Upper Tribunal (Immigration and asylum chamber), 2015-09-07, AA/05398/2014
| Jurisdiction | UK Non-devolved |
| Date | 07 September 2015 |
| Published date | 05 January 2016 |
| Hearing Date | 03 September 2015 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Status | Unreported |
| Appeal Number | AA/05398/2014 |
Appeal number: AA/05398/2014
The Upper Tribunal
(Immigration and Asylum Chamber) Appeal number: AA/05398/2014
THE IMMIGRATION ACTS
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Heard at Manchester |
Decision & Reasons Promulgated |
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On September 3, 2015 |
On September 7, 2015 |
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Before
DEPUTY UPPER TRIBUNAL JUDGE ALIS
mr MKBM
(ANONYMITY DIRECTION MADE)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr Ficklin, Counsel, instructed by Broudie, Jackson & Cantor Solicitors
For the Respondent: Mr Harrison (Home Office Presenting Officer)
DECISION AND REASONS
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The appellant is a citizen of Libya. The appellant first entered the United Kingdom as a student on December 13, 2009 with leave to enter until December 30, 2010. He applied for further leave to remain but this was refused and on July 20, 2011 he claimed asylum. The respondent refused this claim on June 30, 2014 under paragraph 336 HC 395 and at the same time took a decision to remove him under section 47 of the Immigration, Asylum and Nationality Act 2006.
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The appellant appealed under section 82(1) of the Nationality, Immigration and Asylum Act 2002 on July 17, 2014 arguing that if returned he was at risk or persecution and relocation was not possible. He also sought to remain under Articles 2, 3 and 8 ECHR.
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The matter came before Judge of the First-tier Tribunal De Haney (hereinafter referred to as the “FtTJ”) on October 13, 2014 and in a decision promulgated on November 3, 2014 he refused the asylum and humanitarian claims but allowed the appeal under Article 15(c) and under Article 8 ECHR.
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The respondent lodged grounds of appeal on November 5, 2014 and on November 14, 2014 Judge of the First-tier Tribunal Kelly gave permission to appeal finding there were arguable grounds that the FtTJ had erred by failing to give adequate reasons for departing from the country guidance case of AT and others (Article 15c: Risk Categories Libya) CG [2014] UKUT 318 (IAC).
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The appellant’s representative filed a Rule 24 response and accepted the FtTJ’s findings were deficient and invited the Tribunal to list the matter for a full re-hearing of the Article 15(c) claim with each party being permitted to file further evidence as to the current situation in Libya.
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This case originally came before me on March 26, 2015 and on that occasion the representatives invited me to find an error in law in respect of the Article 15c issue and to adjourn the matter for a further mention date on the basis that AT and others (Article 15c: Risk Categories Libya) CG [2014] UKUT 318 (IAC) was supposed to be before the Court of Appeal on April 30, 2015 and further country evidence would have to be served due to the fluid circumstances existing in Libya.
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The appellant’s representative on that first occasion suggested this appeal could form the basis of a further country guidance case but I indicated that more information would have to be submitted to the appropriate senior Judge before any decision could be taken on that submission. Upper Tribunal Judge Allen indicated on July 28, 2015 that there was no need to list this appeal as a country guidance case and the matter has now been listed before me for disposal today.
PRELIMINARY ISSUES
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I was handed a large bundle of documents that contained numerous reports, case law and a skeleton argument. Mr Ficklin confirmed the appellant was not in attendance and he was authorised to deal with this matter in his absence.
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Mr Ficklin indicated that he would be inviting me to depart from the existing country guidance decision of AT and he would be arguing the respondent had failed to identify any safe method of return and there was a tangible risk of indiscriminate violence.
SUBMISSIONS
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Mr Harrison relied on the existing Foreign Office Policy on travel and submitted that whilst there were currently no enforced returns to Libya this was not the same as saying there was a risk of indiscriminate violence to the appellant. As an employer, the respondent had to have regard to employees’ safety bearing in mind they would be foreign nationals in uniform in a foreign country. Although there were no flights to Libya from the United Kingdom this did not mean the appellant could not fly back to Libya as it was possible to fly to another country and then a connecting flight could be taken to a city in Libya. Voluntary returns are taking place on a regular basis and whilst no route had been identified he submitted the evidence submitted on behalf of the appellant was not sufficient to allow the Tribunal to depart from the country guidance decision of AT.
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Mr Ficklin adopted his skeleton argument and submitted:
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I should depart from the country guidance decision of AT because the evidence provided demonstrated that the matters considered in July 2014 were different from the current position.
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An appeal under Article 15(c) has to be considered as at the current date.
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There was clear evidence that there were no international flights into Libyan and the main airports formerly utilised by the respondent were now closed (Tripoli International airport closed in August 2014 and Benghazi airport closed in May 2014). There was evidence of regular air strikes on airports and these airstrikes ultimately led to the last foreign airline, Turkish airlines, ceasing operations in January 2015 when missiles landed around the airport 30 minutes after a flight left. Whilst there were functioning airports none of these were under the control of the internationally recognised government save for the airport at Bayda. However, the fact all airports were vulnerable to air strikes meant there was a real risk of serious harm to civilians.
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There was no method to return the appellant to Libya and bearing in mind the Tribunal in AT were considering the position when Tripoli International airport was open he submitted that I could depart from the earlier findings as long as I was satisfied there was a real risk of indiscriminate violence.
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Accordingly, returning the appellant to Libya by plane was neither feasible nor possible and even if a flight via Tunisia was arranged there was still a real risk that the plane could be struck during an air strike.
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The fact the respondent claimed there were voluntary returns was of no significance.
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The only other method of returning the appellant was overland and it was only possible to travel into Libya from certain areas. If the appellant were returned to Tunisia he would have to travel through areas controlled by the Tuareg militia and the Libya Dawn Militia Alliance- such travel was contrary to foreign office advice and there was evidence contained in the appellants bundle that the population as a whole were being subjected to indiscriminate violence. The UNHCR had not altered its position that were set out in December 2014. Various militia were carrying out indiscriminate violence and there was no way of returning to Libya without travelling through a contested area.
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Libya had 434,000 internally displaced persons and he submitted that based on the numbers that had left Libya this figure represented 10% of the population.
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The threshold of risk was lower than the threshold for Article 3 ECHR and if the appellant cannot return because of the risk of indiscriminate violence then he was entitled to humanitarian protection.
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The Court of Appeal made clear in J1-v-SSHD [2013] EWCA Civ 279 that it was unlawful for the respondent to delay making a decision on return. The respondent had failed to identify any proposed route to return the appellant. The respondent cannot wait until the conflict was over to identify a route. If the respondent wishes to return the appellant she must set out how their return would be possible. To merely say we are unsure how the appellant would be returned is unlawful.
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In the circumstances the appellant’s appeal under Article 15(c) should be granted.
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DISCUSSION AND FINDINGS
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I am solely concerned with an appeal under Article 15(c) of the Qualification Directive (2004/83/EC). All of the appellant’s other appeals have been previously dealt with by the First-tier Tribunal including his applications for asylum, Articles 3 and 8 ECHR.
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Although the respondent has yet to issue the appellant with the appropriate leave under Article 8 ECHR Mr Harrison, on behalf of the respondent, assured me that this would be done when this appeal had been concluded.
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I have been assisted by the appellant’s representatives who submitted an extremely detailed bundle of country evidence and in reaching my decision I have had full regard to that evidence.
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The current situation in Libya is described by both representatives as “fluid’...
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