Upper Tribunal (Immigration and Asylum Chamber)

Before
SENIOR IMMIGRATION JUDGE STOREY


Between
[amh]
Appellant

and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Miss G Patel instructed by Jackson & Cantor Solicitors

For the Respondent: Mr P Deller, Senior Home Office Presenting Officer

DECISION AND DIRECTIONS
1. The appellant is a national of Libya. He challenges the decision of First-tier Tribunal (FTT) Judge Manuel in September 2011 dismissing his appeal against a decision by the respondent dated 9 June 2011 refusing to grant him asylum and giving directions for his removal.
2. It is unnecessary for me to furnish much detail because the parties were in agreement with me that the FTT judge materially erred in law. The judge found that the appellant was a black Libyan and member of the Bla’za tribe whose home area was just outside Zawiya and that as a black Libyan he and his family had suffered discrimination. Nevertheless the judge did not consider the appellant would be at risk on return because, having (along with his family) been involved in anti-Gadhafi activities, the appellant “would be able to show he had not been a supporter of Gadhafi”. In so finding it does not appear that the judge based himself on the background country information which on its face appeared to suggest that black Libyans were perceived purely on the basis of their ethnicity to be pro-Gaddafi and that in the confusing circumstances still prevailing at the date of the hearing, careful individual or rational judgements by the new regime would not necessarily be made.
3. The FTT’s judge’s treatment of Article 15(c) was unsatisfactory. The appellant had claimed he would be at risk on return to Libya by virtue of the high level of indiscriminate violence there. The FTT judge’s response at paras 61-62 was to state that:
“61…Aside from the fact that the SOS has undertaken not to remove failed asylum seekers to Libya at present, I take account of the fact that the UK government has not accepted, even at the height of the conflict, that Libya is in a state of internal armed conflict.

62. I conclude therefore that there are not substantial grounds for believing that the Appellant would face a real risk of suffering serious harm if he is returned to Libya…”

4. With respect to the FTT judge, the fact that the Secretary of State had undertaken not to remove failed asylum seekers to Libya at that time was irrelevant to his task. He was obliged to consider the position hypothetically in terms of whether, if returned, the appellant would be at risk. Further, the FTT judge was not conducting a mere review of the respondent’s decision and so the fact that the respondent did not consider there was an armed conflict in Libya at that time was no more than one aspect of the evidence and did not without more warrant the conclusion that “therefore” the appellant was not at risk.
5. I observe that at the date of hearing there was still a No-fly zone in force in Libya and fighting was still continuing. It was certainly arguable on the available evidence that there was a state of armed conflict in the country as a whole or parts of it and it is also the case, of course, that in QD (Iraq) the Court of Appeal did not appear to consider that for Article 15(c) to be engaged it was even necessary for there to be an armed conflict; the essential matter was the existence of a high level of indiscriminate violence.
6. For these two reasons I consider that the FTT judge materially erred in law and that his decision is to be set aside. I should clarify, however, that there was no challenge in this case to the judge’s primary findings of fact, only to his application to those findings of correct legal criteria. Hence his primary findings of fact shall stand.
7. It may assist if I comment on a further aspect of the FTT judge’s decision.
8. In his treatment of the issue of risk on return, the FTT judge appeared to consider that the Court of Appeal judgment in HH and Others (Somalia) [2010] EWCA Civ 426 established that so long as the precise route of return to a country was not ascertainable, it was not necessary for the decision to deal with whether there would be risk on return arising from the precise point of entry. However, in relation to Libya, the reason for the inability to identify a point of return was arguably a concern that there was no safe part of the country. That being so I consider it at least arguable that HH & Others cannot be prayed in aid to prevent assessment of risk on return. Further, if it is the case that the respondent has only ever identified Tripoli as a point of return for returnees to Libya (and Tripoli was at the relevant time still affected by a no-fly zone), it is at least arguable that there was no proper basis for considering the route of return uncertain.
9. I raised with the parties whether this case would be suitable to be joined with other cases that have been identified as potential country guidance case on Libya (one of them also having Jackson and Cantor as representatives – AA/04789/2011 AT). Both representatives said they considered this case would be a helpful addition, enabling the Tribunal to consider not just generic risk but risk to significant categories of returnees. I explained to them that the decision on whether to join this case would be for the Country Group Convenor but that the parties would be notified one way or the other as soon as possible.
10. For the above reason the FTT judge materially erred in law and his decision is set aside, with a notice concerning a continuation hearing to be sent to the parties shortly.
Signed Date
Dr H H Storey
Judge of the Upper Tribunal

