Upper Tribunal (Immigration and Asylum Chamber)

THE APPELLANTS

AT

AMH

HKA

AE-S

THE ISSUES

1. Is a Libyan national at risk of persecution and/or Article 3 ill treatment on return to Libya by virtue of all or some of the following characteristics:

a. Those perceived as having been Qadhafi supporters;

b. Black Libyans (on the basis of ethnicity alone, and/or as perceived Qadhafi supporters);

c. Women

d. Failed asylum seekers.

2. In particular, is there a risk on return arising at the airport and/or on the route of return to Benghazi, Zawiye or any other part of Libya from Tripoli airport?

3. Is there a sufficiency of protection in respect of any such risks?

4. Is internal relocation available to those at risk?

5. Is a Black Libyan from Zawiye at risk on return and can he seek protection from the current regime or internally relocate to Tripoli or any other part of Libya and how does he internally relocate to/from Tripoli to another safe area if it exists?

6. Is there a high level of indiscriminate violence in Libya or parts of Libya under article 15(c) such that the Appellants will be at risk on return?

SUB-HEADINGS AND CONTEXT

Home Office practice/policy on returns

Militias

Checkpoints

Transport/travel

(i) Road travel

(ii) Air travel

Family book

SUFFICIENCY OF PROTECTION

Sufficiency of protection-general principles

Article 7

Actors of protection

1. Protection can be provided by:

(a) the State; or

(b) the parties or organisations, including international organisations, controlling the State or a substantial part of the territory of the State.

2.   Protection is generally provided when the actors mentioned in paragraph 1 take reasonable steps to prevent the persecution or suffering of serious harm, inter alia, by operating an effective legal system for the detection, prosecution and punishment of acts constituting persecution or serious harm, and the applicant has access to such protection.

3.   When assessing whether an international organisation controls a State or a substantial part of its territory and provides protection as described in paragraph 2, Member States shall take into account any guidance which may be provided in relevant Council acts.

A functioning legal and judicial system?

“lack of enforcement capability, lack of competency of the courts, and confusion over the applicability of new and old laws…. The most significant human rights problems resulted from the absence of effective justice and security institutions…. The new government fell short of establishing a consistent rule of law.”

“Other important human rights abuses included: arbitrary and unlawful killings, including politically motivated killings by groups outside government control; kidnappings; torture and other cruel, inhuman, or degrading treatment or punishment; harsh and life-threatening conditions in detention and prison facilities, some of which were illegal; arbitrary arrest and detention; lengthy pretrial detention; denial of fair public trial; an ineffective judicial system staffed by intimidated judicial authorities….”

Further, in relation to accountability and the effectiveness of the judiciary it is stated that:

“Impunity was a serious problem. Although militias detained abusive Qadhafi-era officials, the scarcely functioning criminal courts struggled to try them, and when they did attempt to conduct trials, judges often faced threats of violence. In the same vein, with the judiciary not fully functioning, the government had not taken concrete steps by year’s end to advance transitional justice. There were rarely investigations and still fewer prosecutions of those believed to have committed abuses.”

“The current limitations of Libya‘s legal system for the detection, prosecution and punishment of acts constituting persecution or serious harm mean that in general claimants would not always be able to access effective protection.”

Sufficiency of protection-conclusions

Protection by militia

INTERNAL RELOCATION

INDISCRIMINATE VIOLENCE-ARTICLE 15(C)

“serious and individual threat to a civilian's life or person by reason of indiscriminate violence in situations of international or internal armed conflict."

“on a proper construction of Article 15(c) of Directive 2004/83, it must be acknowledged that an internal armed conflict exists, for the purposes of applying that provision, if a State’s armed forces confront one or more armed groups or if two or more armed groups confront each other. It is not necessary for that conflict to be categorised as ‘armed conflict not of an international character’ under international humanitarian law; nor is it necessary to carry out, in addition to an appraisal of the level of violence present in the territory concerned, a separate assessment of the intensity of the armed confrontations, the level of organisation of the armed forces involved or the duration of the conflict.”

SPECIFIC CATEGORIES

Former/suspected Qadhafi loyalists or supporters

“Given the generalised attitude of resentment towards perceived Col. Gaddafi supporters and fighters, and the force with 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 extra-judicial 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.”

And at 3.10.19 that:

“Consideration should 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 indicate a 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 under Article 1F of the Refugee Convention.”

Family members of those associated with the former regime

‘Black Libyans’ and Tawurga

Tuareg

Mashashiya

Qawalish

“The indigenous, semi-nomadic Tabu, marginalised by Gaddafi under his Arabisation campaign, staked out a leading role during the 2011 revolution with a goal to secure their civil rights. Combining their intimate knowledge of the Sahara with a tribal network spanning both sides of the borders, they forged a successful blockade against pro-regime reinforcements. When the revolution was won, a grateful transitional government controversially awarded the Tabu commander Issa Abdel Majid Mansour oversight over vital desert crossings to the detriment of Kufra‘s majority Arab Zwai tribe. The Zwai, whose ties stretch over oil-rich territory to Ajdabiya, 150km south of Benghazi, previously benefited from Gaddafi‘s divide-and-rule tactics”.

Women

“Given the generalised discrimination towards women in Libya, and the inability of the current Government to provide protection against harm, it is likely that some women and especially particular sub-categories of women (e.g. women of African ethnicity, victims of sexual violence, and women perceived to have been allied to the Gaddafi regime) will be able to demonstrate a need for international protection. All relevant factors should be taken into account, including the age, health, educational and economic status, and the individual circumstances of the applicant. Female applicants able to show they are at real risk of persecution because they are accused of sexual ‘misdemeanours‘ or offences against family honour are likely to be able to show that they fall into the category of a particular social group (PSG).”

And at 3.11.16

“Given the circumstances and cultural factors set out above, female applicants who have been raped by soldiers loyal to Gaddafi or other combatants are also likely to be able to show that they are at real risk as members of a PSG. Evidence suggests that even where the rape victim‘s father or husband does not attach personal blame to her, as is the case with other categories of sexual dishonour, she is still at risk of being the subject of an ‘honour‘ killing, in order to save her and her family from dishonour.”

Failed asylum seekers

Risk on arrival at Tripoli or Benghazi airport

Onward travel from Tripoli

Travel to Zawiye from Tripoli airport

COUNTRY GUIDANCE

(1) In the aftermath of the armed revolution that brought about the fall of the dictatorial and repressive regime of Colonel Qadhafi, the central government in Libya has relied on various militias to undertake security and policing functions. Those militias and the many others that operate within Libya, often have their own interests, loyalties and priorities which may or may not coincide with the interests of the central government.

Article 15(c)

(2) 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 ("the Qualification Directive") 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.

Former regime members and associates

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

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

(b) others with an association at senior level with that regime.

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

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

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

Black Libyans etc

(7) A ‘Black Libyan’ is a Libyan of black African appearance, and includes a person who may not actually possess Libyan nationality but for whom Libya is their country of former habitual residence. There is endemic racism within Libyan society towards Black Libyans. However, Black Libyans who are not Tawurga or Tuareg are not per se at risk of persecution or Article 3 ill-treatment on return, and will only be able to establish the need for international protection with reference to some additional factor particular to that individual.

(8) The Tawurga are Black Libyans who are perceived by Libyans to have been mercenaries on the side of the Qadhafi regime and to have committed human rights abuses during the revolution. The Tuareg are also Black Libyans and are also perceived to have been supporters of the former regime.

(9) Whilst there remains a need for an individual assessment of each individual’s circumstances, a person who is Tawurga or Tuareg will in general be able to establish the need for international protection. The same is true of persons from the Mashashiya ethnic or tribal group. The Mashashiya are not Black Libyans but are similarly perceived as a group to have been supporters of the Qadhafi regime.

Women

(10) Whilst Libya is a male-dominated society and there is evidence of discrimination and violence against women and poor recognition of women’s rights, being female does not per se establish a risk on return. However, taking into account all the circumstances, including a woman’s age, health, level of education and economic status, one or more of the following characteristics or factors are likely, depending on the circumstances, to be significant in relation to the assessment of risk on return for a woman:

a) African ethnicity;

b) Being a victim of sexual violence, including having been raped by soldiers loyal to the Qadhafi regime or by other combatants;

c) Being a woman accused or suspected of sexual misdemeanours or offences against family honour.

Failed asylum seekers

(11) Failed asylum seekers are not, for that reason alone, at real risk on return.

Risk at point of return

(12) There is no real risk of harm to the ordinary traveller arriving either at Tripoli international airport or Benghazi airport.

(13) However, a person who has established that they come within one of the risk categories set out at (3), (4), (9) and (10) above, will be at risk from government security forces or from militias, on arrival at Tripoli International Airport, on account of information that is required to be given by passengers on arrival.

Risk following return

(14) Even if a person described in (13) above is able to pass through the airport without being detained, because of the presence of militias at various checkpoints such a person is reasonably likely to be detained at a checkpoint en route to his or her home area.

