NA (Libya) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Flaux,Lord Justice McCombe,Lord Justice McFarlane |
| Judgment Date | 16 March 2017 |
| Neutral Citation | [2017] EWCA Civ 143 |
| Date | 16 March 2017 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C5/2015/0404 |
[2017] EWCA Civ 143
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)
DEPUTY UPPER TRIBUNAL JUDGE MAILER
AA/03013/2014
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice McFarlane
Lord Justice McCombe
and
Lord Justice Flaux
Case No: C5/2015/0404
Ranjiv Khubber and Althea Radford (instructed by Turpin & Miller) for the Appellant
Ben Lask (instructed by Government Legal department) for the Respondent
Hearing date: 9 March 2017
Approved Judgment
Introduction
The appellant is a Libyan national, born on 24 August 1986, who contends that he would be at risk of persecution on return to Libya, such that his removal would place the United Kingdom in breach of its obligations under the Refugee Convention 1951, or such that he is entitled to a grant of Humanitarian Protection under paragraph 339C of the Immigration Rules, or leave to remain under Appendix FM of the Immigration Rules or discretionary leave to remain on the basis of his rights under the ECHR. In essence, his case is that the Libyan authorities would perceive him as loyal to the Gaddafi regime, because (a) he previously lived in Khoms, a former Gaddafi stronghold, and (b) his mother is the second cousin of Colonel Gaddafi's second wife.
The Respondent refused his application for asylum by a decision dated 25 April 2014. The appellant appealed that decision to the First Tier Tribunal (First Tier Tribunal Judge Wellesley-Cole) which heard his appeal on 20 June 2014. The appellant gave evidence and was cross-examined. His wife also gave evidence, although there was no cross-examination of her. As the judge recorded in her determination, broadly speaking the Secretary of State accepted the appellant's factual account, with the exception of the assertion that his mother and Colonel Gaddafi's second wife were second cousins, which was said to be an attempt to bolster his asylum claim.
The judge was referred to the most recent Country of Origin Report on Libya then available to the Secretary of State, the Operational Guidance Note ("OGN") of May 2013. At the hearing both parties were aware that, in November 2013, the Upper Tribunal had heard what was intended to be a Country Guidance case in relation to Libya in AT (Libya) in which a decision was awaited. Neither party invited the First Tier Tribunal to adjourn the present case to await that Country Guidance.
The decision of the First Tier Tribunal
The judge prepared her Determination and Reasons which she signed on 30 June 2014. There was then an unexplained delay (which may have been an administrative one) before the determination was promulgated on 16 July 2014. In her determination, the judge relied in particular on the conclusion in the OGN that perceived Gaddafi loyalists are persecuted and do not in general have access to effective protection. She quoted this passage from the OGN:
"Given the generalised attitude of resentment towards perceived Colonel Gaddafi supporters and fighters, and the force with which the Gaddafi regime sought to subdue the opposition, it is likely that applicants in this category will be able to show a need for international protection. Perceived supporters of Gaddafi are at risk of extra-judicial execution, arbitrary detention, torture, ill-treatment and death in detention […]. Communities perceived to be loyal to Gaddafi have also experienced forced displacements, indiscriminate shelling, looting and burning of homes."
The judge concluded that the appellant would be perceived as a Gaddafi loyalist, given the problems his brothers and cousins had experienced, together with the fact that Khoms generally was seen as a Gaddafi stronghold. His fears of persecution based on imputed political opinion were therefore genuine. She held that the Appellant would not be able to avail himself of the protection of the Libyan authorities, and would not be able to relocate internally. She summarised her findings at [27] of her Determination:
"There is a reasonable degree of likelihood that the Appellant would be at risk of persecution because of his political opinion imputed because the people who are in charge of the country will treat him as pro-Gaddafi and might imprison and probably execute him. This is because when he live in Khoms, everybody worked in the army, it was one of Gaddafi's strongholds and people who lived there were all pro-Gaddafi. If returned to Libya, the border police at the airport would be able to tell where he was from because of his accent. The situation is not yet such in Libya that he could look to the authorities for protection."
