Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION

[2016] CSOH 142

P166/16

OPINION OF LADY WISE

In the petition of

NAAI (AP)

Petitioner

against

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Pursuer:  Forrest;  Drummond Miller LLP

Defender:  Gill;  Office of the Advocate General

7 October 2016

Background

[1]        The petitioner is a citizen of Libya.  He arrived in the United Kingdom on 13 January 2011 on a student visa, valid until 10 July 2011.  He claimed asylum on 6 June 2011 which was refused by the respondent on 1 July 2011.  He appealed that decision to the First‑tier Immigration Tribunal and his appeal was allowed on 6 September 2011.  The respondent appealed and the Upper Tribunal allowed that appeal leading to dismissal of the petitioner’s claim for asylum on 5 April 2012.  An application for permission to appeal the Upper Tribunal decision was refused.  The petitioner became appeal rights exhausted on 25 July 2012. 

[2]        On 5 February 2013 the petitioner presented further submissions and asked for them to be treated as a fresh claim.  After further correspondence between the petitioner’s agents and the respondent, the respondent made a final decision in a letter dated 17 November 2015, the challenge to which is the subject matter of this petition. 

[3]        The background to the petitioner’s initial claim for asylum is relevant.  The claim he made was that he was at risk if he was returned to Libya because of his attendance at demonstrations in the UK against the Gaddafi regime.  It was accepted that the regime would have evidence of his attendance at those demonstrations as the petitioner’s father had telephoned him to inform him of that.  The immigration judge concluded that the petitioner would be at risk on return to Tripoli.  That having been decided he went on to consider briefly the question of internal relocation and decided that the petitioner could not solely relocate.  The fact that Libya was in the middle of a civil war was a material factor.  By the time the case was heard by the Upper Tribunal the Gaddafi regime had been overturned.  The Upper Tribunal, having decided that the immigration judge had given insufficient reasons for his findings on internal relocation and had erred in law, found that there was no evidence that the petitioner would by that time be at any risk of persecution, given that by April 2012 the Gaddafi regime had been removed from power.  The petitioner had named that regime as his likely persecutors and as they had fallen from power it followed that this claim fell to be rejected. 

[4]        The further submissions made in 2013 on behalf of the petitioner claimed that the risk now presented to him on return was that he was a member of the Wershfana tribe who were pro Gaddafi supporters and also that his father was a member of the revolutionary council at the time of that regime placing him at risk from the current government.  This is effectively the antithesis of the claim made by the petitioner at the time he initially sought asylum.  It was now his association with those connected with the previous regime that is said to create the risk. 

[5]        In support of his attempted fresh claim the petitioner lodged a very detailed report from Dr Alan George, dated 12 September 2012.  That report sets out a considerable amount of background information in relation to Libya.  Dr George had also been provided with a statement from the petitioner about his membership of the Wershfana tribe and his father’s strong support of the late Colonel Gaddafi.  Dr George narrates the petitioner’s testimony as given to him and concludes that he might be at risk in Libya because of his membership of the Wershfana tribe and the continuing intermittent violence there.  He then addresses the possibility of internal relocation or “internal flight” in the last three pages of his report.  He expresses concerns that such internal relocation may be problematic and that there was no particular party or place that would be able to protect him. 

The Applicable Law
[6]        Counsel before me were agreed that the law is well established in relation to both the proper approach of the Secretary of State in making a decision as to whether further submissions constitute a fresh claim under rule 353 of the Immigration Rules and the correct approach of the court in a judicial review of such a decision.  For that purpose I adopt the convenient summary by Lord Bannatyne in ABC v Secretary of State for the Home Department [2013] CSOH 32 which is in the following terms:

“1. The test to be applied by the court in a judicial review of a refusal to treat further representations as constituting a fresh claim is the Wednesbury test (see:  WM (DRC) v The Secretary of State for the Home Department [2006] EWCA Civ 1495 at paragraph 9 and O v The Secretary of State for the Home Department [2010] CSIH 16 at paragraph 22). 

2. The decision remains that of the Secretary of State and the court may not substitute its own decision (see: Dangol v Secretary of State for the Home Department [2011] CSIH 20 at paragraph 7). 

3. The court must ask itself two questions: 

1. Has the Secretary of State asked himself the correct question? – that is, whether there is a realistic chance that an immigration judge, applying the rule of anxious scrutiny, will accept that the petitioner will be exposed to a real risk of persecution on return.