(15) Notwithstanding the prevalence of checkpoints manned by militias, it is possible to travel overland from Tripoli airport to other destinations without a real risk of persecution, serious harm or Article 3 ill-treatment. Land travel in general is possible and can be undertaken without giving rise to a risk of harm that requires recognition in terms of international protection. The evidence does not reveal such a level of arbitrary or irrational conduct on the part of militias at checkpoints such as to put the ordinary traveller at real risk. A claim to international protection is unlikely to succeed simply on the basis of a claimed risk of travel to any particular area of Libya. Area specific evidence would have to be adduced which establishes such a risk.

(16) The ‘family book’ is the main proof of citizenship, listing family members and being required, for example, to obtain employment or a bank loan. However, the fact that a person does not possess a ‘family book’ would not prevent travel within Libya and the lack of a family book would not itself give rise to a risk of harm.

Sufficiency of protection

(17) In general, an individual who succeeds in establishing a real risk of harm by reference to the risk categories set out at (3), (4), (9) and (10) above, will not be afforded a sufficiency of protection from that harm.

Internal relocation

(18) Likewise, such individuals would not, in general , have available to them the option of internal relocation.

(19) For persons who have established a real risk of proscribed ill-treatment in their home area for a reason other than by reference to one of the categories set out above, for example because of a family or tribal feud, or because of hostility from a particular militia, it is possible to be able safely to travel from one part of Libya to another, depending on whether the reason for the risk is one that would give rise to further risk for that same reason, on encountering a checkpoint.

(20) A male seeking to avoid a local risk of harm such as described in (19) above, would be able in practical terms to relocate to another area of Libya, be it for example Tripoli or Benghazi, particularly if the person has tribal or family connections there. The absence of such connections would not prevent the person from establishing himself, in the sense of being able to live in the new community and find accommodation. It would not be unduly harsh for such a person to relocate internally.

(21) However, such a person may not be able to avoid a risk of harm in a new area where the person has no connections in terms of tribal or family links, but the person or group that is feared does have such links. A fact-specific enquiry is essential. An appellant’s assertion that the individual or group that is feared has links to say, Tripoli or Benghazi, or another prospective place of relocation, will need to be assessed in the light of the findings in relation to overall credibility.

(22) In relation to the possibility for a woman to relocate internally, taking into account the position of women in society in Libya, the difficulty for women of accessing accommodation if alone, and the rarity of a woman arriving in a community without knowing any person there, internal relocation would not be reasonable and would be unduly harsh unless in the prospective area of relocation the woman has a close family or significant other connection, aside from merely a tribal connection.

(23) In addition, bearing in mind the above factors, a woman is likely to be more conspicuous with the result that her presence may more easily be discovered by the prospective persecutor.

(24) The following cases are superseded by this decision and are no longer to be treated as providing country guidance:

The second appellant-AMH

The third and fourth appellants-HKA and AE-S

DECISIONS

In relation to the first appellant, the First-tier Tribunal made an error on a point of law. The decision of the First-tier Tribunal is set aside and the decision re-made, the appeal being dismissed on all grounds.

In relation to the second appellant, the First-tier Tribunal made an error on a point of law. The decision of the First-tier Tribunal is set aside and the decision re-made, allowing the appeal on asylum and human rights grounds with reference to Article 3 of the ECHR.

In relation to the third appellant, the First-tier Tribunal made an error on a point of law. The decision of the First-tier Tribunal is set aside and the decision re-made, dismissing the appeal of the third appellant on all grounds.

In relation to the fourth appellant, the First-tier Tribunal made an error on a point of law. The decision of the First-tier Tribunal is set aside and the decision re-made, dismissing the appeal of the fourth appellant on all grounds.

Anonymity Order

We make an order pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 and consequently, this determination identifies the appellants by initials only.

Upper Tribunal Judge Kopieczek

/6/14

ERROR OF LAW DECISION-AMH

Before

SENIOR IMMIGRATION JUDGE STOREY

Between

[amh]

Appellant

and

ERROR OF LAW DECISION-HKA

Before

SENIOR IMMIGRATION JUDGE STOREY

Between

[hka]

Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

DECISION AND DIRECTIONS

1. The appellant is a national of Libya. In a determination notified on 12 May 2011 the First-tier Tribunal (Immigration Judge Duff) dismissed the appellant’s appeal against a decision of the respondent on 24 March 2011 to refuse to grant asylum and to remove her as an illegal entrant. Permission to appeal to the Upper Tribunal having been granted, the matter came before me to decide whether the FTT materially erred in law.

2. Both parties were in agreement with me that the IJ had materially erred in law in failing to address the potential difficulties the appellant would have on a hypothetical return to Tripoli in early May 2011 when the Gaddafi regime was still in power and when it was not in dispute that the appellant is from Benghazi and is of the A tribe. The IJ based his decision on an assessment of likely risk to the appellant on the basis of her return to Benghazi and further on his assessment that she and her brother “could make a claim for Egyptian nationality, because of the nationality of their mother”. Given that the respondent contemplated return to Libya via Tripoli the IJ was obliged to consider risk at the point of return and the issue of whether the Libyan authorities there would have seen her as of adverse interest given her place of residence and tribe. Given that there was no evidence to show that the appellant had Egyptian nationality by operation of law, it was also an error for the judge to have regarded that as a reason why the appellant would not face a real risk of persecution in Libya.

3. Both parties were also agreed that the above errors did not, however, impinge on the IJ’s principal findings of fact and indeed the challenge raised against the IJ’s decision was not based on a challenge to credibility. Accordingly the IJ’s findings of fact in relation to the appellant shall stand. The only accepted facts are that she is a national of Libya born on 6 November 1979, is a female, is from Benghazi and is from the A tribe.

4. In response to questions from me both parties also confirmed they were happy for the case to proceed as an intended country guidance case. On current information it is likely to be joined to be heard with the case of her brother, Mr [AE-S] reference number AA/04537/2011.

5. It was agreed that it would be useful to hear oral evidence from Dr Joffe assuming he is available on the date fixed for the hearing. He has already submitted a report but it will obviously need updating.

6. The next step will be for the Tribunal to fix a date for hearing allocating sufficient time for oral evidence from Dr Joffe.

7. The appellant’s representatives are directed to submit a supplementary report from Dr Joffe at least 5 working days in advance of the date fixed for substantive hearing. This direction is a complement to standard Tribunal directions.

8. Closer to the date fixed for hearing the Tribunal will hold a CMR hearing to ensure that preparation of materials is in hand and that the country guidance issues are specifically identified (given the fast-changing situation presently it would be premature to seek to specify those now, although both parties are aware in general terms of the need to examine which categories of person, if any, are likely to face risk on return to Libya at the date of hearing before the panel who will do the country guidance case).

Signed Date

Judge of the Upper Tribunal

ORAL EVIDENCE OF AMH

1. In examination-in-chief the appellant adopted his witness statements dated, 17 August 2011, 7 March 2012 and 9 October, 2013. In relation to paragraph 8 of the witness statement dated 7 March 2012, there is a correction in that it was in the town of Al-Kuffrah that there were two tribes. The town was not called Alkarah. Altabo should read Al Tabou. The names of the tribes have been mistyped in the statement.

2. In cross-examination he agreed that he had come to the UK in October 2010 as a student but after the revolution began in Libya he claimed asylum, in May 2011. He was interviewed in connection with his asylum claim and he made the statement dated 17 ^th August, 2011, reproduced at pages 324 to 342 which he had adopted today.

3. Before he came to the United Kingdom to study he lived in Zawiya with his wife and five children. Another child has been born since he has been here. Before leaving he moved his wife and children to live with his parents in a village just outside Zawiya. His wife and children were living in the village of Belazi when he made his claim. Both his parents also lived there. His wife and children were living with his parents. His children were born in 2003, 2004, 2005, 2006, 2009 and one in 2011. His children are now aged between 2 and 10 years old.

4. He has four brothers and three sisters. His brother, AO was living in Tripoli when the appellant left. He had been living there since 2009. The appellant’s brother, S, lives in Egypt and he had lived there since 2008. Another brother, H, lives in Zawiya but separately from his parents, and his other brother, A, also lives in Zawiya separately. His sister, Se, lives in Zawiya separately and his second sister Su lives in Al Ujelad, which is west of Zawiye. His third sister, A, lives in Tripoli. He has uncles and aunts living in Tripoli, Zawiya and Zuwara. S is the only member of the family living outside Libya. All the appellant’s uncles and aunts are of the same ethnicity.

5.       The appellant confirmed that he had been in contact with his family and friends when he made his claim. AO at that time was in Tripoli. He agreed that he had said that his brother did not have problems there and was better than before.

6.       He was referred to para 33 of the statement which starts at page 324. The appellant agreed that his brother AO moved to Tripoli and in the first sentence of that paragraph he said that his brother has had no problems in Tripoli. He agreed that he went there because he had ethnic problems in his area. He agreed that his brother’s move to Tripoli but that was not without problems. The appellant agreed that he had not been able to contact his brother since shortly before he moved to Tripoli. He was referred to his asylum interview at question 226 where he explained that when he had said that his brother was better than before he was making an assumption based on the fact that he had not heard that he had been having problems from anybody.

