(Immigration and Asylum Chamber) Appeal Number: AA/01124/2011
THE IMMIGRATION ACTS
Heard at Bradford
On 21st May 2013
On 10th July 2013
UPPER TRIBUNAL JUDGE REEDS
tarek sase hoosin
For the Appellant: Miss Pickering, Counsel instructed on behalf of Howells Solicitors LLP
For the Respondent: Mr Wardle, Home Office Presenting Officer
DETERMINATION AND REASONS
1. The Appellant is a national of Libya who was born on 25th December 1975, who arrived in the United Kingdom on 17th December 2010 and claimed asylum on 20th December 2010.
The background to the appeal:
2. The basis of the Appellant’s claim was that he had worked for the Interior Security Services from 2005 in Libya. In 2007 he claimed to have been beaten and imprisoned for 25 days because he questioned a decision to arrest a number of his neighbours. He then applied to be transferred but that request was refused in 2009. He tendered his resignation in August 2010 but this was rejected. He then decided that the only way to leave his employment would be to leave Libya which he did in November 2010 travelling through Egypt and Turkey on his way to the United Kingdom.
3. The Appellant claimed asylum on 20th December 2010, two months before the February 2011 uprising against the Gaddafi regime in Libya.
4. The Respondent refused the Appellant’s asylum claim on 12th January 2011. The Appellant exercised his right to appeal and the case came before Immigration Judge Hindson sitting at Bradford on 18th March 2011. In a determination promulgated on 24th March 2011 he dismissed his appeal. The Immigration Judge accepted the Appellant’s account of his activities in Libya but did not accept that those activities placed the Appellant at risk on return.
5. The Appellant sought permission to appeal to the Upper Tribunal and permission was granted by Upper Tribunal Judge Chalkley on 12th April 2011. The appeal came before the Upper Tribunal on 1st May 2012. At the time of the hearing, the Gaddafi regime had been overthrown and the basis of the Appellant’s case was that he feared risk on return from rebels as a former member or perceived member of the regime. It was further claimed on behalf of the Appellant that adverse interest had been shown in him by rebels in Benghazi.
6. In a determination promulgated on 21st November 2011, the Upper Tribunal (Deputy Upper Tribunal Judge Kelly) did not find that the Appellant had demonstrated that he was of adverse interest to rebels in his home area and in any event considered that the Appellant could internally relocate to Tripoli to avoid any localised threat in the Benghazi area. Thus the Upper Tribunal dismissed the appeal.
7. The Appellant sought leave to appeal from the Upper Tribunal on four specific grounds. The first ground was that the judge had failed to engage with or misinterpreted the background evidence in relation to risk. Under this, it was claimed that the finding that there was no evidence that all former employees in the Gaddafi regime had been subject to persecution was incorrect and that there was significant information showing risk to those simply perceived as being pro-Gaddafi. The second ground was that the judge did not give adequate reasons for rejecting the Appellant’s credibility, the third ground was that the judge had not properly engaged with the expert evidence in respect of the issue of internal relocation and the fourth ground, that the judge did not properly engage with the risk of harm to the Appellant and the issue of Article 15(c).
8. The application for permission to appeal was considered by the Upper Tribunal on 6th September 2012. Upper Tribunal Judge Pitt considered that grounds 2 and 4 were without merit but granted permission to appeal in respect of grounds 1 and 3. The following reasons were given by the Upper Tribunal for granting permission to appeal:-
“Ground 1 challenges the DUTJ’s finding that the Appellant would not be at risk on the basis of his accepted profile as a prison guard in the Interior Security Services (ISS), working at the Benghazi head office where his responsibilities included making arrests. The DUTJ stated at :
‘My attention has not been drawn, however to any report that suggest that all individuals who were at that time employed by the regime - of whom there must have been a great many - have been routinely persecuted or otherwise ill-treated on this account alone.’”
“… Whilst there are many reports to support the contention that certain tribes are perceived as having supported the regime, neither Professor Joffe in his report nor Miss Pickering at the hearing referred me to a single report of individuals being targeted solely on account of their former low level employment by the regime.”
However the DUTJ did have such evidence before him at page 13-15, 22, 24, 27, 41, 43, 45, 47, 62, 134, 135 and 158 of the Appellant’s first bundle and pages 7 and 20 of the second bundle. The country evidence on this point was referred to in submissions recorded at (paragraph 17) and in the skeleton argument before the DUTJ. The references to the country evidence to attacks on those who worked for the ISS and other organs of the former regime did not distinguish between high or low level involvement or suggest that only those of a high profile were at risk of mistreatment. It is therefore arguable that the DUTJ was in error in finding this evidence to be of no relevance to this Appellant.
Ground 3 is arguable for the same reasons. The assessment of risk to the Appellant in the determination under challenge was made for the first time by the DUTJ because of the regime change since the case was considered by the First-tier Tribunal. It is clearly arguable that on that issue raised by ground 1, this is not a second appeal.”
