THE IMMIGRATION ACTS. Before. Upper Tribunal Judge Chalkley. Between KHALID MOHAMAD AL-MOBAREK. and

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1 IAC-FH-NL-V1 Upper Tribunal (Immigration and Asylum Chamber) Appeal Number: AA/03600/2013 THE IMMIGRATION ACTS Heard at Manchester On 28 th October 2014 and 2 nd December 2014 Signed 16 th December, 2014 Determination Promulgated On 30 th December 2014 Before Upper Tribunal Judge Chalkley Between KHALID MOHAMAD AL-MOBAREK and Appellant THE SECRETARY OF STATE FOR THE HOME DEPARTMENT Respondent Representation: For the Appellant: For the Respondent: Ms Faryl of Counsel instructed by Binas, solicitors Ms Johnson, a Home Office Presenting Officer DETERMINATION AND REASONS 1. The appellant was born on 1 st January, 1979 and is a citizen of Liberia. Immigration History 2. The appellant arrived in the United Kingdom on 16 th July, 2004, in possession of his own Libyan passport with leave to enter as a visitor for CROWN COPYRIGHT 2014

2 six months. Following the expiry of his visa on 26 th November, 2004, he remained in the United Kingdom as an overstayer. On 8 th March, 2013, the appellant claimed asylum after having been apprehended working illegally in a restaurant in Manchester. On 11 th February, 2013, the day following his arrest, he was issued with a notice to a person liable to removal. First-tier Appeal Hearing 3. On 5 th April, 2013, the respondent decided to remove the appellant as an illegal entrant and the appellant appealed. His appeal was heard by Firsttier Tribunal Judge Shanahan. 4. The appellant maintained that having been born in Nalut and being of the Amazigh race he would be at risk on return to Libya. He claimed that in September 2003, he was detained by a military patrol while travelling home from the town of Wazzan where he had been with friends. His friends were released, but when his ethnicity was revealed, the appellant was taken to the town of Teeji where he was detained in what he believed to be a military establishment and repeatedly threatened and tortured. He was released after having agreed to act as an informer and provide information about Amazigh people. He was instructed to identify easy girls who could be brought to these men for sex. 5. The appellant asserts that he was alienated from his community, because they believed that he was an informer. He could not return to his home area because he would be killed as a Gaddafi informer and he cannot return to Tripoli because Amazigh people who live there will recognise him and he could be targeted. 6. Having considered the appellant s asylum claim, the judge noted that the appellant had not claimed asylum on arrival in the United Kingdom and did not claim asylum at the time of the overthrow of the Gaddafi regime. The fact that he did not make a claim until he was encountered working illegally and served with overstayer notice led the judge to have serious doubts about his credibility. Further doubts about his credibility were caused by him having obtained a passport in January 2002, whilst he was unemployed and having no plans for such travel. 7. The judge considered that having obtained a passport as early as January 2002 and made a Visit Visa Application using false information, rather than to seek asylum, gave the judge further reasons to believe that he was not a credible witness and was in fact an economic migrant. 8. Having considered the country evidence the judge noted that under the Gaddafi regime, the Amazigh faced discrimination and were persecuted. She also noted that the Amazigh played a large role in the uprising which resulted in the overthrow of the Gaddafi regime and concluded that she could not be satisfied to the lower standard that the appellant had a wellfounded fear of persecution and believed that he was an economic 2

3 migrant. She dismissed his asylum claim and humanitarian protection and Article 2 and 3 human rights claims since they were based on the same factual matrix. Appeal to the Upper Tribunal 9. The appellant, dissatisfied with the decision made application for permission to appeal to the Upper Tribunal. His grounds did not challenge the judge s findings, but suggested that the Tribunal erred in its approach to the question of humanitarian protection and that, given the appellant s specific characteristics, his ethnicity and his long absence from Libya, even if not specifically targeted, he would be at greater risk of indiscriminate violence. He suggested also that being from a minority ethnic group there was significant evidence that the appellant had characteristics that enhanced the risk to him from indiscriminate violence such that it was necessary for the judge to consider that evidence in that light, rather than just in relation to the question of credibility and persecution under the Refugee Convention. The second challenge suggested that the judge erred in her approach to Article 8 whilst the appellant may have been in the United Kingdom without leave and the respondent is not enforcing removals to Libya and in those circumstances there has to be a real question over the public end being sought. The appellant, it was alleged, has demonstrated that he can be a valuable member of society and it was necessary for the judge to consider the weight to be given to the public end so as to ensure the principle of minimal interference would be followed. 10. At the hearing before me Counsel told me that the appellant was likely to suffer a risk of indiscriminate harm because of his ethnicity. She drew my attention to paragraph 17 of the determination where it was accepted that the appellant was a Libyan national and a member of the Amazigh ethnicity. She suggested that that would cause him to be at risk and that risk would be heightened because the appellant had been out of the country for so long. Responding briefly, Ms Johnson submitted that the appellant was not at any risk on return. AT & Others (Article 15C risk categories) Libya CG [2014] UKUT 318 makes it clear that the general population is not at risk. The airport is currently not under siege although it was in August. 11. I enquired as to information about flights into and out of Libya and granted a brief adjournment while Ms Johnson obtained further information. She reported that there were flights to Tripoli today and that the appellant would be flown to Maitaga from where he would be able to travel to Nulat, to his home. 12. Counsel drew my attention to the fact that the Foreign and Commonwealth Office advice was that Tripoli Airport has been closed since July. 3