APPENDIX B
ERROR OF LAW DECISION-HKA

Heard at Field House	Determination Promulgated
On 16 September 2011
	…………………………………

Before

SENIOR IMMIGRATION JUDGE STOREY

Between
[hka]
Appellant

and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent


DECISION AND DIRECTIONS

1. 
   The appellant is a national of Libya. In a determination notified on 12 May 2011 the First-tier Tribunal (Immigration Judge Duff) dismissed the appellant’s appeal against a decision of the respondent on 24 March 2011 to refuse to grant asylum and to remove her as an illegal entrant. Permission to appeal to the Upper Tribunal having been granted, the matter came before me to decide whether the FTT materially erred in law.
   

2. 
   Both parties were in agreement with me that the IJ had materially erred in law in failing to address the potential difficulties the appellant would have on a hypothetical return to Tripoli in early May 2011 when the Gaddafi regime was still in power and when it was not in dispute that the appellant is from Benghazi and is of the A tribe. The IJ based his decision on an assessment of likely risk to the appellant on the basis of her return to Benghazi and further on his assessment that she and her brother “could make a claim for Egyptian nationality, because of the nationality of their mother”. Given that the respondent contemplated return to Libya via Tripoli the IJ was obliged to consider risk at the point of return and the issue of whether the Libyan authorities there would have seen her as of adverse interest given her place of residence and tribe. Given that there was no evidence to show that the appellant had Egyptian nationality by operation of law, it was also an error for the judge to have regarded that as a reason why the appellant would not face a real risk of persecution in Libya.
   

3. 
   Both parties were also agreed that the above errors did not, however, impinge on the IJ’s principal findings of fact and indeed the challenge raised against the IJ’s decision was not based on a challenge to credibility. Accordingly the IJ’s findings of fact in relation to the appellant shall stand. The only accepted facts are that she is a national of Libya born on 6 November 1979, is a female, is from Benghazi and is from the A tribe.
   

4. 
   In response to questions from me both parties also confirmed they were happy for the case to proceed as an intended country guidance case. On current information it is likely to be joined to be heard with the case of her brother, Mr [AE-S] reference number AA/04537/2011.
   

5. 
   It was agreed that it would be useful to hear oral evidence from Dr Joffe assuming he is available on the date fixed for the hearing. He has already submitted a report but it will obviously need updating.
   

6. 
   The next step will be for the Tribunal to fix a date for hearing allocating sufficient time for oral evidence from Dr Joffe.
   

7. 
   The appellant’s representatives are directed to submit a supplementary report from Dr Joffe at least 5 working days in advance of the date fixed for substantive hearing. This direction is a complement to standard Tribunal directions.
   

8. 
   Closer to the date fixed for hearing the Tribunal will hold a CMR hearing to ensure that preparation of materials is in hand and that the country guidance issues are specifically identified (given the fast-changing situation presently it would be premature to seek to specify those now, although both parties are aware in general terms of the need to examine which categories of person, if any, are likely to face risk on return to Libya at the date of hearing before the panel who will do the country guidance case).
   