7.       To avoid problems his brother was going to work and returning from work and did not go out, avoiding problems. This was in Tripoli. Before he came to the United Kingdom he knew his brother had gone to Tripoli and that was when contact with him terminated. His brother told him about the problems.

8.       He was referred to his witness statement which states that he had not been able to contact his brother since before he went to Tripoli. The appellant explained that he had heard that his brother had problems from other members of the family. The family had told him of his problems in Tripoli and they got this from him. He was referred to his evidence moments earlier when he said that his brother had told him of his problems, and the appellant agreed that that was the case.

9.       He was referred to para 46 of the same witness statement of 17 August 2011 where he said that at that date his family were still staying at his parents’ house near Zawiye, not because it was safe but because they were scared to travel. The remainder of the paragraph was put to him.

10.   The appellant agreed that that was what he had said. They think it is safer to stay wherever they are indoors rather than to travel. He was then referred to what he had said in his second statement at paragraph 4 and he agreed with the contents. He agreed that his family had continued to live in the village just outside Zawiye with his parents, as had been found by the Immigration Judge, where his parents had always lived.

11.   It is true that the last time he had spoken to his wife was two weeks before the full hearing, around 20 August. During the conversation his wife had told him that rebels had started to take revenge against black people because it was assumed that they had all fought with Gaddafi and that he had not spoken to her since.

12.   He agreed that it was alarming to hear that his wife and family were planning to escape and leave their home. This news came only three days after the first witness statement. His first witness statement was on 17 ^th August, 2011 and it was around 20 ^th August, 2011 when he spoke to his wife. The appellant said that he signed his statement and then went to court, but it was adjourned. It was after the adjournment that this contact happened. People involved with the revolution entered the area and problems started.

13.   The appellant agreed that it was an upsetting telephone call to receive and he had not been able to make contact with his wife again. The hearing before the judge had taken place two weeks later. The appellant insisted that he had told the judge about the telephone call. It was pointed out to the appellant that the judge had said that his family remained in Zawiya. It was pointed out to the appellant that even when he applied for permission to appeal to the Upper Tribunal his grounds of appeal stated that his family remained living in Zawiya. He was referred to the grounds dated October 2011. 21. The appellant maintained that he told the Immigration Judge about the call from his wife. Since October 2011 he did not know where the family went to until a friend called HH contacted him who told him that his family went away. He spoke to him when he, HH, was in Libya but he does not know where he is now because all his contacts are cut. He spoke to him in January 2012 and he was in Libya up to that point.

14.   He was referred to his witness statement dated March 2012 at para 5. (We quote that paragraph of the statement in full:

“I was also in touch with my friend HH by telephone. HH told me that there were four tribes who are in control of different areas of Zawiya; Awlad Salkar, Awlad Sowlah, Awlad Ajinah, Iwlad Abdulmula. He told me that sometimes these tribes work together and sometimes they fight each other, but they are all using violence to keep control of their areas of Zawiya, and they are all persecuting black Libyans. HH told me that my father had been beaten up by the rebels. He said that my father had been taken to hospital and this was at the end of January 2012. That is the last I spoke to HH. He told me that the rebels came to my father’s house in Zawiya and beat him and that my wife and children have fled Zawiya, he did not know where they had gone. All my family have left, my father, my mother, wife, children, brothers and sisters. The house is completely empty. HH has been to visit them and found the house been abandoned.”)

15.   As to whether up until that point his family had stayed in Zawiye, he does not know as this is what H told him. He said they are not there. They were there when the rebels came to the house and beat his father.

16.   It was put to the appellant that on this account his family had stayed in Zawiya up until January 2012. He said he believed they stayed until August 2011. He received a call from his wife saying that they were all planning to escape. The call lasted for five minutes and she was scared. He did not know where they stayed until he was told by HH.

17.   He agreed that he had contacted the Red Cross. He had lost contact with all his family members. It was put to the appellant that he had not mentioned in his witness statement having lost contact with his brothers and sisters. He explained that they all had his telephone number. As to why he had not mentioned in his witness statement that he had lost contact with his brothers and sisters, there was no contact but they have his telephone number.

18.   The appellant was then referred to page 158 in relation to his contact with the Red Cross. S is his wife, Mu is his father, Ma is his mother, H is his daughter and A is his son. He was asked why the letter only referred to these members of his family and he said he had meant all his family, especially his parents. He was referred to pages 156 and 155 of the bundle. He explained that he had no further documentation because one of the people is called Sarah and he has met her more than once at a place where she meets asylum seekers and she has said that there is no news.

19.   He was referred to para 42 of his witness statement dated 17 August 2011, in relation to his claim that people had been arrested in Libya as a result of his encouraging them to demonstrate. He agreed that the paragraph was accurate. HH told him that the reasons his friends H and J had been arrested because of him. This is the same HH he had previously referred to. They had been actively demonstrating against Qadhafi. The appellant had encouraged them by phone to demonstrate more. The appellant did not know when they were arrested because he was not there. HH was warning the appellant about going back. The appellant had been one of the reasons why H and J had been arrested. HH remained in Libya until the appellant’s last call in January 2012.

20.   It was pointed out to the appellant that he had said that HH had fled. The appellant responded by saying that HH went to Tunisia. He went there to make calls and then went back. He received a call from HH while events were taking place. It was some time before 17 ^th August, 2011 and the appellant did not know when HH returned.

21.   The appellant said that he had said that HH remained in Libya because he was there the last time he had spoken to him. It was put to the appellant that his account was contradictory in terms of the level of contact with family and friends in Libya. The appellant said he did not understand why it was said to be contradictory. It was only one person he knew who had spoken to him and the second time was his wife. It was suggested to him that he had a wide number of family in Libya apart from his wife and friends. He had three brothers and three sisters, uncles and aunts. However, he does not appear to have given any information about his efforts to contact them. The appellant said that when he came to the United Kingdom he did not inform any of them that he was coming. Everyone was scared and black people especially were being targeted because they cannot really speak.

22.   Even if his brothers and sisters, uncles and aunts knew that he was coming here, they were all living separately. They could get his telephone number from his wife or anyone else. As to his previous evidence that they had his number, did not have all the numbers to contact everyone.

23.   It was suggested that if his account was true he would have made efforts to find out from his wider family what had happened. The appellant said that his account was true. His wife was not a Libyan citizen so he could not contact her family. He was thinking of his family and he was worried and because of this he has become diabetic. It was HH who told him about his family. Again it was suggested to him that if he had been worried and anxious to find his family after 20 August 2011 it would have been possible by one of those routes, particularly his family in Zawiye, to find out that they had remained in his father’s house at least until January 2012. The appellant said that HH was the closest to him and he contacted him and he told him about what had taken place.

24.   In re-examination he said that Zawiye is 45-50 kilometres away from Tripoli, and HH went to Tunisia and then returned. Tunisia is 70 to 100 kilometres away from Zawiye. The appellant’s wife is from Yemen.

25.   In answer to questions from the Tribunal he said that that he had not tried to make any contact with his wife’s family in Yemen to see whether they might have heard from her because he does not have their telephone number. He does know their address but had not written to them as there are troubles in Yemen as well and that the post was not working. As to whether he had made any contact with his brother in Egypt, he has no telephone number or address for him.

26.   In further cross-examination he said that his brother was not a famous preacher in Egypt but a normal person. He was only studying engineering in Egypt. He was referred to the witness statement of ESMA (page 344). His brother, S, had been a famous preacher and advised people on Sharia law before he went to Egypt. He met that witness in Bournemouth.

27.   The appellant said that before his brother went to Egypt this witness had known the appellant’s brother but there was no contact between the appellant and his brother now. The witness had not given the appellant his brother’s telephone number. He did not ask him for his brother’s number.

28.   As to how it was that his brother was a famous Sheikh in Libya but went to being just an engineering student in Egypt, he was not entirely sure what his brother was studying. He thought it was engineering. His brother went to Egypt to study before events took place in Libya.

29.   In answer to a further question put by the Tribunal in relation to the witness statement of ESMA (page 344) who states that the appellant's brother had had serious problems in Libya and had to flee to Egypt, it may be that the government was making it hard for him and which is why he thought of going to Egypt to study but he did not go during the troubles. He did not know that, as the witness statement says, Mr A had spoken to his brother twice. He was not aware that this was in Mr A’s witness statement. He knew that he knows his brother and was in contact with his brother. As to why he did not contact his brother in Egypt to see if he had any news of his family. Mr A left the UK and the appellant has lost all contact with him.

30.   In answer to further questions in re-examination he said that his wife is a Yemeni citizen and ethnically she is “close to black”. When asked if he would explain what he meant he said that she was nearer to black than she would be to white in terms of her skin colour. Her father is black but her mother is mixed race like his wife.

EXPERT EVIDENCE

THE EXPERT EVIDENCE

1.             The following is a summary of the expert evidence, as contained in the written reports and in the oral evidence. In addition to their written reports, the experts gave written answers to questions submitted on behalf of the respondent. We have not summarised those parts of the experts’ reports which have been brought up to date by later reports or where information is already contained within, and is consistent with, other of the expert reports.

