England and Wales Court of Appeal (Civil Division) Decisions

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Cite as: [2013] EWCA Civ 213

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		Neutral Citation Number: [2013] EWCA Civ 213
		Case No: C5/2012/2029

IN THE COURT OF APPEAL(CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
[APPEAL No: AA/11643/2011]

Royal Courts of Justice
Strand, London, WC2A 2LL

12th February 2013

B e f o r e :

LORD JUSTICE MOORE-BICK
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	OH (LIBYA)	Appellant
	- and -
	SECRETARY OF STATE FOR THE HOME DEPARTMENT	Respondent

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Ms Valerie Easty (instructed by Brighton Housing Trust) appeared on behalf of the Appellant.
The Respondent did not appear and was not represented.
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HTML VERSION OF JUDGMENT
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Lord Justice Moore-Bick:

This is a renewed application for permission to appeal following refusal on paper by Sir Richard Buxton. The applicant is a national of Libya who came to this country in January 2011 and made a claim for asylum in August the same year. He claimed to be at risk of being killed or subject to ill treatment if he were returned to Libya because members of his family, in particular his brother, had been supporters of the Gaddafi regime. It appears that his brother had served in an elite unit of Gaddafi's army and had been killed while on active service. Other members of the family are said to have been general supporters of the Gaddafi regime although the applicant himself had not been. He comes from Tripoli but said that he could not move to another part of Libya because he would soon be recognised as a result of his tribal name and his accent and would be likely to become the victim of a revenge attack.

The applicant's claim was rejected by the Secretary of State and he appealed to the First-tier Tribunal, where the case was heard by Immigration Judge Jones. He dismissed the claim but the applicant obtained permission to appeal to the Upper Tribunal, which decided that there should be a complete rehearing of his case. The Tribunal had before it the evidence that had been placed before the First-tier Tribunal and also heard evidence from the applicant himself. It also heard evidence from an expert witness who could describe conditions in Libya, Dr George, whose evidence, in summary, was to the effect that there was nowhere in Libya where the applicant could live safely.

The Upper Tribunal considered the evidence with some care. It rejected the submission that the applicant would be easily identifiable as a supporter of the former regime and was not satisfied that he was at significant risk because of his brother's relatively low-level position in the army. (He is described as being a second lieutenant, which I assume means that he was, although an officer, at a low level.) The Tribunal did not accept Dr George's evidence that all low-level supporters of the Gaddafi regime were at real risk of active persecution. It was particularly of that view in the case of the applicant himself, who had not been a committed supporter of the regime. There was evidence, to which the Tribunal referred, that it was possible for people to move to another area where they could live safely, and for those reasons it dismissed the claim.

The applicant now seeks permission to appeal to this court and for that purpose it is accepted that he must satisfy the more stringent requirement of showing that an appeal would raise an important point of principle or practice or that there is some other compelling reason for this court to hear a further appeal. The essential complaint is that the Upper Tribunal failed to make certain findings about the safety of the applicant in his home area and that that failure had somehow had infected its decision on the question of relocation. More importantly, it is said that the Tribunal did not get properly to grips with the evidence in relation to relocation and made findings that cannot be supported.

In my view the Tribunal did, however, identify the correct principle applicable to internal relocation and, although it dealt with the issue quite shortly, it applied the law correctly to the facts as it found them. The question of the identification of the applicant on his return to Libya as being a Gaddafi supporter is one of fact. The Tribunal found both that there was no reason for the applicant to be identified as a supporter of the former regime and that even if he were that would not automatically make him an active target with a real risk of attack. Despite the criticisms that have been made of the way in which the Tribunal dealt with these matters, I am not satisfied that it is reasonably arguable that its decision is so defective as to give rise to an error of law. It could certainly have dealt more fully with some aspects of Dr George's evidence but it clearly did consider it and in my view sufficiently expressed its reasons for not accepting it. Quite apart from all that, however, none of the points which the applicant seeks to raise involve important undecided points of principle or practice, and Ms Easty, who has appeared on his behalf, candidly accepts that.

If permission to appeal is to be given, therefore, it can only be on the grounds that there is some other compelling reason for this court to hear a further appeal. The two points on which the applicant relies in that respect are that this is an asylum appeal and therefore the potential consequences to him of an adverse decision are severe, and that the hearing before the Upper Tribunal was a fresh hearing. It is therefore said that his case has been considered properly only on one occasion. Of course, the applicant has had his case considered on two occasions because he received a full hearing before the First-tier Tribunal, albeit one that the Upper Tribunal found had resulted in a flawed decision. The case was fully considered by the Upper Tribunal in the light of both the evidence that was before the First-tier Tribunal and of further evidence that was placed before it; and no doubt, having had to consider the errors made by the First-tier Tribunal, the Upper Tribunal can be expected to have taken those into account and to have ensured that its own hearing is satisfactory. The fact that the case involves a claim for asylum and that the Upper Tribunal has conducted a fresh hearing must arise in a number of different cases. In my view those two factors cannot automatically lead to the conclusion that permission to appeal should be given. In particular, some assessment of the merits of the case is still called for.

The real dispute in this case revolves around the Upper Tribunal's findings of fact, and I do not think that there is any real prospect that this court would upset its decision. Moreover, in my view this is not one of those cases where there are compelling reasons for this court to hear a further appeal in the absence of any important point of principle or practice, and for those reasons permission to appeal will be refused.

Order: Application refused