Signed Date

Judge of the Upper Tribunal

APPENDIX C
ORAL EVIDENCE OF AMH

1. 
   In examination-in-chief the appellant adopted his witness statements dated, 17 August 2011, 7 March 2012 and 9 October, 2013. In relation to paragraph 8 of the witness statement dated 7 March 2012, there is a correction in that it was in the town of Al-Kuffrah that there were two tribes. The town was not called Alkarah. Altabo should read Al Tabou. The names of the tribes have been mistyped in the statement.
   

2. 
   In cross-examination he agreed that he had come to the UK in October 2010 as a student but after the revolution began in Libya he claimed asylum, in May 2011. He was interviewed in connection with his asylum claim and he made the statement dated 17^th August, 2011, reproduced at pages 324 to 342 which he had adopted today.
   

3. 
   Before he came to the United Kingdom to study he lived in Zawiya with his wife and five children. Another child has been born since he has been here. Before leaving he moved his wife and children to live with his parents in a village just outside Zawiya. His wife and children were living in the village of Belazi when he made his claim. Both his parents also lived there. His wife and children were living with his parents. His children were born in 2003, 2004, 2005, 2006, 2009 and one in 2011. His children are now aged between 2 and 10 years old.
   

4. 
   He has four brothers and three sisters. His brother, AO was living in Tripoli when the appellant left. He had been living there since 2009. The appellant’s brother, S, lives in Egypt and he had lived there since 2008. Another brother, H, lives in Zawiya but separately from his parents, and his other brother, A, also lives in Zawiya separately. His sister, Se, lives in Zawiya separately and his second sister Su lives in Al Ujelad, which is west of Zawiye. His third sister, A, lives in Tripoli. He has uncles and aunts living in Tripoli, Zawiya and Zuwara. S is the only member of the family living outside Libya. All the appellant’s uncles and aunts are of the same ethnicity.
   

5. 
   The appellant confirmed that he had been in contact with his family and friends when he made his claim. AO at that time was in Tripoli. He agreed that he had said that his brother did not have problems there and was better than before.
   
6. 
   He was referred to para 33 of the statement which starts at page 324. The appellant agreed that his brother AO moved to Tripoli and in the first sentence of that paragraph he said that his brother has had no problems in Tripoli. He agreed that he went there because he had ethnic problems in his area. He agreed that his brother’s move to Tripoli but that was not without problems. The appellant agreed that he had not been able to contact his brother since shortly before he moved to Tripoli. He was referred to his asylum interview at question 226 where he explained that when he had said that his brother was better than before he was making an assumption based on the fact that he had not heard that he had been having problems from anybody.
   
7. 
   To avoid problems his brother was going to work and returning from work and did not go out, avoiding problems. This was in Tripoli. Before he came to the United Kingdom he knew his brother had gone to Tripoli and that was when contact with him terminated. His brother told him about the problems.
   
8. 
   He was referred to his witness statement which states that he had not been able to contact his brother since before he went to Tripoli. The appellant explained that he had heard that his brother had problems from other members of the family. The family had told him of his problems in Tripoli and they got this from him. He was referred to his evidence moments earlier when he said that his brother had told him of his problems, and the appellant agreed that that was the case.
   
9. 
   He was referred to para 46 of the same witness statement of 17 August 2011 where he said that at that date his family were still staying at his parents’ house near Zawiye, not because it was safe but because they were scared to travel. The remainder of the paragraph was put to him.
   
10. 
    The appellant agreed that that was what he had said. They think it is safer to stay wherever they are indoors rather than to travel. He was then referred to what he had said in his second statement at paragraph 4 and he agreed with the contents. He agreed that his family had continued to live in the village just outside Zawiye with his parents, as had been found by the Immigration Judge, where his parents had always lived.
    
11. 
    It is true that the last time he had spoken to his wife was two weeks before the full hearing, around 20 August. During the conversation his wife had told him that rebels had started to take revenge against black people because it was assumed that they had all fought with Gaddafi and that he had not spoken to her since.
    