Dr Alan George

2.             Dr Alan George has provided three reports dated 20 March 2012 and 2 October 2013, although the second of the reports amalgamates and up-dates the first. He provided responses to the Secretary of State’s written questions in the third report dated 31 October 2013.

3.             We note that his up-dated report proceeds on the basis of AT’s claim that he would be targeted as the son of an intelligence officer. However, as we have noted, that aspect of the appellant's claim was not found to be credible by the First-tier judge. Nevertheless, that issue does not detract from the expert evidence contained in the report.

4.             Putting current events in Libya into context he gives a brief overview of the Qadhafi regime and sets out the events of the uprising. We note that he states that Qadhafi’s forces largely comprised foreign mercenaries although in oral evidence he accepted that that was probably an overstatement of the position. He would now put it in terms of Qadhafi’s forces “including” foreign mercenaries.

5.             On 23 October 2011 the chairman of the Transitional National Council (“NTC”) declared Libya to be liberated and the war to be over. The report explains the post-Qadhafi political landscape.

6.             In relation to security issues at paragraph 42 he describes security conditions since the fall of the Qadhafi regime as having been “chaotic and occasionally dangerous” and that de facto control is exerted by numerous local militias that operate checkpoints at the entrances to their territories, paying lip-service to the national authorities. He refers in the same paragraph to the detention of actual or suspected Qadhafi loyalists as having been a priority with consequent ill-treatment and torture of detainees, several of whom have died.

7.             He reports that “generally peace has prevailed” but that there have been frequent, albeit short-lived “flare-ups” involving conflict between the militias. Progress towards the formation of a national judicial system, police force and army has been painfully slow. The security vacuum has allowed extremist Islamist factions to operate largely unchecked with Sufi mosques and shrines being destroyed, and Western targets including US and British diplomats having been attacked.

8.             Dr George quotes from a report by the International Crisis Group of 14 September 2012 which refers to Libya as a country of regions and localities pulling in different directions, beset by inter-communal strife and where well-armed local groups freely roam, but where “local actors” have stepped in to provide safety, mediate disputes and impose ceasefires. This being necessary in the absence of a fully functioning state without effective army or police.

9.             Under the heading “Local protection” he states that he knows of no evidential basis that would support an assertion that a person in need of protection in Libya could expect effective assistance from the local authorities ( de jure and de facto), as yet there being no effective national police force or army and with the judicial system being “non-functional”.

10.         With reference to various sources Dr George provides a sample of violent incidents between October 2011 and September 2013, numbering about 80, since the fall of the Qadhafi regime, stressing that these are just examples. There is further reference to the various militias that operate in the country.

11.         At para 60 under the heading “Allegation and suspicion” he states that a major factor in personal security is the tendency of militiamen to make snap judgements about persons’ background and/or loyalties. He suggests that a person can be at risk merely because of a suspicion, by association, or by a perception that the person must have been for or against the Qadhafi regime. He describes this in part as arising from a “strong propensity” in Libya “as in the Middle East generally” to confuse supposition with hard fact.

12.         Under the heading “Revenge and blood feuds” it is emphasised that the family, extended family and tribe are the fundamental units of Libyan society, that revenge is a central feature of Libyan culture and that revenge attacks can be directed not only against specific individuals but also against their extended families.

13.         The matter of blood feuds is not directly relevant to the issues to be determined in these appeals. We note, however, that it is said at para 66 that in recent years tribalism, whilst still important, has become less significant than it had been in the past. Dr George goes on to state that while particular tribes have traditional territories where they are the dominant element in the population, most if not all Libyan communities have a populace that is at least to some extent mixed. In the largest cities a significant proportion of the population never belonged to any tribe. On the other hand, it is stated that with the uprising against the Qadhafi regime there has been a general resurgence of primordial loyalties to family, clan, tribe and locality.

14.         There is an extract from the US State Department Report for Libya (“USSDR”) for 2012 which refers to the “new authorities” lacking the capacity and a basic legal framework to fully protect civil and judicial rights and that the most significant human rights problems during the year resulted from the absence of effective justice and security institutions. The report also describes various human rights abuses and states that “Hostility to real and perceived Qadhafi loyalists permeated the country, the principal targets of which were actual or suspected former Qadhafi soldiers or supporters.”

15.                During the course of the hearing Dr George provided a very helpful supplemental note in relation to the term “Wasta” which he refers to in his report. “Wasta” in summary is described as the collective name for the system of attaining objectives by means of the payment of bribes and/or by the utilisation of personal contacts and favours, such informal connections often taking precedence over formal procedures or laws. In his main report he describes how under the Qadhafi regime and perhaps even more so since, with the breakdown of central state structures, a system of power and influence based on tribe and family permeates the country. The tribe and extended family, or clan, remain the key social economic and political units to whom loyalty lies in preference to the state. Government corruption coupled with favouritism based on family and tribal ties were perceived to be severe problems.

16.                In describing the outlook for Libya there is reference to strong tribal and regional loyalties, a country “awash” with arms and with seasoned fighters, very many of whom are ill-disciplined and ill-educated. Revenge is a key element in Libyan culture and numerous autonomous militias, often antagonistic towards each other and some linked to the authorities, wield power on the ground. He states that in almost all Libya local militias are far more powerful than the authorities.

17.                Dr George concludes his assessment of the outlook for the country in stating that although the largely successful elections of July 2012 were cause for optimism, the instability which is often very violent, is likely to persist until the new authorities manage to establish functioning police forces and a disciplined national army. That, he states, is not likely to happen for many months.

18.                In assessing the potential risk to AT, Dr George, as we have observed, proceeds on the basis of AT’s account of his father’s work for the Intelligence Department of the Board of Control under Colonel Qadhafi which was not found to be credible. Going on to refer to the risk that that appellant may otherwise face he states that he would be at risk because of the security situation but that in his view the risk of his being “adversely affected by outbreaks of violence would not be high”.

19.                In considering internal flight the report states that in his view no part of Libya is presently immune to the violence and insecurity. He observes that internal flight in Libya can be problematic. Although the country is large, some 95 per cent of it is arid, uninhabited desert and in relation to its size it has relatively few populated areas. It has some 6 million inhabitants of whom about 75 per cent reside along the coast.

20.                Families, extended families, religious and ethnic groups form the basis of Libyan society and people in such communities display a strong tendency to live together in relatively well-defined districts, looking to their immediate communities for social, economic and political support. Against that background he states that “it is neither the general practice nor is it easy for individuals to relocate to parts of Libya remote from members of their families and communities.” People tend to know their fellow residents and newcomers attract attention. Residents and local militias tend to be curious about the background of newcomers and to ask questions. He states that by means of tribal contacts a pursuer can locate his quarry with relative ease. In this respect he refers to Libyan clans often being allied with others forming intricate networks that can extend over large areas and will often have members in widely disparate locations. Individuals can be located relatively easily because of the nature of Libyan society and newcomers to an area cannot easily live anonymously.

21.                Dr George emphasises that attitudes towards former members of Colonel Qadhafi’s security agencies do not vary from one part of Libya to another.

22.                In his third report dated 31 October 2013 in response to the questions about the judicial system, whilst standing by what is in his previous reports, he states that disparate elements of the system do function in an ad hoc manner, with geographical variations and variations in the specific area of judicial activity. However, there is no “coherent, reliable, nationally-effective judicial system. Thus, he concludes that the judicial system is in that general sense “non-functional”.

23.                In relation to the International Criminal Court’s (“ICC”) decision of 11 October 2013 that Libya was not unable to carry out the prosecution of Abdulla Al-Senussi (former Director of Military Intelligence under Qadhafi), this in Dr George’s view does not constitute support for the contention that Libya has a coherent, reliable and nationally effective judicial system. There is no reason to doubt that the particular legal facilities that are the subject of the Al-Senussi case are functioning in a manner that satisfied the ICC. Equally, however, that could easily be interrupted if a sufficiently powerful local militia had cause to intervene. He cites the example of the prime minister having been abducted and detained on 10 October 2013. Dr George cites parts of the ICC’s judgment which is said to focus on the particular circumstances of the Al-Senussi trial.

24.                As regards the decision that all 31 Qadhafi era officials are to be committed for trial, he states again that there is no dispute but that certain courts are functioning in Libya. However, he suggests that it is crucial to note that one of those officials is Saif al-Islam, Colonel Qadhafi’s eldest son, who remains in detention by the local Zintan militia. He cites a press report which indicates that Saif was not delivered to any of the pre-trial hearings despite his captors being ordered to produce him.

25.                As to the question concerning the “effectiveness and development of the trial monitoring network” about which there was a report dated 8 October 2013, Dr George refers to a Trial Monitoring Network established in June 2013. In quoting from the report he notes that it has evidently faced challenges in achieving its objectives including difficulties in establishing its presence in Libya and gaining entry to courts.

26.                Commenting on the Transitional Justice law and the report on it, he reaffirmed that laws passed by Parliament may not be respected by the militias that are the de facto authorities, and noted that as far as he was aware Parliament had not yet taken the final vote on the law. As the law had yet to be “promulgated”, the planned Fact Finding and Reconciliation Board had not yet been established and no compensation had yet been paid to victims.

