NA (Libya) v Secretary of State for the Home Department

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 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.

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 have already referred to evidence that the majority of the population have had some association with the former regime and 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. The risk to a family member will again require a fact-specific assessment.

…

145 It appears to us that there is limited support for a proposition that family members of those associated with the former regime, or those suspected of being such, are now, as a matter of course, at risk on return. The background evidence to that effect is limited and the expert evidence not entirely consistent. We had one example only cited to us. If there was such a risk to family members, we consider that there would be more evidence of it in the extensive background materials to which we were referred.

146 We do not rule out the possibility that an individual will be able to demonstrate such a risk but that would have to be demonstrated by a highly specific individual assessment of that person’s circumstances. Mere assertion of risk by association as a family member would not be sufficient without fact-specific evidence of the risk to that particular family member. The clear evidence is that risk arises because of actual or perceived support for the previous regime. A family member may be able to establish risk on this basis, but the mere fact of being a family member would not in our judgement be sufficient.”

In so far as the conclusions of the Upper Tribunal would have been relevant as Country Guidance to the case being made by the present appellant, they were as follows:

“215 Drawing on all the expert and background evidence, and taking into account the submissions of the parties, we come to the following conclusions:

…

(3)

Having regard to the generally hostile attitude of society to the former regime, the following are, in general, at real risk of persecution or Article 3 ill-treatment on return to Libya: -

(a)

former high ranking officials within the intelligence services of that regime;

(b)

others with an association at senior level with that regime.

(4)

As a general matter, the closer an individual was to the centre of power within the former regime, the more likely that the individual will be able to establish a risk of persecution or Article 3 ill-treatment on return.

(5)

The majority of the population of Libya either worked for, had some association with, or has a member of the family who worked for or had an association with the Qadhafi regime. Such employment or association alone is not sufficient to establish a risk of persecution or Article 3 ill-treatment on return.

(6)

In general, family members of those described in (3) and (4) above are not at risk of persecution or a breach of their protected rights on return. It is possible, however, that an individual will be able to establish such a risk but this will need to be demonstrated by specific evidence relating to the individual’s circumstances. Mere assertion of risk by association as a family member would not be sufficient without fact-specific evidence of the risk to that particular family member.”

The Secretary of State appealed to the Upper Tribunal on the sole ground that the First Tier Tribunal had erred in law in failing to apply AT, given that it had been published and promulgated before the determination of the First Tier Tribunal in the present case was promulgated. In his Decision and Reasons promulgated on 13 October 2014, the Deputy Upper Tribunal Judge accepted that the First Tier Tribunal remained seized of the matter until the decision was formally promulgated and communicated to the parties and the date of promulgation was thus key. In the present case, as at the date of promulgation, the Country Guidance in AT had been published and failure to have regard to or apply a Country Guidance authority constituted an error of law. Accordingly, the First Tier Tribunal had erred in law.

The Deputy Upper Tribunal Judge rejected the submission on behalf of the appellant that there was no inconsistency between the Determination in AT and the Determination of the First Tier Tribunal in the present case, so that any error of law was not material. He considered that it was by no means evident that the appellant would fit into one of the risk categories identified in AT. That was something that would require further assessment, including, if necessary, the production of further evidence by the parties. The decision of the First Tier Tribunal was set aside. In those circumstances, it was agreed between the parties that the matter would have to be remitted to the First Tier Tribunal for reconsideration. This agreement was reflected in a further determination by the Deputy Upper Tribunal Judge, promulgated on 28 November 2014.

The appellant now appeals to this Court with the permission of Laws LJ granted on 10 April 2015. The Upper Tribunal Judge had refused permission on the basis that, because the decision of the Upper Tribunal was not finally dispositive of the matter, any appeal was premature. Laws LJ indicated that he did not consider the appeal was premature. Thereafter, the matter has proceeded on the basis that the appellant has a right to appeal at this stage and the remission to the First Tier Tribunal has been stayed pending the present appeal to the Court of Appeal.

The grounds of appeal can be summarised as follows:

The Secretary of State by her Respondent’s Notice sought to uphold the decision of the Upper Tribunal on the additional ground that the decision of the First Tier Tribunal was based on a misunderstanding or ignorance of an established and relevant fact, namely the existence of the Country Guidance in AT, applying the decision of the Court of Appeal in E & R v SSHD [2004] EWCA Civ 49; [2004] QB 1044.