2. In addressing that question has the Secretary of State satisfied the requirement of anxious scrutiny? (see:  WM (DRC) at paragraph 11, O at paragraph 22 and Dangol at paragraph 7). 

Secondly, parties were agreed as to the approach to the issue of anxious scrutiny: 

1. The Secretary of State’s decision will be irrational if it is not taken on the basis of anxious scrutiny (see:  Dangol at paragraph 7). 

2. Anxious scrutiny means that the decision letter must demonstrate that no material factor that could conceivably be regarded as favourable to the petitioner has been left out of account in the review of the evidence (see:  Dangol at paragraph 9). 

3. But anxious scrutiny does not mean the Secretary of State must show undue credulity to the petitioner’s account (see:  Dangol at paragraph 9).”

[7]        The context of the respondent’s decision in this case is that it relied on a country guidance case relating to Libya which was issued in November 2013.  The significance of country guidance cases is accordingly important when considering the petitioner’s challenges in this case.  Mr Gill for the respondent provided a useful summary of the law on country guidance decisions and counsel for the petitioner Mr Forrest did not demur from anything said. 

[8]        The system of country guidance decisions of the Upper Tribunal is based on the unusual notion of “factual precedent”.  The Upper Tribunal makes an authoritative determination of a general question of fact in relation to the conditions obtaining in a particular country, with the intention that it should be binding in subsequent proceedings.  (See Macdonald’s Immigration Law & Practice, Ninth Edition, paragraph 20.119 (RLOA 8).)

[9]        Section 12.2 of the Practice Directions of the Immigration and Asylum Chambers of the First‑tier Tribunal and the Upper Tribunal (RLOA 6) provides that a country guidance decision “must be treated as an authoritative finding on the country guidance issue identified in the determination”. 

[10]      There are strong policy reasons for this unusual system.  It enables appropriate resources, in terms of the representations of the parties to the country guidance appeal, expert and factual evidence and the personnel and time of the tribunal, to be applied to the determination of conditions in, and therefore the risks of return, for persons such as the appellants in the relevant country guidance appeal to the country in question.  It is aimed at arriving at a reliable, in the sense of accurate, determination.  (See R (SG Iraq)) v Secretary of State for the Home Department [2013] 1 WLR 41 paragraphs 45-46.) 

[11]      For that reason, a judge of the First‑tier Tribunal “[is] required to take country guidance determinations into account, and to follow them unless very strong grounds supported by cogent evidence, are adduced justifying [his] not doing so” (R (SG (Iraq)), paragraph 47). 

[12]      Such a judge of the First‑tier Tribunal includes the putative immigration judge envisaged in a rule 353 consideration of whether the further submissions amount to a fresh claim.  For that reason, although the practice directions do not apply to this court, when considering a challenge to a rule 353 decision this court must, logically, treat country guidance determination as authoritative (R (SG (Iraq)),paragraph 49). 

[13]      The particular country guidance decision pertinent to the petitioner’s further submissions is that of AT and Others, (article 15c risk categories) Libya CG [2014] UKUT 00318.  That guidance addresses conditions in Libya “in the aftermath of the armed revolution that brought about the fall of the dictatorial and oppressive regime of Colonel Gaddafi”.  The guidance makes clear that, as a generality, following the fall of that regime there is no longer such a high level of indiscriminate violence in Libya such 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 persons.  However, the guidance identifies four particular categories of person that may be at risk.  These include former high ranking officials within the intelligence services of the regime and others with an association at senior level with the regime;  individuals close “to the centre of power within the former regime”;  persons of Tawurga, Tuareg or Mashashiya ethnicity;  and women who are of African ethnicity, victims of sexual violence or accused or suspected of sexual misdemeanours. 

[14]      The guidance goes on to note that having family members who worked for or had some association with the regime is not sufficient alone to establish a risk of persecution on return and that in general family members of those who were closely associated with the former regime are not at risk of persecution on return.  In particular, the guidance notes “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”. 

[15]      In relation to internal relocation, the country guidance notes that individuals in the four specific risk categories would not, in general, have that option available to them.  However, for a person who has established a real risk of ill treatment for another reason, it is possible to be able to travel safely from one part of Libya to another.  In particular, a male “would be able in practical terms to relocate to another area of Libya”, and even if that person did not have tribal or family connections in the new area “it would not be unduly harsh for such a person to relocate internally”.  While that may not be the case for such a male if the person or group that he fears has links in the new area, in such a case a fact‑specific enquiry would be essential.  In the usual way the guidance is produced as a headnote to the decision in the case with numbered paragraphs. 