27.                Lastly, in relation to the report on the progress and implementation of the torture, kidnapping and discrimination law, although that law has been passed, as with all other laws implementation is hampered by the extremely limited extent of government control. De facto control is held by scores of local militias who have scant respect for laws passed by a Parliament to which their loyalty is only nominal, and in relation to which he cites security council briefings dated 18 June and 16 September 2013 from Tarek Mitri the Special Representative of the Secretary-General and Head of the UN Support Mission in Libya (“UNSMIL”) which concerns conflict-related detentions.

Dr George-oral evidence

28.                Dr George’s oral evidence was given over two non-consecutive days. In examination-in-chief he said that he had recently seen a figure of 1,700 for the number of militias in Libya. Some militias have undertaken policing services although the links to the government ministry may often only be nominal. An organisation called Libya Shield was set up by the government to co-opt militias to act on behalf of the government because central government has no power of its own and has to rely on the militias. It is an attempt to bring the militias into the fold by paying salaries and issuing instructions which they may or may not obey.

29.                He referred to the issue of loyalty to the Libyan state as against tribal, local or other loyalties. The militias have no powerful motive to disband. The harsh reality is that “power flows from the barrel of a gun”.

30.                If one drives out of Tripoli and along the coast to Misrata each village and town has a series of checkpoints. Misrata has a very big checkpoint. He had tried to visit the town of Tawurga but the exit point checkpoint prevented him. In Tripoli it is possible to move around and then suddenly a checkpoint will appear, something that he witnessed. If there is a (local) crisis, the locals will come out and man a checkpoint. In Tripoli he went out shopping and saw women and children shopping. There was a strange normality behind it all.

31.                There are a series of militias co-ordinated by the Tripoli Military Council (“TMC”). In fact there are two of these TMC’s operating from the same premises and he in fact spoke to their leader. He later stated that the Defence Ministry has links to the Libya Shield. The Interior Ministry has links to the Supreme Security Committee (“SSC”). The militias came into Tripoli and did not leave. One is the Zintan militia and the other is the Misrata militia. They established a presence in Tripoli and did not budge.

32.                In relation to his report at paras 91-92 where he refers to close communities, there is no straightforward answer as to whether this applies in Tripoli. Residents of the cities, including Tripoli, are migrants from particular areas. They tend to conglomerate but there is more mixing than in the villages. People do, however, know who is in their neighbourhood. He had checked last year in a suburb for the relatives of a particular asylum applicant. The local people knew exactly who they were talking about. In Tripoli the population is, however, much more fluid; not the same as in a poorer area.

33.                People from Benghazi do live in Tripoli. He said that he does not know, however, whether they live in discreet communities and is not aware of any studies having been undertaken in relation to this.

34.                It would be unusual for anyone to come to Tripoli without knowing anyone. When he goes to Tripoli he makes sure that he has contacts in place. Someone going to Tripoli without going through a network would be noteworthy but this has to be put into context. If a person is in a small village and says that they come from such and such a place in Tripoli, someone in the village would know someone and be able to find out about that person. Cities are more anonymous. In the suburbs of Tripoli the curiosity would be intensified as in insecure situations this could be a matter of life and death. He is not able to answer as to whether a persons ‘story’ is checked through networks. As a general comment he would say sometimes, yes.

35.                A figure of 8,000 is often used as to the number of detainees. To the best of his knowledge detentions are still continuing but not on a massive scale. He could only say that it could be that someone in detention would for that reason be perceived as a supporter of Qadhafi. It is very difficult with Libya to give definitive answers. There are so many courses of action that could arise from a particular situation. There is a lack of research and figures. At a checkpoint you might often be dealing with uneducated teenagers with Kalashnikovs. It may come down to whether they are in a good mood or if they like your face.

36.                In relation to recent events (involving the shooting of demonstrators by the Misrata militia) in Tripoli, he did not see this as representing any fundamental change in the situation. Nothing very new happened to precipitate the weekend’s events.

37.                In cross-examination Dr George confirmed that he had visited Libya in December 2008 and in September 2012. The visits were mostly to Tripoli but he did make quite extensive trips to Misrata and to the Nafusa Mountains. He agreed that some parts of the 2 October 2013 report are from the previous report but this is nevertheless part of the history of Libya. He had not been provided with a copy of the determination of the First-tier Tribunal in relation to AT.

38.                In relation to the violent incidents that he catalogues in his report, he said that he was very struck by the extreme localisation of events. Violent upheavals can be disparate in type and event. It was put to Dr George that the violent incidents that he details could be put into roughly six categories. These were suggested as being: firstly, confrontations between different ethnic groups or groups from different regions; secondly, politically motivated violence especially when groups take installations; thirdly, Islamist violence; fourthly, criminal violence; fifthly, targeted assassinations or bombings which may overlap with category two or three; sixthly, attacks on peaceful demonstrators by militia.

39.                In terms of the first category, with reference to the confrontations in Kufra between February and July 2012, it could be that July 2012 is the last of them but violence could arise next week say. The confrontation pre-dates the Qadhafi era. It is difficult to say what the prospects for renewed violence in Kufra are because nothing is resolved and the militias are ill-disciplined. The smallest incident could set it off again. The same is true in Tarhuna, east of Tripoli. The clash between rival militias in Sabha involving the black African ethnic group the Toubou referred to on page 15 of the report is the last report of such an incident in Sabha although it could flare up again at any time.

40.                Dr George agreed that other incidents to which he was referred were examples of groups that bore a grudge against each other over long-standing disputes where there was vying for control of the local economy. However, the incident near Bani Walid (involving government controlled forces and militiamen-page 18 of the report) was mixed with questions of support for the former regime. Kufra could also have involved that issue as a trigger but he is not saying that it was. It is normal that a person’s actual or perceived position vis-à-vis the Qadhafi regime is important.

41.                Dr George said that he did not necessarily accept the categories that have been suggested. He would have preferred to undertake a categorisation with more detailed research.

42.                In relation to the second category, referred to an incident (page 16) of clashes at Tripoli airport in June 2012 he agreed that the response of the militia to a particular grievance was to occupy the airport.

43.                The real power at the airport in Tripoli lies with the Zintan militias, a nominally government force. He had been told that when the government took over security at the airport some militias simply put on a government uniform. When asked about other specific incidents he agreed that such violence disappears as quickly as it arises but added that it would then reappear somewhere else.

44.                Referred to various incidents that are said to be in the fifth category of violence, being targeted attacks against security forces, Dr George agreed that there were many attacks of that type. Benghazi has been a particular focus of that type of attack or killing and people have been professionally targeted. He said, however, that he would be extremely cautious about extrapolating from his report (setting out various incidents of violence) what was the evolution of different types of incidents of violence. Some of them carry the seeds of their evolution internally. For example, if you destroy a Sunni mosque there is no longer a Sunni mosque to destroy and therefore there is a decrease in that type of incident.

45.                In relation to the risk of indiscriminate violence, he did not think that everyone in Libya, just by reason of being there, is at risk of being killed. He said that he does not visit places where he is at risk of being killed. Women and children were out shopping and he was out shopping. He would not hesitate to walk about in Misrata or Zintan. He might think (more) about going to Benghazi but a targeted assassination takes some planning. The assassinations in Benghazi appear to be well planned. The risk of an ordinary Libyan being caught in a bomb explosion in cross-fire between militias is rather low.

46.                The Tripoli incident where demonstrators were shot at by militia did not start with that demonstration but in a previous exchange of fire between militias.

47.                Ordinary Libyans have little truck with militias but they are powerless. Although the Misrata elders have distanced themselves from the militias what that means in the long term remains to be seen. If the Misrata militias calculate that it serves them to withdraw from Misrata they will.

48.                There have been attempts to police the roles of militia operating in Tripoli. They do serve as police forces by safeguarding neighbourhoods, directing traffic and trying to ensure law and order. Not all militias are out of control. They run the airport and at times are enlisted by the government, but as already mentioned, there are limitations for example if their own interests are threatened. They do have quite sophisticated command and control structures and organised hierarchies. It does not mean that they are highly disciplined groups but they are not totally out of control.

49.                The militias protect the civil populace and such state-like institutions of structures as there are and the populace generally. That, however, can all go out of the window as tensions arise. Most of the time to date by no means has Libya been in a constant state of armed conflict, but that can go out of the window very rapidly as soon as militia interests come into play and conflict with those of State authorities.

50.                There has been a shift in the pattern of detentions from 2011 onwards. When there were a lot of ex-Qadhafi fighters at large there were more people to arrest. Once all the obvious suspects were arrested the rate of arrests tapered off. If someone is behaving suspiciously at a checkpoint they are likely to be arrested. Most individuals from the Qadhafi era have fled the country or have been detained and there are therefore fewer arrests on grounds of sympathy for Qadhafi. A person is more likely now to be arrested on the basis of suspected criminality or as suspected Islamist.