9. The case therefore came before the Court of Appeal and in an order made by consent on 14th February 2013, the appeal was allowed and the determination of Deputy Upper Tribunal Judge Kelly promulgated on 11th June 2012 was quashed. An order was made remitting the appeal by consent to the Upper Tribunal for a rehearing in accordance with the statement of reasons attached to the order. At paragraph 6 of the statement of reasons the following is stated:-
“The Respondent has considered the Appellant’s Notice of Appeal and the grant of permission by the Upper Tribunal. Having done so she considers that the Upper Tribunal materially erred in law by both failing to engage with the background evidence in relation to risk (ground 1) and in failing properly to engage with the expert evidence in relation to internal relocation (ground 3). The parties are therefore in agreement that this matter should be remitted back to the Upper Tribunal for further consideration of those points.”
The hearing before the Upper Tribunal:
9. Thus the appeal came before the Upper Tribunal. At that hearing Counsel Miss Pickering appeared on behalf of the Appellant, who had appeared in the court below and Mr Wardle on behalf of the Secretary of State. This case had not been the subject of a Case Management Review hearing and at the outset of the appeal there were a number of preliminary matters that required consideration. The first matter related to the ambit of the remittal. In the bundle of documentation that had been produced on behalf of the Appellant there were documents relating to correspondence with the Home Office concerning policy considerations. This had not been raised at any stage before the Upper Tribunal nor before the Court of Appeal. Furthermore there was no Rule 15 notice served in respect of this evidence. The second preliminary matter related to a further document in the form of a letter exhibited in the bundle at pages 278 to 80. Again there had been no application for such evidence to be adduced. In respect of the policy argument, Miss Pickering conceded that this had not been a matter raised at any earlier stage and that the Respondent had not therefore dealt with this issue by providing any documentation concerning the position of the Secretary of State.
10. As to the second issue, she also conceded there had been no Rule 15 notice served but submitted that the oral evidence of the Appellant, in conjunction with the document, was relevant to the first ground and the issue the Court of Appeal had identified required consideration by the Tribunal. Miss Pickering took further instructions and after doing so, she stated that she was instructed not to pursue any argument concerning policy matters but sought to apply under Rule 15 to adduce the letter and witness statement on behalf of the Appellant. Mr Wardle on behalf of the Secretary of State raised no objection to this course. In those circumstances, the Tribunal admitted into evidence the letter exhibited at page 278 to 290 in the bundle, Counsel having drafted a Rule 15 notice. In addition, Miss Pickering submitted a skeleton argument.
11. The Upper Tribunal was provided with a consolidated bundle on behalf of the Appellant which included the evidence that had been submitted before the Upper Tribunal for the hearing on 4th January 2012 and also that evidence that had been submitted before the Upper Tribunal on 1st May 2012. The bundle included updated country materials and also a second supplementary report of Professor Joffe dated 10th May 2013. On behalf of the Appellant, there was a further witness statement dated 1st May 2013 and the letter from the Supreme Security Committee along with its translation at pages 278 to 290. Also exhibited in the Appellant’s bundle was a copy of the UKBA Libya’s Operational Guidance Note dated May 2013.
12. No further bundle was submitted on behalf of the Secretary of State although Mr Wardle relied upon the documentary evidence produced in the Appellant’s bundle and also that relating to the past papers submitted on behalf of the Respondent including the determinations of Judge Hindson and Deputy Upper Tribunal Judge Kelly. In this respect, he stated that he placed no reliance on the refusal letter initially filed on behalf of the Appellant as it was recognised that the events in that letter had been overtaken by the passage of time and the change of regime in Libya.
13. The Tribunal heard evidence from the Appellant. He confirmed that his witness statement exhibited at page 267-268 of the bundle dated 1st May 2013 was a true and accurate statement of his evidence when he made it. That statement was adopted as his evidence-in-chief. No further questions were asked of the Appellant.
14. In cross-examination, the Appellant was asked about the letter in the bundle which had been recently produced. When asked when he first had learnt of the letter from the SSC, he said that he had first heard of it last year when a friend told him about it. When asked specifically when he had learnt of the letter he said that would be in July 2012 and that he had learned of it from a friend of his brother in Libya. When asked how his friend had found out about the letter the Appellant stated that his brother had told him. He could not remember when his brother had told him but he conveyed the message to him. When asked if his brother had ever mentioned the letter to the Appellant directly, the Appellant claimed that his brother had never mentioned it and had never discussed any such matters with him. When asked why not, the Appellant stated that he was worried about putting his life at risk and that he had told his brother not to discuss such matters with him. When asked why the Appellant had told his brother not to discuss matters with him, the Appellant claimed that it was because he was worried about his brother. In his evidence he confirmed that the letter had been delivered to his home and he was asked in those circumstances why he did not wish to hear about it? The Appellant stated that he did not want his brother to be involved in any trouble. When asked how he got the letter he said that his brother’s friend had sent it to him. In those circumstances it was put to him that his brother must have given it to the friend and therefore he was clearly involved and that it made no difference to talking to him about it. He was asked if that was the only letter that he had received and he confirmed that it was and he could not state if any past colleagues of his had received any similar letters.
15. The Appellant confirmed again that he first learnt of the letter in July 2012 and that was the only letter that he had known about. He was therefore asked to explain how that was possible when the letter was dated 19th September 2012. The Appellant stated that the letter was issued on 19th September but the militia had told his brother that they would send him a letter in due course and on that day his brother had argued with him and got into a fight. He then claimed that they had come to the house on a frequent basis.