On behalf of the appellant, Mr Khubber emphasised that the parties and the First Tier Tribunal Judge had been aware that the Country Guidance case of AT had been heard and a decision was imminent and yet the Secretary of State had chosen not to ask for an adjournment or to put before the Tribunal the evidence which must have been available from AT, given that that case had been heard seven months previously in November 2013. In those circumstances and pursuant to the overriding objective in Rule 4 of the Asylum and Immigration Tribunal (Procedure) Rules 2005 (“the Rules”), the judge had decided to proceed with this case on the evidence before her, so that she could not be criticised and had not committed an error of law.

Mr Khubber relied upon the definition of “determination” in Rule 2 of the Rules: “…a decision by the Tribunal in writing to allow or dismiss the appeal” in support of his submission that the determination of the First Tier Tribunal was made when the judge signed her decision on 30 June 2014. What followed afterwards in terms of promulgation was a purely administrative act over which the judge had no control. On that basis he submitted that the Country Guidance in AT post-dated the determination.

He also relied upon the reference in paragraph 12.2 of the Practice Directions: Immigration and Asylum Chambers of the First Tier Tribunal and Upper Tribunal (“the Practice Directions”) to a Country Guidance case being “authoritative in any subsequent appeal”, in support of a submission that where, as here, the Country Guidance case was promulgated after the appeal had been heard, albeit before the determination of the appeal had been promulgated, the appeal was not a “subsequent appeal” of the kind the Practice Directions had in mind. In that context, he relied upon a passage of the judgment of Ouseley J as President of the IAT in the Country Guidance case of NM and others (Lone Women-Ashraf) Somalia CG [2005] UKIAT 00076 explaining the status of Country Guidance cases, in particular at [142], which Mr Khubber submitted demonstrated that the whole dynamic and purpose of Country Guidance cases was to assist the parties in determining how to present appeals which had not yet been heard:

“142 The system enables the parties and the judiciary to know where to look for what the Tribunal sees as the relevant guidance, the parties to know what they have to deal with, and, if they wish to take issue with it, what it is that has to be the target of their evidence or argument. It enables parties to rely on the material which others have had accepted without reproducing or repeating it every time, or if it has been rejected, to know that there is no point in repeating it. Consistency and the justice which that brings can be provided for, even though differing and perhaps reasonable views can be taken of a wide variety of material. It also has the advantage of enabling the understanding of country conditions to be refined as successive decisions may lead to the identification of consequential issues to be grappled with which had hitherto been unrecognised […] There is recognised scope for improvement and parties can focus their evidence and arguments upon the aspect with which they take issue.”

Mr Khubber also submitted that, even if there was an error of law by the First Tier Tribunal in not having regard to the Country Guidance in AT, it was not material, because there was no inconsistency between the determination in AT and the determination in the present case. The Upper Tribunal had declined to decide this issue by concluding that it was by no means evident that the appellant would fit into the risk categories or be part of a non-exhaustive risk group. The First Tier Tribunal had decided that the appellant would be at risk of persecution on the basis of perceived political support for the Gaddafi regime. Similarly, the Upper Tribunal in AT had identified persons associated with the Gaddafi regime as being at risk, with the risk increasing the closer they were to the centre of power. The populations of towns and cities known to have been loyal to the Gaddafi regime were noted to have been displaced and targeted by militia.

Mr Khubber relied on the fact that in relation to one of the issues considered in AT, whether there was serious harm within Article 15(c) of Council Directive 2004/83/EC (“the Qualification Directive”), the Country Guidance in AT had been superseded by the more recent Country Guidance in FA (Libya; Art 15(c)) Libya CG [2016] UKUT 00413 (IAC). Article 15(c) defines serious harm as: “serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in situations of international or internal armed conflict”. In FA, the Upper Tribunal decided that the numerous changes in Libya since November 2013 (when AT was heard) were sufficient to render the guidance on the Article 15(c) risk in that case unreliable. They stated that a new Country Guidance decision on the Article 15(c) risk was required, but that in the meantime, the Tribunal should decide each case on its own evidence rather than on the basis of outdated guidance on the Article 15(c) risk.

Mr Khubber recognised that this was not directly in point since the appellant had not relied upon an Article 15(c) risk in this case, but submitted that FA adds force to his case that fairness requires that the decision of the First Tier Tribunal in the present case on the basis of the evidence before the judge should not be undermined.

Given that, at the end of Mr Khubber’s oral submissions, we indicated that the appeal would be dismissed, we did not need to hear from Mr Lask on behalf of the Secretary of State. His submissions in his Skeleton Argument in opposition to the appeal can be summarised shortly as follows:

In the circumstances, we did not consider it necessary to hear any submissions on the alternative ground raised by the Respondent’s Notice. We propose to say no more about that ground, which was not necessary for our decision, preferring to leave the point for argument as necessary in a case where it is germane to the determination of the appeal.