51.                There are categories, for example Black Libyans, who were expelled from the town of Tawurga who may be detained just because of who they are. His source is a friend who is posted to the UNHCR and produces a bulletin of problems faced by displaced persons. A particular fear is in relation to those displaced from Tawurga which is a town near Misrata mainly inhabited by Black Libyans said to be sympathisers of Qadhafi. African migrant workers are frequently detained by anti-Qadhafi militias as he allegedly recruited mercenaries on a large scale. This plugs into the deep-seated racism in Libya.

52.                A Black Libyan is of black African appearance. The Tibu are black African. There are no figures for the percentage of Black Libyans in Libya. In his opinion it may amount to 5 or 10 per cent of the coastal population, although on reflection 10 per cent may be a little on the high side. It may be 30 per cent in Kufra and 20 per cent in Sabha in the south west, although again the latter figure may be rather high.

53.                Dr George said that he was not sure that he would agree that the attention to Qadhafi related people is mostly motivated by revenge. The leanings of the militias have little changed. They would say that it is not revenge but preventing the resurgence of the regime. There is still a fervour to hunt down Qadhafi loyalists.

54.                As to why someone such as the appellant AT would attract any attention at a checkpoint, Dr George said that he would have to be highly speculative. If, for example, someone is nervous that may be enough, or if their documents were not in order. Another example may be if the person is alleged to have been a member of the security forces who committed abuses. Libya is not a country where there are a set of rules and regulations in force. If there is an 18 year old with a Kalashnikov dealing with a particular person, whether an individual was or would be suspected of association with the Qadhafi regime or is a relative of such, will depend on the particular circumstances.

55.                So far as ‘relatives’ are concerned, he derives that opinion from the nature of Libyan and Middle Eastern society. He is unable to show a particular case of such an event in relation to a relative but he has not looked for one. Dr George did however cite the example of the enquiries he made in Tripoli in relation to an asylum applicant who said that his brothers were members of the security forces. His researcher spoke to people in the area who confirmed what he had said about his brothers and that they raped people. The neighbours said that this individual would be killed (if he went back).

56.                Tawurgans who are Black Libyans can have trouble at checkpoints. As to how they would be identified, they would be asked for their ID documents or the individual may say that they are a Tawurgan or they might not be believed if they said they were not. Tawurgans have been distributed through large areas of Tripoli, and the Mashashihans also, but they are not being hunted down. They are not, however, able to go back to their home area.

57.                Mashashihans are not Black Libyans. It is not possible to tell someone from Tawurga simply by their appearance.

58.                It is common to see black people on the streets of Benghazi, Misrata and Tripoli going about their business in an ordinary way. He would say that he would now revise his report to state that foreign mercenaries were certainly involved with the Qadhafi forces but to state that his forces ‘largely comprised’ such forces was probably an overstatement. He would now say they ‘included’ foreign mercenaries.

59.                As a result, a lot of foreign workers left but it is true that Sub-Saharan workers are returning although the numbers are not known. A number are also on their way to Europe. A lot are coming back. As to whether that is an indication that the risk to them is not what it was, it may be that they fail to understand the risks that they face. Dr George agreed that it is not correct now to say that Black Libyans would be perceived as mercenaries. It would be an overstatement to say that such individuals would be likely to be perceived as ex-fighters for Qadhafi. There remains an element of racism and the majority may not have a particularly good time. It would also be an overstatement to say that there is a risk of being detained and of suffering serious harm simply on the basis of ethnicity. However, it is a question of degree; there is still a risk. He would not call the risk serious, severe or real but it is still a risk; a potential risk, for example when confronted by the 18 year old with a Kalashnikov.

60.                It is the case that it is easier to move and settle in Tripoli and Benghazi than in a village. It is also true that not every Libyan has a tribal affiliation and a person may downplay it even if he does. There is a spectrum whereby at one extreme a person depends on networks or contacts and at the other a person who is more self-sufficient. The general picture is that people rely on networks and contacts. To live away from family is unusual.

61.                In answer to our questions he said that indiscriminate violence by definition affects everybody, whether or not they are Libyan. The very fact that he was able to drive to Misrata, tour the country, have coffee, speak to people in parts of Tripoli and the Nafusa Mountains without feeling fear or experiencing violence, obviously made an impression on him.

62.                As regards Benghazi, he would still not regard the risk of indiscriminate violence as being severe but would be looking over his shoulder more than in Misrata. Benghazi cannot be compared to Beirut in the mid 80’s, Baghdad in 2006-2007 or Mogadishu for many years, where life was anything but normal. A large portion of the population is going about business as normal in Benghazi.

63.                As regards risk as a failed asylum seeker, having been in the UK for two or three years, there would be no real risk. Very many Libyans have been living in exile. The phenomenon of Libyans living outside the country for many years is nothing very special. Such a person would not stick out like a sore thumb.

64.                Re-examined by Mr Ficklin he said that as to the events in Tripoli in recent days whereby 40 demonstrators were wounded, such eruptions can arise and then die down. After a gun battle he would not hesitate (to go out) a few days later if things had died down. He would check to satisfy himself as to the situation. It would be sensible to make enquiries or to have someone with him who knows the area. He would hesitate to do research in Tripoli without a driver, not because of fear of attack but to allay suspicion and so that his objective could be achieved more easily.

65.                There are ongoing detentions but they are diminishing since the end of the civil war. Detentions could and do occur at time of attempts to quell violence. There are two categories of people if stopped by a militia that are likely to attract more adverse attention than others. These are Tawurgans and the Mashashiya, albeit for different reasons. The general position is that there are not that many categories of person in that position. The fact of being from Tripoli or Benghazi would not put a person at risk. If for example a person is from Abu Salim district they might be regarded as pro-Qadhafi.

66.                If for example, it is not known that a person is from the Mashashiya they would not be at risk. The same goes for the residents of Tawurga as it would not be known that they were from there. Such a person could be just another Black Libyan. It is common sense that someone from Tawurga is not going to reveal that fact at a Misrata checkpoint, or a Mashashiyan in the Nafusa Mountains.

67.                Members of the Misrata militia are in Tripoli and so if someone is from Tawurga they would have a problem. If a person from the Abu Salim district of Tripoli was to encounter a particularly ardent anti-Qadhafi militiaman then such a person could have a problem.

Dr Geoff Porter

68.                Dr Porter is the founder and president of North Africa Risk Consulting which is a consulting firm specialising in country risk assessments for private sector companies. Dr Porter is also an instructor with the Combating Terrorism Center at the US Military Academy at West Point’s practitioner education program. His CV states that he instructs law enforcement agencies and intelligence agencies on terrorism and security issues in North Africa and the Sahara. That short summary of his CV is sufficient to establish his expertise in relation to the issues to be determined in these appeals.

69.                He has provided reports dated 7 August 2012 and 14 October 2013. He also gave a report in response to the written questions sent by the Secretary of State to all the experts.

70.                His first report deals with events leading up to the overthrow of Colonel Qadhafi and the immediate aftermath, as well as a variety of matters that are also contained in the more recent report. He visited Libya in August 2013, therefore after the first report was written. In the circumstances, a summary of the later report is sufficient.

71.                After the overthrow of Colonel Qadhafi nationwide elections were held on 7 July 2012, judged by observers from Libya, the EU, the US and multilateral organisations to be free and fair. There were no widespread allegations of fraud, negligible accusations of polling station irregularities and almost no election day violence. Since 2012 different municipalities have staged elections for local councils. These elections have not received so much attention as the national elections and there were no election monitors so it is difficult, Dr Porter states, to gauge how free and fair those elections were. However, the municipal councils have received widespread support and are seen as legitimate elected bodies for pursuing local interests. Tripoli has yet to hold elections for a municipal council but the local Tripoli electoral commission has reiterated its intention to do so.

72.                At paragraph 13 Dr Porter states that an overall assessment of the political landscape indicates conclusively that Libya’s revolution-cum-civil war is over. There is no question about the possibility of renewed widespread violence between supporters of the ousted Qadhafi regime and revolutionaries.

73.                However, it is the case that the Libyan government does not have an effective professional army. Police forces are severely understaffed and there is no meaningful independent judiciary. Security issues have affected the ability of the General National Congress (“GNC”) to perform its political and legislative functions.

74.                The security sector of the government continues to be uncertain and poorly managed, the heart of the problem being the lack of a clear chain of command. The August 2011 Constitutional Declaration did not clarify to whom the Army Chief of Staff would report and did not clarify relations between the Ministry of Interior and Ministry of Defence and the forces under their commands. The newly created presidential guards remain outside the control of the Army Chief of Staff and the Ministers of Defence and Interior.

75.                Compounding the problem is a lack of political will to confront the numerous militias that are the source of Libya’s security problems who have the backing of large and politically potent segments of the population. Militias have been recruited wholesale into the state’s national security structure, raising questions about their reliability and allegiances.

76.                Operation Tripoli, launched in March 2013, was intended to oust militias from government buildings in Tripoli and undermine their capabilities. It was to be followed by operation Benghazi. The former had some successes but faltered after several weeks. There is very little likelihood that Operation Benghazi will be initiated.