16. There was no re-examination.
17. At the conclusion of the evidence, I heard submissions from each of the advocates. Mr Wardle had not produced a skeleton argument but made oral submissions. He confirmed that in the light of the Operational Guidance Note that in respect of the issue of internal relocation, if the Appellant was at risk on return as being perceived as a supporter of the former regime, the Secretary of State accepted that internal relocation was not possible. Thus his submissions were directed to the first and only ground of appeal relating to risk of return in the light of the Appellant’s profile taking into account the findings of fact made by the two earlier judges.
18. Mr Wardle submitted that when looking at the Appellant’s profile and in particular the determination of Immigration Judge Hindson, the Appellant was a gate guard who had been imprisoned and later attempted to resign and had left Libya in 2010. Judge Kelly had found that since he had left Libya there had been no intervening interest in him as he had not accepted that the Appellant’s family had been visited by the militia or that they had been questioned about the Appellant.
19. He invited the court to consider the evidence given at the Tribunal at the hearing concerning recent interest in him supported by the letter now produced by the SSC. Mr Wardle submitted that the Appellant’s evidence was that he had been made aware of the letter in July 2012 but looking at the content of the letter it is clear that it was not in existence until September 2012. The statement that he had given was not consistent with the account given in oral evidence and there was no reference to members of the SSC coming to the house on a number of occasions or stating that they would issue a letter and then subsequently provide one. The explanation given by the Appellant as to why he did not tell his brother was implausible and the timing of the document was questionable given that it appeared so soon after the appeal was dismissed by Deputy Upper Tribunal Judge Kelly. There had been a clear opportunity on behalf of the Appellant for that to be authenticated as it was available for Professor Joffe. There was reference to it at paragraph 51 of the expert report but there is no mention in the expert evidence as to whether similar letters had been issued or whether the expert had ever seen a letter issued in that way. Given the previous findings made by Judge Kelly little weight should be attached to such a document, particularly since the Appellant has had the opportunity to have it authenticated but had not done so.
20. Thus Mr Wardle submitted that the risk of return as related to this Appellant began with findings of Judge Hindson as to his role and those of Judge Kelly, namely, that there was no evidence of any adverse interest in him since he had left Libya.
21. With reference to the expert evidence, Professor Joffe at paragraph 49 (page 294) referred to documentation being in existence concerning his past role however, it was reasonable to assume that if there was a record of his former employment there would also be a record in existence as to the Appellant’s dissent against Colonel Gaddafi and the punishment that he incurred. When assessing risk, it was conceded that the country materials made reference to 8,000 individuals being held in various forms of detention (see page 297 of the country materials). However, that figure was a small figure when put in context of the numbers who may have been involved in the former regime. He referred the Tribunal to paragraph 27 of Professor Joffe’s report noting that there was a large number of a population who were involved in some way or other in the Gaddafi regime. In particular, the figures include former security members, former government officials and suspected Gaddafi loyalists and other groups who are part of the 8,000 who are said to be in detention currently. In any event the country information as it presently stands is too vague to ascertain whether this Appellant, given his profile, is at real risk of persecutory harm from the militia and the current regime in Libya, particularly given the finding made by Judge Kelly that he had not been of any adverse interest since he had left Libya. In those circumstances, that it had not been demonstrated that the Appellant would be at any risk of harm by reason of his past employment under the Gaddafi regime.
22. Miss Pickering relied upon her skeleton argument. She accepted the findings of fact made by Judge Hindson and Judge Kelly were the starting point for assessment of risk. She reminded the Tribunal that Judge Hindson had accepted the factual basis of the Appellant’s account which was that he had joined the Interior Security Services in 2005 and had been posted to their headquarter in Benghazi in 2006. This was a role that he had remained in until 2010 when he left Libya. He was known in the neighbourhood for his role and had been involved in the arrest of individuals within the Libyan community. His role was of relevance when looking at the issue of whether he would be perceived as a supporter of the past regime.
23. In making an assessment of risk, she referred to the expert report of Professor Joffe and that weight should be attached to that report. The contents of the report demonstrate that it was not a matter of whether the Appellant had a minor role in the security forces, the country materials led to the position that there was no distinction made between those of a low level or those at a high level of involvement (see paragraph 49 of Professor Joffe’s report). Whilst it had been submitted on behalf of the Respondent that the Appellant had been previously outspoken against the regime and had been imprisoned by them, that would not mitigate the risk to him and that it was the mere fact of his employment that would place him at risk.
24. As to the numbers in detention, she submitted that caution should be exercised in relation to those figures, but in any event the country materials made reference to the fact that most detainees were former security force members (297 Human Rights Watch Report) and that the country materials at pages 303, 304, 309 demonstrated that there was a wider net of those who had been subject to detention and ill-treatment including targeting former members of the security services, targeting killings of former members (page 304) even to the extent of those who were who rightly or wrongly considered or perceived to be supporters of the regime (page 309 of the country materials). At page 357, she referred the Tribunal to evidence that armed groups continued to detain thousands accused of links to the former regime and at page 356 there was credible evidence of groups hunting down former security officers in Tripoli.
25. She drew the Tribunal’s attention to the Operational Guidance Note and while she accepted it was not binding, the Operational Guidance Note should be given some weight as the sourced material used for its contents came from reputable sourced material including the Amnesty International Report and the US State Department Report. The conclusion at paragraph 3.10.18 was that given the generalised attitude of resentment towards the perceived Gaddafi supporters and fighters and the forces which the Gaddafi regime previously sought to subdue the opposition, that the Respondent accepted that there was a reasonable likelihood that applicants in that category would be able to show a need for international protection. When applied to this Appellant, his profile, irrespective of any recent interest in him, would make him someone who would fall within that category and be likely to be perceived as a Gaddafi supporter.