12. 
    He agreed that it was alarming to hear that his wife and family were planning to escape and leave their home. This news came only three days after the first witness statement. His first witness statement was on 17^th August, 2011 and it was around 20^th August, 2011 when he spoke to his wife. The appellant said that he signed his statement and then went to court, but it was adjourned. It was after the adjournment that this contact happened. People involved with the revolution entered the area and problems started.
    
13. 
    The appellant agreed that it was an upsetting telephone call to receive and he had not been able to make contact with his wife again. The hearing before the judge had taken place two weeks later. The appellant insisted that he had told the judge about the telephone call. It was pointed out to the appellant that the judge had said that his family remained in Zawiya. It was pointed out to the appellant that even when he applied for permission to appeal to the Upper Tribunal his grounds of appeal stated that his family remained living in Zawiya. He was referred to the grounds dated October 2011. 21. The appellant maintained that he told the Immigration Judge about the call from his wife. Since October 2011 he did not know where the family went to until a friend called HH contacted him who told him that his family went away. He spoke to him when he, HH, was in Libya but he does not know where he is now because all his contacts are cut. He spoke to him in January 2012 and he was in Libya up to that point.
    
14. 
    He was referred to his witness statement dated March 2012 at para 5. (We quote that paragraph of the statement in full:
    

“I was also in touch with my friend HH by telephone. HH told me that there were four tribes who are in control of different areas of Zawiya; Awlad Salkar, Awlad Sowlah, Awlad Ajinah, Iwlad Abdulmula. He told me that sometimes these tribes work together and sometimes they fight each other, but they are all using violence to keep control of their areas of Zawiya, and they are all persecuting black Libyans. HH told me that my father had been beaten up by the rebels. He said that my father had been taken to hospital and this was at the end of January 2012. That is the last I spoke to HH. He told me that the rebels came to my father’s house in Zawiya and beat him and that my wife and children have fled Zawiya, he did not know where they had gone. All my family have left, my father, my mother, wife, children, brothers and sisters. The house is completely empty. HH has been to visit them and found the house been abandoned.”)

15. 
    As to whether up until that point his family had stayed in Zawiye, he does not know as this is what H told him. He said they are not there. They were there when the rebels came to the house and beat his father.
    
16. 
    It was put to the appellant that on this account his family had stayed in Zawiya up until January 2012. He said he believed they stayed until August 2011. He received a call from his wife saying that they were all planning to escape. The call lasted for five minutes and she was scared. He did not know where they stayed until he was told by HH.
    
17. 
    He agreed that he had contacted the Red Cross. He had lost contact with all his family members. It was put to the appellant that he had not mentioned in his witness statement having lost contact with his brothers and sisters. He explained that they all had his telephone number. As to why he had not mentioned in his witness statement that he had lost contact with his brothers and sisters, there was no contact but they have his telephone number.
    
18. 
    The appellant was then referred to page 158 in relation to his contact with the Red Cross. S is his wife, Mu is his father, Ma is his mother, H is his daughter and A is his son. He was asked why the letter only referred to these members of his family and he said he had meant all his family, especially his parents. He was referred to pages 156 and 155 of the bundle. He explained that he had no further documentation because one of the people is called Sarah and he has met her more than once at a place where she meets asylum seekers and she has said that there is no news.
    
19. 
    He was referred to para 42 of his witness statement dated 17 August 2011, in relation to his claim that people had been arrested in Libya as a result of his encouraging them to demonstrate. He agreed that the paragraph was accurate. HH told him that the reasons his friends H and J had been arrested because of him. This is the same HH he had previously referred to. They had been actively demonstrating against Qadhafi. The appellant had encouraged them by phone to demonstrate more. The appellant did not know when they were arrested because he was not there. HH was warning the appellant about going back. The appellant had been one of the reasons why H and J had been arrested. HH remained in Libya until the appellant’s last call in January 2012.
    