77.                Section IV of Dr Porter’s latest report is headed “Levels of violence in Tripoli” with a sub-heading “A taxonomy of violence in Libya”. He refers to occasional confrontations throughout the country between different ethnic groups or groups from different regions, especially around the town of Bani Walid and the south eastern city of Kufra. He states that in general these confrontations are not political in nature. Instead they arise from inter-parties grudges, revenge for long-standing disputes or vying for control of the flourishing informal economy. These disputes are specific to the regions in which they occur and are not instigated by perceptions of allegiance or opposition to the Qadhafi regime.

78.                The report describes a second category of violence, being politically motivated violence in both Tripoli and Benghazi. Groups that feel that the GNC is insufficiently addressing issues have taken important installations, institutions or infrastructure “hostage” as leverage. The violence is politically motivated but the goal is not violence in and of itself. The violence quickly dissipates within days if not hours. Although casualties have resulted, the victims are not the targets of the violence and individuals are not singled out.

79.                Under the heading Islamist violence he describes “Salafi Jihadi” violence that is driven by hostility towards the West. Salafi Jihadi violence had only targeted individuals or institutions linked to foreign governments or to former high level officers in Qadhafi’s intelligence services. He refers to three particular examples and states that none of them resulted in any casualties and the attacks were extremely rudimentary. Such violence reached a peak in September 2012 with the assault on the US Consular Mission in Benghazi.

80.                When considering “Militia profile” the report states that the militias use their weapons as deterrents rather than as actual means of coercion. They also serve as irregular police forces, safeguarding neighbourhoods, establishing night time patrols, directing traffic and generally trying to ensure law and order. Important installations, key traffic intersections and some government buildings are guarded by armed, uniformed men who are not members of official law enforcement or the military.

81.                Some of the larger militias such as those from Zintan and Misrata have been enlisted by the government to function as proxies for a national security force. The National Transitional Council has allowed and sometimes encouraged those two militias to assist in peacekeeping operations around the country. Each can deploy quickly throughout the country, both having fixed wing and rotary aircraft as well as armoured personnel carriers, tanks and tank transport vehicles. Each has several thousand members.

82.                Whilst the militias operate outside or above the law they do not behave in an undisciplined manner “and exhibit sophisticated command and control”. The leadership is known to the public and there are clear hierarchies. Local militias have clearly demarcated territories. Some militias are in the pay of different ministries, for example oilfield security or airport security.

83.                On the other hand he states that this is not to say that the militias do not carry out their own interpretation of justice. The vast majority of detainees in the country (5,000-6,000) are in militia custody. Those individuals have been detained because of past affiliation with the regime, family grievances or feuds or simply because of personal insults.

84.                Regarding sufficiency of protection, there is no effective policing capability by uniformed officers under the authority of national or municipal institutions. Faced with the overwhelming firepower of militias and the widespread availability of weapons among the general population the official police cannot guarantee protection for individuals, nor can they provide recourse for individuals who have encountered problems. To secure protection individuals can turn to militia leadership and declare their support for the militia.

85.                There is the danger that in travelling throughout the country an individual who is not from a given territory will be detained by a militia. In the vast majority of instances average Libyans are allowed to pass safely through militia held territories but there remains the possibility that an individual will be detained for unexplained reasons.

86.                Militias often set up checkpoints after dark to monitor the movement of individuals. Day time checkpoints are rare although they do appear on intercity roads and occasionally on the periphery of some of the large towns and cities.

87.                Tripoli has become largely a safe city. There have been intermittent bouts of political violence but these have largely been driven by grievances that the militias argue that the GNC is not sufficiently addressing. There have been revenge killings in the city and former members of the Qadhafi regime have been persecuted. Some former members of the regime still occupy key posts in the government.

88.                Since July 2012 there has been an increase in violent crime and reports of criminally motivated murders and carjackings. Kidnapping, murder, rape and other violent crime is also increasing in Tripoli and elsewhere.

89.                In relation to Benghazi, security there is decidedly worse than in Tripoli. It has also witnessed a series of politically motivated murders of former Qadhafi officials who worked in the intelligence services. There have been more than three dozen such murders in 2013. There has similarly been a dramatic increase in criminal violence.

90.                The report states that security between cities is questionable and Dr Porter states that it is recommended that individuals fly between cities wherever possible. Two examples from personal observations are given. Nevertheless, he states that road travel in 2013 has improved and it is now feasible to travel by car throughout most of the country. Driving from Tripoli to Benghazi or Sabha is prohibitively long but feasible. The fundamental risk while travelling on roads out of Tripoli is the uncertainty regarding road conditions, the possibility of harassment from militias and general banditry. The risk of any of these is not exceptionally high but the lack of recourse to any national security service or emergency help amplifies the risk.

91.                Checkpoints exist on all major roads out of Tripoli, as well as between cities and at the entry points to towns and cities. There is an acute desire to know who is travelling, from and to where, and why. There is a lingering anxiety over a possible counter revolution and a desire to protect informal economic activities from government oversight or encroachment by other groups. They are also used to find individuals with whom the operators have a regional, ethnic, tribal or family grievance. Some are manned by police and others by militia.

92.                If someone is demonstrably pro-Qadhafi he is unlikely to be able to transit a checkpoint safely. The same applies in relation to someone from the Tawurga tribe. Racism runs deep in Libya.

93.                The procedures at checkpoints are often ad hoc. Depending on answers to questions there may be a demand for other documents such as a national ID card or identification associated with the government, a ministry, a state-owned enterprise or a militia. Increasingly foreigners are asked to provide a passport to prove nationality. Because there is no set protocol at checkpoints there is correspondingly no set way of avoiding difficulties.

94.                Tripoli and Benina (in Benghazi) airports are for the most part safe and secure and there is little immediate danger flying into these airports or transiting them. Airport security is reliable and safe well into the night, with passengers coming and going after midnight and into the dawn hours.

95.                Tripoli airport is the main entry point for flights from Europe. It is served by numerous international carriers, including British Airways, Alitalia, Air France and Lufthansa. Since the end of the conflict flights operate with a reasonable degree of regularity although unexplained cancellations or delays frequently occur. There are direct flights from Heathrow several times a week. Tripoli airport is currently controlled by the Tripoli International Airport Authority. Airport staff are employees of the airport authority and security is provided by airport authority employees. Until May 2012 security was provided by the Zintan militia. In reality it appears that airport security has been taken over by members of the Misrata militia who are now wearing official airport security uniforms and are on the payroll of the airport authority.

96.                Airport security mans checkpoints on airport access roads and around the perimeter of the airfield. There are screening checkpoints at the entrance to the airport. Screening checkpoints are rudimentary, and often staffed by untrained personnel. There are still unidentified militia members at the airport in some kind of official capacity. There are no weapons apart from those carried by security officials.

97.                There is reference to a security incident in June 2012 when a militia group from Tarhouna seized control of the airport in retaliation for the detention of their leader by an undisclosed group in Tripoli. Some planes were damaged but no passengers were hurt. The Zintan brigade retaliated but eventually the Tarhouna militia withdrew. There has been no major security breach since then.

98.                Benghazi International airport is a secondary point of entry to the country, largely serving as a domestic airport. There are no direct flights from the UK although transfer directly from Tripoli airport is possible. The airport authority provides security. For the most part it is free of security concerns.

99.                Mitiga airport no longer services inbound flights from Europe apart from in exceptional circumstances. It services regional international carriers to destinations such as Egypt, Jordan and Syria.

100.            Customs and border patrol officers control entry and exit at international border crossings at the airports of Tripoli and Benghazi. Questions posed to Libyans returning from abroad include reasons for travel and length of stay abroad, and reasons for return. The officials do not generally ask questions about political affiliation or participating in the revolution.

101.            Occasionally individuals are singled out for interrogation on return. Return without a Libyan passport would be grounds for further questioning, as would travel to sub-Saharan Africa and to the Sahara states in particular. Dr Porter states that Libya does not recognise dual citizenship.

102.            Travel to European countries and to the US does not provoke suspicion. There may be animosity to those who “sat out” the revolution in Europe or the US, but this has not been a basis for persecution. There have been no reported instances of returnees being detained by airport authorities or militias on leaving the airport.

103.            Benghazi residents, who have different accents from those from Tripoli, travel freely throughout the country, including in Tripoli. Some Libyans from Benghazi live in Tripoli unmolested.

104.            At para 63 Dr Porter states that individuals who worked for the Qadhafi regime’s intelligence services are exposed to unique risk. There have been numerous instances of assassinations, those people having apparently been on a hit list of 109 names. The risk applies even to those who left the intelligence services during the revolution and sided with the rebels. The assassinations have the hallmarks of being well planned and deliberate, but with no “collateral damage” or other casualties.

105.            Souq Al-Juma’a in Tripoli (where AT is from) has its own militia. It is likely that AT would be able to come to some accommodation with the militia to secure his safety. He is also likely to be able to relocate without his Souq Al-Juma’a origins being revealed or jeopardising his safety.

106.            In relation to AT’s lack of tribal affiliation, there are many who are not associated with tribes or who downplay their tribal affiliation, especially in Tripoli and Benghazi where it has become less important than neighbourhood ties or social class. It is entirely possible for someone to relocate to another part of Libya without negative impact in relation to tribal issues.

