF THE UPPER TRIBUNAL FARRELLY

Between

MRS. FBTA
MR. FAAA
(ANONYMITY DIRECTION MADE)
Appellant
And

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr. Sinker, Counsel, instructed by One-Source Solicitors.
For the Respondent: Mr G. Harrison, Presenting Officer.

DECISION AND REASONS
Introduction
1. The first appellant came to the United Kingdom as a student and the second appellant, her husband, came as her dependent. They were issued with visas valid from September 2014 until June 2015. Both are nationals of Libya.
2. They arrived in October 2014 and in May 2015 made a claim for protection. Their applications were refused. Their appeals to the First-tier Tribunal where heard in September 2016 by Judge of the First-tier Tribunal Alis. The appeals were dismissed.
3. The claim was that the first appellant worked for an oil and gas company in Libya as a database specialist. She started to receive threats but continued at her work. In August 2014 there was an anonymous note attached to the windscreen of her car asking to meet. She attended the meeting along with her husband and learnt that a militia wanted information about the location of oil wells belonging to the company. They threaten harm if she did not provide this. She asked for time. She did not report the matter to anyone.
4. Fortuitously her employer had agreed to fund her studies in the United Kingdom. Having obtained a visa they left. She did not claim protection on arrival; claiming she believed the situation might improve and she was fearful her employer would dismiss her.
5. Whilst here they availed of IVF treatment paid for under the company BUPA scheme. They now have a daughter, born in April 2016.
6. The respondent accepted the first appellant was employed by an oil company as she claimed. However, her account of being threatened was not accepted and credibility issues were raised. The appellants’ representative argued that the claim was credible. The decision of AT and others (article 15(c): risk categories Libya) CG [2014] UKUT 318 was relied on in the submission that a return to Tripoli would place them at a 15(c) risk of indiscriminate violence.
7. First-tier Judge Alis did not find the claim plausible and the asylum claims failed. The judge questioned her going to a meeting as claimed. The fact she did not tell her company took away from her credibility. The delay in claiming also detracted.
8. The judge then considered the 15 (c) risk and referred to the country guidance decision of AT and others (article 15(c): risk categories Libya) CG [2014] UKUT 318. Reference was made to the latest Country Information and Guidance Report dated June 2016 which, along with other reports, indicated conditions in Libya had worsened following the overthrow of the late Pres Gaddafi. The information did not suggest that Tripoli, where the family were from, was an area at risk and it was noted that immediate family members still remain there. The judge concluded the appellants were not entitled to humanitarian protection.
9. The judge also had regard to the family’s private life and paragraph 276 ADE and the question of a reintegration into Libya. Regard was also had to section 55 of the Borders, Citizenship and Immigration Act 2009 in relation to the appellants’ child. Section 117 was also considered. The judge concluded that it would not be disproportionate to require the appellants to leave.
The Upper Tribunal
10. The application for leave to appeal contended that the situation in Libya had materially changed since AT and others (article 15(c): risk categories Libya) CG [2014] UKUT 318.
11. Permission to appeal was refused in relation to the challenge to the judge’s credibility assessment. Permission was granted in respect of the article 15 (c) assessment. The decision of FA (Libya : article 15 (c))Libya CG [2016] UKUT 00413 was promulgated on 7 September 2016. It referred to the numerous changes in Libya since November 2013 when AT and others (article 15(c): risk categories Libya) CG [2014] UKUT 318 was heard. The conclusion was that those changes meant the guidance given there on the article 15 (c) could no longer be relied upon. Permission was granted on the basis it was arguable the judge erred in law in applying AT and others (article 15(c): risk categories Libya) CG [2014] UKUT 318 as guidance.
Consideration.
12. The judge did not find the appellant credible and dismissed her claim to protection under the Refugee Convention. No challenge to this finding has been made.
13. From paragraphs 52 onwards the judge went on to consider the article 15 (c) risks. There was reference to the June 2016 Country Information and Guidance Report indicating that conditions had worsened since the decision of AT and others (article 15(c): risk categories Libya) CG [2014] UKUT 318. That decision was premised on conditions as at November 2013.
14. Although conditions had worsened the 2016 report suggested that the situation in Tripoli would not breach of article 15 (c). The judge commented that the appellants have close family members in the city and its suburbs. The judge referred to a Human Rights Watch report of January 2016 which referred to clashes in Tripoli with Isis and Daesh present in western Tripoli. There was also a reference to healthcare issues in Tripoli. The situation was described as fluid.
15. At paragraph 64 the judge referred to AT and others (article 15(c): risk categories Libya) CG [2014] UKUT 318 and limited returns via Tripoli airport using scheduled airlines via third countries from amongst others British Airways. The airport was considered to be safe with little immediate danger flying into or out. There was reference to road travel having improved. The judge concluded the situation remained much the same and there was no article 15(c) risk.
16. In FA (Libya : article 15 (c))Libya CG [2016] UKUT 00413 it was stated at paragraph 8 :
…there is no intention that the guidance should be followed when the situation in the country concerned has changed substantially since the guidance was issued. Consistency is a virtue in a judicial system, but it does not displace the duty to determine cases correctly when the passage of time, and events since the evidence considered in the Guidance case, give real reason to say that the guidance either should not be followed or should be applied with caution.
17. The Upper Tribunal said that pending a new authoritative analysis of the 15(c) risk, appeals should be determined on there own evidence.
18. FA (Libya : article 15 (c))Libya CG [2016] UKUT 00413 is not referred to in the decision of First-tier Judge Alis . Mr Harrison has argued that although it was not referred to the judge did carry out a factual analysis in relation to the appellants and concluded they can safely return to Tripoli. Mr. Sinker referred me to paragraph 76 of the decision where the judge had stated that AT and others (article 15 (c): risk categories Libya) CG [2014] UKUT 318 was good law whereas the position has changed.
Conclusion
19. Although the judge referred to country information subsequent to AT and others (article 15 (c): risk categories Libya) CG [2014] UKUT 318 he must have been influenced by the guidance given. The head note of that decision was that there was not such a high level of indiscriminate violence in Libya as to mean that substantial grounds exist for believing that an individual would, solely by being present there, face a real risk which threatens his or her life or person. Consequently, the judge’s starting point was the premise of that country guidance case: that there was no such risk. For a First tier tribunal not to follow a country guidance case there would need to be very strong evidence. This must have influenced the judge. Had the judge been aware of FA (Libya : article 15 (c))Libya CG [2016] UKUT 00413 where a change in country conditions was acknowledged he may have been more receptive to subsequent information. Because of this it would be unsafe for the decision to stand.