On that basis, the appeal was allowed.
On 14 July 2014, the decision of the Upper Tribunal in the Country Guidance case of AT and others (Art 15(c); risk categories) Libya CG [2014] UKUT 318 (IAC) was promulgated, a fortnight after the judge signed her determination in the present case but two days before that determination was promulgated. Neither party drew the attention of the First Tier Tribunal to the decision in AT before the determination in the present case was promulgated. Indeed, despite the submission on behalf of the appellant that the Secretary of State should have done so because she was a party to both cases, that seems to me to be a counsel of perfection. I do not consider that the Secretary of State can be seriously criticised for having failed to bring the decision in AT to the attention of the judge, any more than she can be criticised for not being aware of it.
The decision in AT
As part of the Country Guidance, the Upper Tribunal in AT identified categories of people who would be at risk on return to Libya, and assessed the nature and extent of the risk they faced. In particular, they considered the position of former and/or suspected Gaddafi loyalists or supporters, as follows:
"133 Former high-ranking officials within the intelligence services have been the subject of politically motivated murders […] Dr George emphasised that attitudes towards former members of Colonel Qadhafi's security agencies do not vary from one part of Libya to another. The OGN does not suggest that internal relocation to avoid risk is a possibility for a person in this category.
134 We do not interpret the evidence as limiting the potential for risk only to those who were formerly members of the intelligence services. Others with a close association at a senior level with the former regime we consider equally to be at risk. It is not possible, nor indeed would it be appropriate, to suggest a list describing the type of work or association with the former regime that would potentially be in this risk category. The example most often given in the background and expert evidence is of high-ranking officials within the intelligence services, but other former high-ranking officials are also reasonably likely to be at risk.
135 Self-evidently, the closer an individual was to the centre of power within the Qadhafi regime, the more likely it is that that person would be at risk. Similarly, the further away from the centre of power the converse is true. During and in the immediate post-revolutionary period, those associated or suspected of being associated with the Qadhafi regime as fighters were subject to arbitrary arrest and ill-treatment. According to Dr George, there has been a shift in the pattern of detentions from 2011 onwards in that when there were a lot of ex-Qadhafi fighters at large, there were more people to arrest. Once all the obvious suspects were arrested the rate of arrests tapered off, with most individuals from the Qadhafi era having fled the country or having been detained, resulting in fewer arrests on grounds of sympathy for Qadhafi. Having said that, he also stated that there was still a fervour to hunt down Qadhafi loyalists.
136 We refer to this evidence from Dr George in this context because it indicates that in the revolutionary and the immediate post-revolutionary fever, the degree of association with the former regime which would attract adverse attention is likely to have been less than would now be the case, subject to our assessment in relation to specific groups.
137 We do not consider that the evidence leads to the conclusion that anyone who was associated with the former regime would be at risk of persecutory ill-treatment, serious harm or Article 3 ill-treatment on return. As Dr Porter states in his report dated 14 October 2013, seventy per cent of the Libyan labour force in the time of Qadhafi worked in the public sector so that the "gross majority" of Libyans were in some way associated with the regime, and that such association was especially high in Tripoli. He went on to state that it is not unusual for individuals to have worked for, or to have had family members who have had some relationship with, the previous government. Professor Joffé's oral evidence was that the effect of the Political Isolation Law would be that up to half the population would be excluded from holding office in the new regime.
138 All this serves to emphasise that an individual, fact-sensitive, assessment will be required in every case. That assessment will have to take into account the nature and extent of an individual's actual or suspected past association with the Qadhafi regime and taking into account that having worked for or been associated with the former regime is by no means exceptional in Libya. We consider it unlikely that simply having worked for or been associated with the regime in any capacity whatsoever will be sufficient to create a real risk of harm on return."
In relation to the risk to a person who has or has had a family member associated with the Gaddafi regime, the Upper Tribunal said this:
"141 We...
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