The Petitioner’s Submissions
[16]      Mr Forrest emphasised in his submissions that the current petitioner was, perhaps unusually, not one against too many adverse credibility findings had been made.  His account had been accepted by the immigration judge and the successful appeal by the respondent to the Upper Tribunal had been on the basis of an error of law by that judge.  In essence, Dr George’s report indicated that there was no part of Libya where it was safe for the petitioner to return and the respondent was wrong to afford little weight to the evidence in that expert report.  The respondent’s decision was taken against the background of a low threshold test to reasonable prospects of success before another immigration judge.  No certainty of success was required.  The respondent’s reasons for affording little weight to the expert report were erroneous.  First, it was said to be irrelevant that Dr George had not been fully instructed on the individual aspects of the petitioner’s case.  The issue was one of internal relocation.  Dr George was himself one of the experts in the subsequent country guidance case.  The respondent, instead of focusing on the claimant’s position, had sought to highlight that Dr George said something different in the 2012 report than he did subsequently to the Upper Tribunal.  This illustrated that the respondent’s approach was to try to find inconsistencies with the country guidance case.  This was not illustrative of anxious scrutiny but rather of a sceptical approach. 

[17]      Mr Forrest referred to various passages of Dr George’s report.  He accepted that Dr George acknowledged that it would not be unduly harsh generally to relocate internally within Libya.  It was accepted that modern Libya is not so dependent on tribal loyalties.  However, his overall conclusion was that anyone associated with the old regime may be at risk and that internal relocation would be a problem for someone in the claimant’s position.  It was accepted on behalf of the petitioner that the respondent was bound to consider Dr George’s report in light of the country guidance case AT.  However, each case was fact‑specific and the petitioner’s situation was that his initial account of a risk of persecution on return had been accepted by an immigration judge.  That was why it was wrong for the respondent to be sceptical in her approach to Dr George’s report.  It was disputed that anything Dr George said in his report was inconsistent with the evidence he had given to the Upper Tribunal in AT (Libya). 

[18]      While it was acknowledged that the respondent had correctly stated the test being applied to the fresh claim application there was an issue about whether she had applied the substance of the test.  If she was found to have erred in substance in her conclusion that there was no realistic prospect of the petitioner succeeding before an immigration judge the decision fell to be reduced. 

The Respondent’s Submissions

[19]      For the respondent, Mr Gill, submitted that there were two fatal flaws in the petitioner’s position.  First, it had to be accepted that country guidance cases amounted to factual precedent.  Accordingly, the relevant country guidance case here binds the hypothetical future immigration judge in the absence of any cogent evidence or change in circumstances to alter it.  It was wrong, therefore, to say that any discrepancy in the evidence of Dr George would be for a future fact finding judge.  Secondly, one had to consider what the issue was at the time the further submissions were made.  Given that the account given by the petitioner and accepted by the immigration judge was entirely contrary to the position he was now pursuing the respondent required to assess whether he fell into a risk category at all.  It was fundamental error in the petitioner’s approach to focus on internal relocation.  There had to be a risk on return before the question of internal relocation arose.  It was significant to note that no judge or decision maker has found that the petitioner is at risk of return to Libya post the Gaddafi regime.  The respondent had approached the matter properly, namely to consider whether there was a risk of persecution of the petitioner on a return to Libya and then then to address the question of whether, if there was such a risk, he could internally relocate. 

[20]      It was indisputable that the respondent had applied the correct test in this case.  At the penultimate paragraph of the decision letter she concludes that, having analysed all of the submissions, they do not, taken together with the previously considered material, create a realistic prospect of success.  The letter goes on “this means that it is not accepted that should this material be considered by an immigration judge, that this could result in a decision to grant you asylum…”.  All that was for open for discussion in these proceedings was the lawfulness of the respondent’s decision.  Only the material that had been placed before her was relevant.  The petitioner seemed to be seeking an opportunity to allow the possibility of an investigation into thus far unrevealed facts.  That is not a permissible approach – see AA v SSHD [2012] CSOH 76. 

[21]      As the country guidance case for Libya binds an immigration judge and the petitioner does not fall within any of the categories in that guidance indicating that there is a risk to him at the point of return to that country, the issue of internal relocation did not arise. 