26. She submitted that he would be known in his neighbourhood as someone who had played a role in the Interior Security Services and thus if returned would be someone perceived as supporting the former regime and that would likely to be known to others.
27. The account of him receiving a letter from the SSC was in line with the background evidence which shows that even the militias operate with impunity and commit human rights abuses. Whilst there is an inconsistency as to the date, that in itself does not necessarily undermine the document itself or the evidence given by the Appellant.
28. Professor Joffe at paragraphs 49 to 50 stated that the archive for the former regime had survived the uprising civil war in Libya and that the archive had been utilised to track down or trace those involved with the Gaddafi Government. In this context it was speculative on behalf of the Secretary of State to suggest that the records would also include those who had been imprisoned by the regime. There was no evidence concerning this but in any event, the thrust of the materials before the court demonstrated that those who were part of the regime like this Appellant were likely to be those who are perceived upon return as to be part of the former regime and therefore be at risk of harm. Thus she submitted the appeal should be allowed.
29. It is common ground between the advocates that the starting point when making an assessment of risk are the findings of fact made by First-tier Tribunal (Judge Hindson) and Judge Kelly, sitting as a Deputy Judge of the Upper Tribunal. Judge Hindson had the opportunity of hearing the Appellant give evidence before the Tribunal and after considering the issues raised in the refusal letter reached the conclusion that the Appellant had given an account which was “essentially true” (I refer to paragraph 42).
30. Thus the basis of the Appellant’s account is as follows. The Appellant is a national of Libya born on 25th December 1975. He attended a local school in Benghazi and finished high school in 1991. After that he was employed as a market trader. Between the years 1993 and 1994 he undertook national service and after completing that, he was told that he could obtain regular employment as interior security personnel. He joined the Interior Security Services in 2005 stationed at different sites, providing security services and in 2006 was posted to the Interior Security Service’s head office in Benghazi. At the head office whilst regarded as a regular soldier he was able to wear civilian clothes. Whilst working there he became concerned about the prisoners or detainees and how they were being treated for example, when they were arrested and brought to custody and able to suffer abuse from officers. The Appellant expressed concern about the treatment.
31. In 2007 he was told that some arrests were to take place in his home area and he was asked if he wished to take part in the operation. He said it would be inappropriate to do so because people would know him and he would not be comfortable arresting those who he knew. Subsequently after the operation had taken place, he saw people he knew as his neighbours in the high security block reserved for those who were charged with national security issues. He made enquiries as to why they had been arrested. He was told in effect to mind his own business.
32. After about three days, his actions were reported to a superior and he was called in for questioning in May or June 2007. In the course of that interview, he said that he knew these people who had been detained and did not believe they were involved in any kind of terrorist of anti-government activities. As a result he was imprisoned for 25 days during which time he was interrogated and beaten. He was released after 25 days and was compelled to sign a declaration to the effect that he would not disclose to anyone what had gone on in the service. He returned to work and believed he was being monitored. He applied for transfer to another department but that was denied in 2009 and also attempted to tender his resignation in August 2010. In October 2010 he discussed the situation with his brother who advised him that he should leave Libya and he left on 15th November 2010.
33. The Appellant sought asylum on 20th December 2010, two months before the February 2011 uprisings against the Gaddafi regime.
34. It was the Appellant’s case that he had maintained telephone contact with his family in Libya and in particular his brother. Until December 2011, the family has not suggested that anyone had shown a specific interest in him. He had claimed that he had been informed by his brother that people had been making hostile enquiries as to his whereabouts at the uprising in February 2011. Those enquiries also included them going the family home in Benghazi. The findings made by Judge Kelly in respect of these issues are set out at paragraphs 20 to 25 of his determination. The judge found that he had left his employment three months prior to the uprising and that it was more than a year before he reported adverse interest in him on account of that employment. Until less than a month before his appeal, he had not given a hint that anybody had shown any adverse interest in him, whether on account of his former employment or otherwise. The judge found that the Appellant had not provided a credible explanation for his brother’s failure to inform him of the events, nor was there any letter confirming any support for those events and the Appellant’s brother and the medical evidence produced did not support the factual basis. Thus the judge did not accept that the Appellant had shown that he had been of any adverse interest by anyone in Libya arising from the course of his employment.
35. I now turn to the oral evidence that I have heard in this appeal. I have had the opportunity of hearing the Appellant give oral evidence and for that to be the subject of cross-examination. The account given by the Appellant in his witness statement is that in 2012 some people came to the family home asking for him. They gave his brother a letter written by the Supreme Security Committee stating that if he was found he should be brought to the committee. When the people came to the house they said “We need Tarek”. His brother told them that he was not in Libya and since that date people from the group had come back several times asking for him.
36. The Appellant has produced a letter purportedly issued by the SSC (exhibited at pages 278 to 280). The document is dated 19th September 2012 and is from the “Free Libya, the Ministry of the Interior, Supreme Security Committee, Department of Investigations.” The body of the letter states as follows:-
“We hereby inform you that the person called Tarek Sase Hoosin is one of the people wanted by the Supreme Security Committee for the reason that he was one of those collaborating with the previous regime in the oppression of the Libyan people.
