Tribunal decisions

The decision

St

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/05573/2016
PA/05574/2016

THE IMMIGRATION ACTS

At North Shields
Decision and Reasons Promulgated
on 4th January 2017
on 28th February 2017

Before

DEPUTY JUDGE OF THE UPPER TRIBUNAL FARRELLY

Between

MR.AAI
MR.AAE
(ANONYMITY DIRECTION MADE)
Appellant
And

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mrs. M. Cleghorn, Counsel, instructed by Duncan Lewis and Co, Solicitors.
For the Respondent: Mr. A. McVeety, Presenting Officer.

DECISION AND REASONS

Introduction
1. The appellants are father and son respectively, born in October 1964 and April 1993. They are citizens of Libya.
2. In February 2013 they claimed protection from the respondent which was refused, with their appeals being dismissed in April 2013.They made further representations, the last of which was refused in May 2016.They then appealed.
3. The appeals were heard by Judge of the First-tier Tribunal Fisher on 2 September 2016 at North Shields. They were represented then, as now, by Mrs Cleghorn. Their appeals were dismissed.
4. First-tier Tribunal Judge Fisher started with the 2013 decision of the First-tier. That decision made adverse credibility findings against both appellants. The first appellant’s studies were funded by the previous Libyan regime. It was accepted that some of his relatives might have been killed in the civil war. However, the judge found no evidence that the appellants’ family experienced difficulties with the current regime or the militias. The first appellant had been able to return to Libya in 2012 and his subsequent return to the United Kingdom was not because of any risk of persecution. The judge did not accept the second appellant had been threatened.
5. Having adopted these conclusions First-tier Tribunal Judge Fisher concluded that the issue outstanding was whether subsequent activities by the appellants would place them at risk on return. The judge concluded their internet activity had a very limited circulation; principally to people resident outside Libya. First-tier Tribunal Judge Fisher also concluded that a conference they had helped arrange would not cause them any problems on return to Libya. In summary, the judge was not satisfied their activities in the United Kingdom since 2013 would place them at risk. Some risk may exist in Sirte where they were from but they could safely live in Tripoli where they had a property.
The Upper Tribunal
6. In seeking leave reference was made to the decision of FA(Libya : article 15 (c))Libya CG [2016] UKUT 00413.It was contended that the family could not reasonably relocate to Tripoli and the judge had not been open to the possibility that the core of their claim could be true notwithstanding adverse findings in respect of aspects. The second argument was that the judge did not have regard to the dangers of travel particularly with the first appellant’s profile. The decision was also challenged in relation to the country information.
7. Permission to appeal was granted primarily on the basis that the judge, having found there would be a risk in Sirte, arguably erred in concluding the family could relocate within Libya; focusing on their apartment in an unidentified part of Tripoli.
8. At hearing Mrs. Cleghorn referred to the practical difficulties of returning to Iraq as the airport at Tripoli was now closed. It was not disputed that the appellant had a tribal link with the late Col Gaddafi. Recent country information indicated that there was access via a military run airport but this could present problems for the appellant on arrival. If the family could get beyond the airport they would face risks at the various checkpoints when seeking to relocate. Mr McVeety accepted that the country situation had changed as mentioned at paragraph 11 of FA (Libya : article 15 (c)) Libya CG [2016] UKUT 00413. This rendered the guidance given in AT and others Libya CG [2014] UKUT 318 unreliable in relation to the article 15 (c) risk.
9. An additional ground introduced by consent by Mrs.Cleghorn was in relation to paragraph 276 ADE of the immigration rules. Reference was made to the length of time the family had been in the United Kingdom save with short breaks.
Consideration
10. First-tier Tribunal Judge Fisher heard the appeals on 2 September 2016. The judge at paragraph 24 referred to the first appellant returning to Libya with his family in December 2012.They were less than candid as to their intentions; namely, his family was to remain there and he return to complete his studies. He had denied this but was contradicted by the statement prepared for the original hearing. The conclusion of First-tier Tribunal Judge Fisher was that he had intended to leave his family in Libya and was now seeking to distance himself from this fact. The leave application does not challenge the adverse credibility findings made but makes the point that this did not render other aspects of his claim unbelievable. His credibility was relevant to his claim that his flat in Tripoli had been taken by the militia and the absence of family in Libya.
11. The decision of FA (Libya : article 15 (c)) Libya CG [2016] UKUT 00413 was promulgated on 7 September 2016. The judge was aware of the decision and referred to it at paragraphs 25 and 31. The judge dealt primarily with the appellant's activities subsequent to the 2013 decision. The conclusion at paragraph 29 was that those activities would not place them at risk. The judge concluded that the family situation was not substantially different to when they had previously returned to Libya.
12. Regarding humanitarian protection, the judge referred to FA (Libya : article 15 (c)) Libya CG [2016] UKUT 00413 and the guidance that whether there was a 15 (c) risk was to be determined on the individual evidence pending further country guidance. At paragraph 32 the judge rejected the claim that the first appellant’s flat in Tripoli had been seized. The judge indicated that had the family been returning as internally displaced persons the outcome might have been different.
Conclusions
13. The decision is well written and it is obvious the judge carefully went through the evidence of the appellants and correctly adopted the first decision as the starting point. The focus was upon the risk from the appellants’ activities in the UK since the previous decision.
14. There is an absence of reference to the more recent changes in the country and the risk to civilians and the practicalities of travel. Such features are relevant to the reasonableness of relocation given that the judge accepted they would be at risk in Sirte.
15. Paragraph 8 of FA (Libya : article 15 (c)) Libya CG [2016] UKUT 00413 states:
… 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.
16. The situation in Libya is constantly changing. That does not mean that up-to-date reports render a decision which follows country guidance unsafe. However, if it is demonstrated that they have been substantial changes affecting the risk assessment the situation is different. It is my conclusion that the country information does indicate changes have occurred in relation to return to the country and travel within the country and the general security situation. This is not adequately reflected in the decision and in relation to the appellants circumstances when the reasonableness of relocation is considered. The change in the country combined with the need to determine the 15 (c) risks on the basis of the individual evidence pending a further country guidance case renders the decision unsafe. On this basis I set the decision aside and remit the matter for rehearing de novo before a freshly constituted First-tier tribunal.
Decision.
The decision the First-tier tribunal dismissing the appeals is set aside and the matter remitted for hearing de novo to a freshly constituted First-tier tribunal.

Deputy Upper Tribunal Judge Farrelly.

Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/269) I make an anonymity order. Unless the Upper Tribunal or a Court directs otherwise, no report of these proceedings or any form of publication thereof shall directly or indirectly identify the original Appellant. This direction applies to, amongst others, all parties. Any failure to comply with this direction could give rise to contempt of court proceedings.

Deputy Upper Tribunal Judge Farrelly.

Directions.
1. Relisted for a de novo hearing before a freshly constituted First-tier tribunal.
2. The appellant's representative should prepare an addendum to the country information setting out the current points of access to Libya and travel to the major cities, particularly Tripoli. Information about the general risks for overland travel and within the cities should be provided.
3. The appellant's representative should set out the claimed enhanced risk factors for the appellants, setting out in summary form the evidence relied upon.
4. The appellants’ representative should seek to provide this material to the respondent within four weeks of the hearing date. It is an open to the respondent to provide additional country information considered relevant.
5. It is open to the appellants to argue paragraph 276 ADE.
6. An Arabic interpreter should be arranged for the hearing.

Deputy Upper Tribunal Judge Farrelly.