[22]      Paragraphs 19, 20 and 21 of the headnote to the country guidance case referred to those who, albeit not in the direct risk categories, had established by evidence specific risks to them.  An assertion that there would be a risk would not be enough.  The petitioner had produced nothing of that sort.  The material provided to the respondent in the form of the report of Dr George had itself recorded that with certain exceptions that do not include the Wershfana tribe there was no systematic targeting of pro Gaddafi tribes and other groups close to the late dictator.  Dr George made specific mention of close relatives of Gaddafi supporters and said that they were not generally being targeted.  Standing the country guidance case there could only ever have been one conclusion on risk of return and that was the respondent’s conclusion that the petitioner was not, in the absence of cogent evidence to the contrary, at risk.  The Secretary of State’s conclusion was accordingly unchallengeable.  In any event, given the margin of reasonable decision making it could never be said to be Wednesbury unreasonable.  It was not for the respondent to speculate that there may be other factors creating a risk for the petitioner which had not been brought to her attention.  There was no reason for the respondent to depart from the country guidance.  A letter had been provided by the petitioner’s agents indicating that matters might have deteriorated in Libya but that fell way short of the type of cogent evidence required.  It was illogical to suggest that the country guidance could somehow be set aside on the basis of a report from Dr George that predated it. 

Discussion
[23]      In my view there is no substance in the petitioner’s argument that the respondent has erred in the approach to the further submissions.  The chronology of events is important.  The petitioner’s initial claim for asylum, based as it was on the contention that he would be persecuted on a return to Libya given his active involvement in demonstrations against the Gaddafi regime, was superseded by events, the Gaddafi regime having fallen prior to the date of the Upper Tribunal decision in April 2012.  Dr George’s report, of September 2012, was prepared fairly soon after the collapse of the Gaddafi regime.  By the time the Upper Tribunal came to issue country guidance for Libya in November 2013 matters had moved on.  In any event, Dr George was only one of three experts from whom the Upper Tribunal heard before setting out the guidance that they did.  In the absence of any contention that the country guidance in AT and Others would be anything other than binding on any future immigration judge there is simply no basis for arguing that Dr George’s report could somehow take precedence over it. 

[24]      In order to succeed in a fresh claim against the background of that country guidance, the petitioner would require to produce cogent evidence that, notwithstanding that he does not fall within any of the risk categories now identified, he would in fact be at risk.  Such evidence would require to be credible and cogent.  No such evidence was produced to the respondent.  Membership of the Wershfana tribe was clearly insufficient to create such a risk, as Dr George himself identified.  Similarly, having a family member who was supportive of or closely associated with at the old regime is also not sufficient of itself to create such a risk. 

[25]      While the detailed and analytical decision letter does record some inconsistencies between Dr George’s report of September 2012 and his evidence that led, amongst that of others, to the country guidance, those inconsistencies are only part of the reason for the respondent attaching little weight to it.  The respondent states: 

“It is also considered that Dr George’s report is now three years old, and therefore consideration has to be given to the latest country information report for Libya dated August 2014 which examines those individuals at risk upon return to Libya due to their perceived, actual support or other involvement in the Gaddafi regime.” 

[26]      The respondent goes on to record the claim on behalf of the petitioner that somehow the country guidance in AT is no longer valid, and then correctly states that AT and Others remains the presiding case law on Libya.  It is quite clear to me that the respondent could have come to no other rational view than she did without disregarding the guidance in AT and Others.  In the absence of any cogent evidence submitted with the application to allow her to do so, the decision is soundly based. 

[27]      On internal relocation, this would be relevant only had there been a basis for concluding that the petitioner was at risk on return.  In any event, the decision letter, at pages 8 and 9 gives detailed consideration to that claim.  Again, on the binding authority of the country guidance it is rejected. 

[28]      There is nothing in the decision letter to suggest that the respondent applied anything other than anxious scrutiny to the decision.  There is an acceptance that Libya remains an unstable country in a general sense.  There is detailed reference to the background circumstances of the petitioner and his initial claim.  In summary, no error in the approach or reasoning of the respondent has been identified on behalf of the petitioner and the claim for review of the decision must fail. 

[29]      Accordingly, I will repel the petitioner’s plea in law, sustain the respondent’s plea in law and refuse the petition.  I will reserve meantime all question of expenses.