We request any organisation which receives information about this person to inform us of this because the matter is very important in the handing over of this person.
We thank you very much for your cooperation with us.”
Stamp and signature.
37. The Supreme Security Council is referred to in the country materials before me as a “quasi official body of former anti-Gaddafi fighters that is cooperating with the Interior Ministry for ensuring law and order. The police force is weak and dependent largely on the SSC. The SSC lack vetting and scant training contributes to abuse by its members.”
38. When considering such documentation, I remind myself of the guidance given in the decision of the Tribunal in Tanveer Ahmed  UKIAT 00439 in which the Tribunal acknowledged the argument that “documents and information contained in them may be either genuine or false; documents may be genuine but that information itself may be false; documents may not be genuine but the information may nonetheless be true.” The Tribunal in that case went on to state:-
“It is trite in immigration and asylum law that we must not judge what is or is not likely to happen in other countries by reference to our perception of what is normal within in the United Kingdom. The principle applies as much to documents as to any other form of evidence. We know from experience and country information that there are countries where it is easy and often relatively inexpensive to obtain ‘forged’ documents. Some of them are false in that they are not made by whoever purports to be the author and the information they contain is wholly or partially untrue. Some are ‘genuine’ to the extent that they emanate from a proper source, in the proper form, on the proper paper, with the proper seals, but the information they contain is wholly or partially untrue. … The permutations of truth, untruth, validity and ‘genuineness’ are enormous. At its simplest we need to differentiate between form and content; that is whether a document is properly issued by the purported author and whether the contents are true. They are separate questions. It is a dangerous oversimplification merely to ask whether a document is ‘forged’ or even ‘not genuine’.”
The only question is whether the document is one upon which reliance should properly be placed. Such documentation should be not looked at in isolation but should be assessed along with other pieces of evidence and therefore “in the round”. I confirm that I have had in mind those words of the Tribunal when making an assessment of the variety of documents that have been produced in this case.
I have considered this part of the Appellant’s account with care and the documents produced in support of it in the light of Tanveer Ahmed and in the light of the background country materials.
39. In making assessment of that letter I take into account the oral evidence I have heard from the Appellant. He was asked questions concerning his knowledge of the letter and when he first became aware of it. It is clear from his evidence that he became aware of the letter in July 2012. The document on the face of it gives a date of its issue as 19th September 2012 and thus was not in existence at the time the Appellant claimed to have been first aware of the letter. In cross-examination he confirmed that he had received no similar letter and that was the only letter that had been received in Libya. When the discrepancy was put to him he stated that it had been issued on 19th September but the militia had told his brother that they would send him a letter and on that occasion his brother had a fight with the authorities.
40. I do not accept the explanation as a credible one for the clear discrepancy between the date of the letter and the time in which the Appellant said that he became aware of the letter itself. The witness statement provided by the Appellant gave details of how the letter came into existence and it makes no reference whatsoever to the militia coming to the house on one occasion, then telling the Appellant’s brother that they would send a letter. The account given in the statement is that there was a visit by the Supreme Security Council who gave his brother a letter. If the account was as the Appellant now claims and that they had come on more than one occasion and had specifically told his brother that they were going to send him a letter then I am satisfied that the witness statement would have given such an account.
41. Furthermore, the Appellant’s account in evidence as to why his brother had not told him directly about these incidents is wholly implausible. The Appellant confirmed in cross-examination that his brother did not mention the letter to him at any time. When asked why not, he claimed that he did not want his brother being involved and that would put his life at risk. The Appellant had told him not to discuss matters with him. I find that to be inconsistent with the Appellant’s own evidence that he had received the letter from his brother’s friend and that it had been his brother who had given him the letter. His brother was therefore clearly involved and furthermore according to the Appellant’s oral evidence at the hearing, his brother had fought and argued with members of the security council therefore demonstrating his involvement in the Appellant’s affairs.
42. I also find the Appellant’s account in his evidence as to why his brother had not told him about the letter directly or at all to be wholly implausible. The Appellant confirmed that his brother had not mentioned the letter to him because he did not want to put his brother’s life at risk. I find that inconsistent with his earlier evidence as stated that his brother had been clearly involved by fighting with the authorities. I also consider that if the Appellant’s brother had received a visit by the SSC in July that it is reasonably likely that he would have informed the Appellant of this. I do not believe that given the circumstances of the Appellant’s appeal that his brother would have concealed from him a source of potential evidence relevant to any danger or risk emanating from Libya, nor that the Appellant would not have wished to talk about such matters as they would be clearly relevant irrespective of any risk.
43. When making an assessment of the document, I note there has been no attempt to authenticate the document either in its form or in its content. It is clear from the expert report of Professor Joffe (dated May 2013, at paragraph 51) that the expert knew of the letter but Professor Joffe makes no reference whatsoever as to whether any similar letters had been issued or even if he had seen or been aware of any such letters.
44. Given the previous findings of Judge Kelly that there had been no interest in him since his arrival in 2010, I do not find it credible now that the SSC would begin to attempt to track him down via visits at his home after such a period of time.
45. Having considered the evidence as a whole including the Appellant’s oral evidence and the form and content of the document, I do not find that it is a reliable document upon which I can place weight and consequently I have reached the conclusion from the evidence when, taken as a whole, that it has not been demonstrated that there is a reasonable likelihood that there has been any adverse interest shown in the Appellant by the SSC since he has left Libya.