4 13. In the circumstances I adjourned until 2 nd December to enable the Presenting Officer to obtain up-to-date information as to the availability of flights and their destination in Libya. 14. On 2 nd December, when resuming the hearing, Ms Johnson handed to me a response to country of information request. This indicated that the Foreign and Commonwealth Office advised against all travel to Libya due to the ongoing fighting and greater instability throughout the country. British nationals in Libya were strongly urged to leave immediately by commercial means. 15. The report said:- Limited commercial departure options are still available. Flights are leaving Misrata and Maitega. Al Abraq Airport (currently serving Benghazi) and Tobruk but availability may be limited. Airports have been subject to recent bomb attacks and remain vulnerable. Flights to Egypt and Tunisia from Misrata and Maitega Airports have been suspended. Tripoli International Airport has been closed since 13 July The schedule of some flights are published on the Afriqiyah facebook page. However, as flight schedules may change without notice, you should contact your airline or travel company for the latest information before travelling. BBC News reported on 25 November 2014 that: A Libyan Air Force jet has carried out two attacks on Mitiga air base in Tripoli, the Libyan capital s last functioning airport. The strikes hit an area near the runway without damaging it, but causing some damage to nearby civilian homes. The coalition of militias that controls Tripoli called it a provocative move by foreign-backed forces. Local media reports said flights were initially redirected to the city of Misrata but later resumed at Mitiga. Airlines have been using Mitiga, a military air base, since July when fighting caused severe damage to Tripoli s main airport. The website of Misrata International Airport accessed 1 December provided live updates for arrivals and departures, including to and from Istanbul and Alexandria. The security consulting service, Mozayix, reported on 22 September 2014 that:- A new passenger lounge has been opened at Mitiga Airport, Tripoli s only functioning air link since Tripoli International was destroyed last month Zawara Airport in western Libya to operate international flights within a month, head of the airport has recently said. Air Malta announced today that it had added a third weekly flight from Malta to Djerba. Both Tobruk and Labraq Airports were reported open and operational. Tripoli s Mitiga Airport is open and operational with Libyan Airlines or Afriqiyah providing connections from Tunis, Istanbul and Alexandria. Accessed via the website FlightStats on 1 December 2014, Labraq (La Braq) Airport appeared to be operational with departures and arrivals scheduled to and from Alexandria and Mitiga. Flights arriving and departing to/from Amman and Tunis from Benina International Airport, serving Benghazi, were also listed. No flights were listed for Tobruk Airport. 4

5 16. Ms Johnson indicated that the appellant would be flown to Mitiga Airport either via Tunis, Istanbul or Alexandria. AT makes it clear that he would not be at heightened risk as a failed asylum seeker and that it was still possible to travel overland within Libya without giving rise to a risk of harm that requires recognition in terms of international protection. AT made it clear that the evidence did not reveal such a level of arbitrary or irrational conduct on the part of militia at checkpoints such as to put the ordinary traveller at real risk. 17. I reminded Counsel that she had addressed me briefly on 28 th October, and asked her if she would like to address me further. She declined to make further submissions indicating that return was simply not possible. She told me that she had nothing further to add. I reserved my determination. 18. No challenge has been made to the judge s findings of fact that the appellant does not have a well-founded fear of persecution if returned to Libya and is an economic migrant. The issue now is whether returning him will cause him difficulties because of his Amazigh ethnicity and long absence from the country. Counsel did not address me in relation to the second challenge to the appellant s Article 8 claim. 19. AT, promulgated in July 2014 makes it clear that there is not such a high level of indiscriminate violence in Libya within the meaning of Article 15(c) of Council Directive 2004/83/EC, so as to mean that substantial grounds exist for believing that an individual would, solely by being present there, face a real risk which threatens his or her life or person. But there is no suggestion that the appellant was ever a former high-ranking official within the intelligence service of the Gaddafi regime or indeed that he was ever associated with the Gaddafi regime. Amazighs are unlike Tawurga who are perceived to be Libyans who have been mercenaries on the side of the Gaddafi regime and to have committed human rights abuses during the revolution. They are also unlike Tuareg who are perceived to have been supporters of the former regime. 20. AT also makes it clear that failed asylum seekers are not, for that reason alone, at risk on return and that notwithstanding the prevalence of checkpoints manned by militias, it is possible to travel overland to other destinations without real risk of persecution, serious harm or Article 3 illtreatment. 21. There are said to be flights to Mitiga Airport and there is no evidence before me to suggest that on his arrival he will not be able to pass through the airport militia checkpoints and return to his home area. 22. Although I was not addressed by Counsel in respect of the appellant s Article 8 claim I have considered it and considered what the judge said in relation to it. She accepted that the appellant had lived in the United Kingdom since July 2004 and that he had established friends and worked during that time. She was satisfied that he had established some form of 5

6 private life. She concluded however that the decision to remove him was proportionate to the legitimate public aim of protecting the economic wellbeing of the country and the rights and freedoms of others. I believe that the judge was entitled to reach such a conclusion on the evidence before her. 23. I am satisfied that the making of the decision by First-tier Tribunal Judge Shanahan did not involve the making of an error on a point of law. Her determination shall stand. The appellant s appeal is dismissed. Richard Chalkley Upper Tribunal Judge Chalkley 6