Decision
The decision of First-tier Judge Alis dismissing the appeals materially erred in law and cannot stand.
The matter is remitted to the First-tier Tribunal for a rehearing in relation to the article 15(c) risk for the appellants. They are at liberty to raise a claim based on private and family life.
The dismissal of their claim to asylum shall stand.

Deputy Upper Tribunal Judge Farrelly.

Directions.
1. The appeals are to be relisted in the Fist-tier Tribunal before a judge other than First-tier Judge Alis. The focus in the appeal should be upon the article 15(c) risk for these appellants on the basis they would be returning to Tripoli.
2. The grounds of appeal are limited to an assessment of the article 15 (c) risks and any claim the appellants wish to advance on the basis of private and family life.
3. In preparing for the hearing on the article 15 (c) issue the appellants representative should focus upon to situation in Tripoli, including the security situation and facilities available to the general populace such as healthcare. They should also be in a position to indicate what available family support there is and the employment opportunities for the appellants.
4. The respondent should provide information about access to the country particularly to Tripoli and travel from the airport at Tripoli or any outlying base to the surrounding area.
5. The appellants’ representative should advise if they require an Arabic interpreter.
6. The claim under the Refugee Convention has been dismissed and this remains a position. The negative credibility points in respect of that claim shall stand.

Deputy Upper Tribunal Judge Farrelly.