46. I now turn to the risk of return in the light of the Appellant’s history and profile. The Appellant relies upon a report from Professor Joffe. Since the date of his last report in April 2012 it is recorded that it has been an eventful time in the history of Libya. The country has organised its first national elections and has begun the process of reconstructing the state. At the same time, the security situation has worsened, particularly in Benghazi and in the Fezzan typified by the assassination of the American Ambassador to Libya in Benghazi in September 2012. It is recorded that there had been growing political tensions, particularly over the roles to be played by those who were engaged by the Gaddafi regime before the civil war and now that that regime has been removed from power. Most worryingly, religious extremism has intensified in Libya and the country’s poor border security has made it into a regional arsenal and arms supplier.
47. The report at paragraphs 8 to 17 gives a précis of what has happened in relation to the elections that were due to be held in June 2012 but which were subsequently held on 7th July.
48. In respect of Governorates of Libya, that is dealt with at paragraphs 18 to 27. A good start was made by the new assembly, the General National Congress (GNC) to the process of introducing Constitutional Governorates in Libya. On 8th August 2012, the National Transitional Council formally handed over power to the new GNC. Mohammed Mughariff, the former Libyan Ambassador to India until he defected in 1980, to become the founder of the NFFL, the foremost opposition group to the Gaddafi regime in exile thereafter. He was selected as speaker. The report sets out the formation of a new government due to be completed by 8th October and was delayed by a dispute between the premier and Dr Jibrl about how former regime members should be treated within the new state. Dr Jibrl wanted them to be able to return to government in administration posts but Dr Shaghour insisted that due weight had to be given to issues of accountability for past behaviour. The difficult issue of the future status of past collaborators with the Gaddafi regime had raised its head and that became what is described as a “light motif” and the political development of Libya during the year. Dr Abu Shaghour’s success was not maintained and within a month the government had fallen and in his place congress elected Ali Zidan, a human rights lawyer as premier for the remaining twenty months of the interim administration. He was not successful in overcoming the fragmentation of the security situation and in January 2013, the parliamentary leader Mohammed Mughariff, who acts as Libya’s interim president, narrowly escaped an assassination attempt whist in southern Libya. In April 2013 some of the most powerful militias, led by those from Misurata, took action which directly threatened the political process in Libya by threatening to close down the GNC and blockading foreign affairs, justice and electricity ministries in Tripoli.
49. It is recorded at paragraph 26 that the new constitutional arrangements were a very hopeful sign for the future but there remained considerable scepticism about whether anything substantive would be achieved. Since the elections took place there have been incidents that have dashed much of the optimism.
50. The security situation in Libya is set out at paragraphs 28 to 39. The report refers to worsening security situation being highlighted in August 2012 which pointed out that violence had worsened in Tripoli and Benghazi since the elections at the start of July as well as Kufrah and in the Jabal Nafusa. The report refers to gun battles, car bombs and a seven member delegation from Iran being kidnapped. There had also been a string of assassinations. Further security problems emerged in October. The crisis began after members of the Misurata militia were kidnapped during a punitive mission to avenge the fatal ill-treatment in Bini Walid of the alleged assassination of Colonel Gaddafi in October 2011. The government allege that the town had become a haven for former regime officials and for criminals. After a brief assault the town was occupied amidst international fears that revenge attacks would be carried out. The new Libyan Government insisted that the human rights at the town’s 80,0000 population, 25,000 of whom were said to have fled the refugee camps to avoid fighting, had been respected.
51. It is recorded that the security problems still remain and no means had been found to bring the major militias in line with the government’s declared objective of integrating them into forces under its own control. Whilst it is right that 6,000 new recruits had emerged for police training courses, the Zintan and Misurata militias remain as effectively independent powers within the state. It is also recorded at paragraph 34 that the major militias not only continue to dominate. nominally state controlled forces of the Supreme Security Committee (the replacement for a police force, ostensibly under the control of the Ministry of Interior but, in reality, controlled by autonomous militia command structures) and the Libyan Shield (which supplements the army under the formal command of the Ministry of Defence), but they also persist in their usurpation of the role of the state over security and judicial issues.
52. As to the situation in Benghazi, at paragraph 36 Professor Joffe notes that in Benghazi there had been a series of assassinations of security officials who had had links with the former regime. At the start of April 2013, four Egyptian Christians were arrested for allegedly proselytising. Although they were eventually released without charge the incident highlighted the growing intolerance and uncertainty of the situation in Libya. The non-governmental organisation Reporters without borders reported at the end of April 2013 that media workers in Libya were increasingly threatened by militias. Security in Benghazi deteriorated yet again when the police chief there was assassinated in mid January 2013. At paragraph 39 Professor Joffe quotes the guidance given by the Foreign and Commonwealth Office dated 10th May 2013 advising against all but essential travel to Benghazi noting that armed groups are disrupting access to a number of government ministries in Tripoli.
53. There is a separate section dealing with the Salafist threat at paragraphs 40 to 46.
54. The factual evidence given in Professor Joffe’s report as to the current situation in Libya appears to be consistent with that set out in the other country materials provided including the Operational Guidance Note (sourced from Amnesty International Reports and the US State Department Report) and Human Rights Watch Reports. The developments in the evidence of Professor Joffe are consistent with the wider country evidence on the continuing problems with the security situation in Libya particularly Benghazi and the issue of the militias and the impunity with which they operate outside of governmental authority.