20. 
    It was pointed out to the appellant that he had said that HH had fled. The appellant responded by saying that HH went to Tunisia. He went there to make calls and then went back. He received a call from HH while events were taking place. It was some time before 17^th August, 2011 and the appellant did not know when HH returned.
    
21. 
    The appellant said that he had said that HH remained in Libya because he was there the last time he had spoken to him. It was put to the appellant that his account was contradictory in terms of the level of contact with family and friends in Libya. The appellant said he did not understand why it was said to be contradictory. It was only one person he knew who had spoken to him and the second time was his wife. It was suggested to him that he had a wide number of family in Libya apart from his wife and friends. He had three brothers and three sisters, uncles and aunts. However, he does not appear to have given any information about his efforts to contact them. The appellant said that when he came to the United Kingdom he did not inform any of them that he was coming. Everyone was scared and black people especially were being targeted because they cannot really speak.
    
22. 
    Even if his brothers and sisters, uncles and aunts knew that he was coming here, they were all living separately. They could get his telephone number from his wife or anyone else. As to his previous evidence that they had his number, did not have all the numbers to contact everyone.
    
23. 
    It was suggested that if his account was true he would have made efforts to find out from his wider family what had happened. The appellant said that his account was true. His wife was not a Libyan citizen so he could not contact her family. He was thinking of his family and he was worried and because of this he has become diabetic. It was HH who told him about his family. Again it was suggested to him that if he had been worried and anxious to find his family after 20 August 2011 it would have been possible by one of those routes, particularly his family in Zawiye, to find out that they had remained in his father’s house at least until January 2012. The appellant said that HH was the closest to him and he contacted him and he told him about what had taken place.
    
24. 
    In re-examination he said that Zawiye is 45-50 kilometres away from Tripoli, and HH went to Tunisia and then returned. Tunisia is 70 to 100 kilometres away from Zawiye. The appellant’s wife is from Yemen.
    
25. 
    In answer to questions from the Tribunal he said that that he had not tried to make any contact with his wife’s family in Yemen to see whether they might have heard from her because he does not have their telephone number. He does know their address but had not written to them as there are troubles in Yemen as well and that the post was not working. As to whether he had made any contact with his brother in Egypt, he has no telephone number or address for him.
    
26. 
    In further cross-examination he said that his brother was not a famous preacher in Egypt but a normal person. He was only studying engineering in Egypt. He was referred to the witness statement of ESMA (page 344). His brother, S, had been a famous preacher and advised people on Sharia law before he went to Egypt. He met that witness in Bournemouth.
    
27. 
    The appellant said that before his brother went to Egypt this witness had known the appellant’s brother but there was no contact between the appellant and his brother now. The witness had not given the appellant his brother’s telephone number. He did not ask him for his brother’s number.
    
28. 
    As to how it was that his brother was a famous Sheikh in Libya but went to being just an engineering student in Egypt, he was not entirely sure what his brother was studying. He thought it was engineering. His brother went to Egypt to study before events took place in Libya.
    
29. 
    In answer to a further question put by the Tribunal in relation to the witness statement of ESMA (page 344) who states that the appellant's brother had had serious problems in Libya and had to flee to Egypt, it may be that the government was making it hard for him and which is why he thought of going to Egypt to study but he did not go during the troubles. He did not know that, as the witness statement says, Mr A had spoken to his brother twice. He was not aware that this was in Mr A’s witness statement. He knew that he knows his brother and was in contact with his brother. As to why he did not contact his brother in Egypt to see if he had any news of his family. Mr A left the UK and the appellant has lost all contact with him.
    
30. 
    In answer to further questions in re-examination he said that his wife is a Yemeni citizen and ethnically she is “close to black”. When asked if he would explain what he meant he said that she was nearer to black than she would be to white in terms of her skin colour. Her father is black but her mother is mixed race like his wife.
    

APPENDIX D
EXPERT EVIDENCE