55. I have therefore considered the risk on return in the light of the Appellant’s past history and profile and that material. I have set out earlier the findings made by Judge Hindson and Judge Kelly that are relevant to his profile and past history. The report of Professor Joffe and the country materials demonstrate that the security situation in Libya over the past year has seriously declined despite the advances implied by the elections in July 2012. The militias have reinforced their control and the government have been unable to rein them in (see paragraph 47; page 293 of the bundle). The border security has worsened and judicial authority is nonexistent, individuals in Libya face a completely arbitrary security situation which include that human rights cannot be guaranteed. The situation in Benghazi is described as a “veritable reign of terror” against individuals associated with the previous regime.
56. The question is whether the Appellant will be perceived as a supporter of the former Gaddafi regime. The Appellant’s past profile and employment history is of direct relevance to this issue as to how he will be perceived or likely to be perceived by the population upon return.
57. Whilst Mr Wardle describes the Appellant as “merely a guard” that is not an entirely accurate picture of the Appellant’s profile. The evidence accepted by the Tribunal was that he had been a member of the internal security services since 2005 and had subsequently been posted to the head office in Benghazi. His role in the security services was known to those in his home area and those in custody (for terrorism offences) who were aware of the Appellant who would see them during their incarceration. The Appellant had remained in that post until he left in 2010.
58. Even if his role in the regime could be classified as “minor”, Professor Joffe states in the report that the actual duties carried out were in effect immaterial and that the mere fact of his employment was sufficient to place him at risk.
59. I have considered the country materials that have been placed before me as to demonstrate those categories of person who are likely to be at risk due to their past support for the Gaddafi regime. On a careful reading of them, those country materials do not seem to make a distinction between those who had a high level or showed a low level of support for the former regime. It was noted that armed groups set up investigation and arrest units, drafted lists of “wanted” individuals, set up checkpoints and forced their way into homes to capture presumed outlaws or people suspected of aiding the former regime and in some cases ran their own detention facilities. In implementing their policy the armed brigade went after a large number of suspects. The mere possession of pro-Gaddafi songs or photographs saved on a mobile phone often justified immediate detention as did hailing from a town or community accused of siding with the Gaddafi forces during the war. In many cases presumed ties to the former regime appear to be little more than pretexts to retaliate against people against whom the armed brigade had held personal or professional grudges or as a means of extorting a ransom. (See pages 248 to 249 of the bundle; trial by error justice in post-Gaddafi Libya Crisis Group Middle East/North Africa Report dated 17th April 2013).
60. It is further recorded that armed groups continue to detain thousands of accused of links to the former regime. Some were released after preliminary investigation, but many are being held without due process and without having seen a judge. Of the roughly 7,000 still in detention, some 3,000 are said to be in facilities officially run by the state. The rest remain in makeshift prisons under the control of armed groups, mainly in Tripoli and Misurata. In May 2012 the NTC gave the Interior and Defence Ministries a two month deadline to refer to proper judicial authorities detainees “against whom there is sufficient evidence attesting that they have committed acts considered crimes under the law or otherwise set them free.” However, details were not fleshed out and so far, it appeared that local judicial districts have decided on their own how to proceed, forming screening committees in consultation with local authorities and armed groups.
61. Thus it does not seem to matter what the Appellant’s actual behaviour was (even if it included as Mr Wardle points out, his imprisonment at the hands of the Gaddafi regime), the fact that the Appellant held such employment would not mitigate the risk to him. There remains, according to Professor Joffe, archive material of the former regime which had survived the uprising and civil war in Libya which is being utilised to track down or trace those involved with the Gaddafi Government. Whilst it is stated that it was speculative on behalf of the Secretary of State to submit that that documentation would also include those who had been imprisoned by the Gaddafi regime, it seems to me that the archives are likely to include that type of information as much as it is to include those who were part of the regime. Nonetheless it appears from the country materials that someone’s actual behaviour, may not necessarily be the determining factor in assessment of risk. Thus I consider the fact that he had been outspoken against the regime is not likely to play a significant part in how he is perceived in view of the country materials and the report of Professor Joffe. The fact of his past employment and his role it is reasonably likely to place him in the category of those who are likely to be perceived as supporters of the former regime.
62. In making an assessment of risk to those perceived in such a way, Mr Wardle submits that the actual figures are very few given the size of the population in Libya. He refers to paragraph 27 of Professor Joffe’s report where he refers to the proposal circulated inside the GNC to bar anybody who had held a position under the former regime from holding an official position in the future. Professor Joffe noted “A law that would, in effect, bar virtually half the population”. Thus he submits that the actual figures of those who have been targeted are small in comparison with the figure for the population and those who had worked for the regime.
63. The country information gives a figure for the number of people currently in detention in Libya. The figures as at October 2012 are in the region of 8,000 detainees (see page 297). Of those 8,000, it is estimated that 3,000 are held by the Justice Ministry, 3,000 by a multitude of armed groups and 2,000 held by the Defence Ministry …at the Supreme Security Committee (the quasi official body of the anti-Gaddafi fighters). It is recorded that most detainees are former security force members of the Gaddafi security forces, former government officials, suspected Gaddafi supporters/loyalists, suspected foreign fighters or migrants from sub-Saharan Africa (see page 297, Human Rights Watch).
64. It is right to observe that the Human Rights Watch Report states that the precise number of detainees in government and militia custody remains unclear. I do not find that to be surprising given the evidence before the Tribunal which makes reference to unauthorised detention camps and thus they may not feature in the gathering of statistical data concerning detainees. There is also the general difficulty in monitoring the detention of individuals in Libya. It does not necessarily cover or allow for detention by groups outside state authority including independent militias and those who cooperate with the Interior Ministry. Furthermore, whilst the report refers to half of the population holding any position under the former regime that is likely to cover a wide spectrum of individuals including those with no authority and having mundane links to the regime to those in employment in high profile government office. There is no breakdown for example, of those in the Appellant’s position as former members of the security services. In that context, I do not consider that that changes the position concerning those who are currently detained. It is submitted that there appears also to be a much wider net of those who are being targeted. At page 309 (Human Rights Watch) it also appears to include those who are “rightly or wrongly perceived to have supported Gaddafi being under threat” and it is recorded that “thousands of women and children have been displaced from their homes and living in camps often harassed. Men have been detained, tortured and killed.” There is no further description of the profiles of those who have been rightly or wrongly perceived to have supported Gaddafi therefore it is difficult to place weight upon that as a general statement when making an assessment of risk. Nonetheless, there is evidence before the Tribunal that those who were former security officials have been targeted. At page 356, it is recorded that many brigade members openly boast that they are “ on a quest to hunt down individuals who hunted them in the past. A Darna fighter vowed to kill a former security officer from Tripoli, who years earlier, reportedly had called him ‘a useless pig from the east’ in front of his entire family.”
65. I have been referred to the most recent Operational Guidance Note which is dated May 2013 exhibited at pages 399 onwards in the Appellant’s bundle. I have taken a careful approach to the Operational Guidance Note, taking into account the caveat at the beginning of the document that they do not purport to be comprehensive and have to be “read in conjunction with relevant COI Service Country of Origin Information and any other relevant information.” The Tribunal has not been provided with any relevant Country of Origin Information Report (COIR) in respect of Libya and Miss Pickering invites the court to consider the sourced material that has been used when compiling the Operational Guidance Note. The sourced material which can be seen at the foot of the page refers to well-known sources such as the US State Department Reports for human rights and also Amnesty International. In those circumstances I find it appropriate to have regard to the Respondent’s guidance to her caseworkers as set out in the OGN. At paragraph 3.10 onwards, the OGN considered those who are perceived supporters of the former regime. The conclusion is set out at paragraph 3.10.18 as follows:-
“Given the generalised attitude of resentment towards perceived Colonel Gaddafi supporters and fighters, and the force of which the Gaddafi regime previously 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 and his regime are at risk of extrajudicial execution, arbitrary detention, torture, ill-treatment and death in detention, both by authorities of the interim government or its armed affiliates, as well as by armed militias operating without government control. Communities perceived to be loyal to Gaddafi have also experienced forced displacement, indiscriminate shelling, looting and the burning of homes”.
66. It is right that at paragraph 3.10.19 it is stated that consideration will be given to the particular circumstances of the individual, including ethnicity, age and the nature and degree of the perceived relationship to the Gaddafi’s regime. Where it is accepted that an individual applicant was closely involved with Gaddafi and the regime, or his particular circumstances indicated likely risk of attracting the adverse interest of militia brigades allied to the Libyan authorities, a grant of asylum will generally be appropriate, subject to any exclusion considerations at Article 1F of the Refugee Convention.
67. Whilst the paragraphs make reference to internal relocation, it is conceded on behalf of the Respondent by Mr Wardle that if the Appellant is perceived as a former supporter of the regime then internal relocation does not apply.
68. I have therefore considered in full the matters set out in the OGN and also the country materials placed before me and the expert report of Professor Joffe. I find that the Appellant’s profile, when set against the material, demonstrates that there is a reasonable likelihood that someone who has played a role within the security services as this Appellant has, will be perceived as someone who assisted the former repressive regime and is likely to be perceived as a former Gaddafi supporter on return. There is a further reasonable likelihood that on the evidence presented that his role will be known by those in Benghazi upon return. The country materials are consistent concerning the risks to those who are perceived in this way which include the risks of extrajudicial execution, arbitrary detention, torture and ill-treatment by both the government authorities or its armed affiliates as well as armed militias who operate without government control. It had not been argued on behalf of the Secretary of State that there is likely to be a sufficiency of protection for those perceived to be supporters of the Gaddafi regime in the light of the country materials that demonstrate that most detainees held by the government and militias include former security service members who have supported the Gaddafi Government and armed militias who are operating in Libya and not under control or authority of the present government.
69. Drawing together all of those matters, I am satisfied that there is a reasonable likelihood that on return to Libya the Appellant, by reason of his past profile and employment and on the particular facts of his appeal, is likely to be perceived as a former supporter of the Gaddafi regime and thus will be at a real risk of serious harm or persecutory treatment on return to Libya. Thus he succeeds in his appeal.
70. The appeal is allowed under the Refugee Convention and on human rights grounds (Article 3).
Signed Date: 4/7/2013
Upper Tribunal Judge Reeds