107.            In commenting on the risk to AT in terms of his claim that his father worked for the intelligence services under Qadhafi (which has not been found to be credible by the First-tier Tribunal) Dr Porter states that Libya is very interconnected and people in even far flung places know of each other. Individuals closely associated with the Qadhafi regime “and individuals’ family members” have been kidnapped detained and murdered because of their past connections. However, that is not always the case. Seventy per cent of Libyan labour force during the Qadhafi regime worked in the public sector, so that the “gross majority” of Libyans was in some way associated with the regime. Association with the regime was especially high in Tripoli. It is not unusual for individuals to have worked for or to have had family members who have had some relationship with the previous government.

108.            It is possible for a woman to travel overland from Tripoli to Benghazi. Three domestic airlines offer multiple daily flights between the two cities for approximately £64, taking less than one hour. Were HKA to travel overland it is recommended that she travel in the company of other women or men. She would be able to hire an inter city taxi or take a bus from Tripoli to Benghazi. Road travel could take well over 15 hours. It is not necessarily dangerous for a woman to travel alone but it is unusual. A woman travelling alone would be likely to be subject to additional questioning at checkpoints, especially since the revolution. Libyan society has become more socially conservative.

109.            Dr Porter answered the respondent’s written questions in a further short report dated 5 November 2013. He states that the ICC report in relation to Abdullah Al-Senussi is evidence of the vagaries of the Libyan justice system, in particular the possibility that Libya would be unable to provide Al-Senussi with legal counsel. The ICC’s decision also potentially reveals the politicisation of the justice system. Al-Senussi’s circumstances are far from representative. It is unlikely that a less well-known figure would be treated in a similar manner.

110.            The fact that the Court is unable to compel the captors of the 31 Qadhafi era officials to bring them to court is evidence that there is no effective judiciary. The militias largely do as they please. The Zintan militia holding Saif al-Islam did not bring him to the pre-trial hearing although it had agreed to do so, and the Tripoli court has no power to compel the militia to do so.

111.            The trial monitoring network is unlikely to be effective given that many NGO’s recommendations are not implemented, because for example the counterparts with which the NGOs are dealing do not have the authority to enact reforms. At other times the reforms recommended do not correspond with the actual state of the institutions to be reformed.

112.            As to the progress and implementation of the torture, kidnapping and discrimination law, like the trial monitoring recommendations, this is aspirational. There is no effective police force and no effective mechanism for monitoring discrimination. People are regularly kidnapped without any subsequent prosecution.

Dr Porter-oral evidence

113.            Dr Porter gave evidence by video link. In response to questions in examination-in-chief from Ms Harrison he said that there are many militia that vary in size from several thousand to a handful of people. Through family and tribal connections a person could secure protection. He does not know how someone could secure protection in Tripoli if the person is not from that area.

114.            In relation to securing protection, the militias are not by definition hostile to each other. There are some large coalitions of militia, for example Libyan Shield and the Supreme Security Committee. It is not impossible that someone could be allied with several militias.

115.            In Benghazi the violent incidents and criminal violence are entirely unpredictable, so it is possible that one could be a victim of criminal violence, or kidnapping.

116.            As regards a woman travelling in Libya, the extent to which she would be able to navigate through the checkpoints would depend on the purpose of the travel. An example would be if she were visiting family and the family member were a respectable member of the community. On the other hand if she were engaged in commerce, she may have to pay some form of bribe. She may have to answer questions about her ultimate destination.

117.            He is not aware of a woman suffering ill-treatment at a checkpoint. Libyan society is very segregated. He travels with groups of men so he has no direct experience of that issue.

118.            A single female with no links to the community would have tremendous difficulty gaining access to accommodation. It is very rare that Libyans travel to new communities without establishing prior contact in terms of tribal or family connections. It is very rare for a woman to arrive in a community without knowing a single person in the community. It is very rare for a single woman to rent a hotel room by herself. The suspicion would be that she is a prostitute.

119.            As to who controls Benghazi airport, he does not know but it could be Ansar Sharia or Libya Shield. Few westerners have travelled to Benghazi in the last several months because the security situation is so precarious.

120.            He is not aware of any incidents at Benghazi airport since 2012, although local newspapers would have reports of incidents in relation to insecurity at the airport.

121.            The citizenship law has not been updated; there is no constitution in Libya.

122.            In response to questions from Mr Ficklin he said that as of today the Misrata militia had ostensibly withdrawn from the airport over the weekend. There had been a confrontation between them and demonstrators. Up to last Thursday the Misrata militia were providing airport security. Many members of the customs and border control are from the Misrata militia. It is the ministry of the interior that is in charge of the airport not the ministry of foreign affairs. He does not know whether the ministry of the interior dictates to the customs and border officials what questions to ask.

123.            The events in relation to the Misrata brigade last Friday did take place partially in the neighbourhood of Souq Al-Juma’a. As to whether AT, having ID from that area, puts him at risk in terms of contact with the Misrata militia, the answer is yes. Passengers arriving are required to fill out a disembarkation form with their name, date of birth, nationality and local address. If he arrived at Tripoli airport and were to hand it to the customs and border officials from the Misrata militia, this would create a potential risk. If the Misrata militia left Tripoli that does not mean that they would not be replaced by other militia.

124.            In terms of whether the policing function of the militias conforms to a standard policing framework of investigation followed by a court appearance, his understanding is that they undertake that function in a completely arbitrary way. When he was in Libya in August his Libyan friend complained that they would detain a person and they would disappear, and he says that now there are 100 Qadhafis.

125.            It is speculative to suggest why those detentions take place. They could be for any one of a number of reasons or for none at all; because of the way a person looked at the militia person, disrespected him, because of suspected association with the Qadhafi regime, or because of involvement in commerce that is the militia’s area of commerce. It could also relate to accusation of (various) crimes.

126.            There is an increasing sense of impunity and popular frustration with the lack of policing progress. Violent crime has remained constant since July 2012.

127.            In cross-examination he said that there are numerous instances of violence between ethnic tribes. There have been allegations against the Tawurgans that they were allied with the Qadhafi forces. There have been prosecutions of the Tawurga. The Misrata militia took revenge against the inhabitants of Tawurga which was in effect ‘cleansed’. The former inhabitants are either in detention or have spread around Libya. That is a good example of an area perceived as a whole to have been allied with Qadhafi.

128.            There are other conflicts that are long-standing and pre-date the revolution against the Qadhafi regime. Those conflicts are specific to the region in which they occur.

129.            As regards politically motivated violence, this has become an aspect of political culture in Libya. It is a way of amplifying a grievance and calling attention to things that have been ignored by the government. The kidnapping of the Prime Minister had political overtones. He was not tortured or beaten. His glasses were broken. He went to an ophthalmologist and was back at his desk by 10 am.

130.            As to Islamist violence, there have been other attacks since those noted in his report. Jihadis also harbour a grudge against Muslims perceived to be insufficiently Muslim.

131.            Other violent incidents involve foreign governments or former high level intelligence officials, ordinary criminal violence and that involving the peaceful demonstrators in Tripoli the weekend just gone. Aside from those categories, he does not believe that there is a prospect of a counter revolution.

132.            Dr Porter agreed that there is no indiscriminate violence targeting individuals, for example in terms of bombs in market places or snipers. There has not been the indiscriminate use of violence as a political tool. The opinion in Libya is that it is Jihadi groups that were responsible for the assassinations of former intelligence officers mentioned at para 63 of his report.

133.            In relation to those sorts of attack, he was speaking to a colleague last week in relation to a ‘sticky bomb’ killing a former member of the intelligence service and there were no other casualties. It was specifically intended to kill the driver but the bomb was no bigger than necessary for that purpose.

134.            In relation to family members of former intelligence officers, the only evidence that he had seen is collateral damage. There do not appear to be any intended targets. Having said that, the daughter of Al-Senussi, Chief of Intelligence, was kidnapped in August 2013. She was released but not until the water supply to Tripoli was cut off until she was released. This was in August 2013. He is not aware of any other incidents involving family members.

135.            There are no difficulties specific to women in relation to flying from Tripoli to Benghazi apart from the usual difficulties with air travel in Libya because of delayed or cancelled flights or uncertain equipment.

136.            If a woman was travelling with her brother that would overcome the complications of a lone woman being asked more questions if travelling by bus or taxi from Tripoli to Benghazi.

137.            It is very hard to believe that an individual (from Benghazi) would have no point of contact in the capital given the intimacy and the small size of Libyan society.

138.            Up to last Thursday Tripoli airport has been a calm and safe place apart from a brief period when it was occupied for a short time.

139.            He does not know the percentage of Black Libyans in the country. It may be a difficult statistic to devise because an individual in Libya could have characteristics that are considered to be black outside Libya but not within Libya and vice versa. Many of those considered Black Libyans are working in unskilled trades but they are seen moving about in Libya. It is impossible to say without talking to someone if they are a Black Libyan or an illegal immigrant from Sub-Saharan Africa.

140.            There is a perception that they fought for Qadhafi. On the one hand there is an element of politically motivated racial persecution. Libyan society is blatantly racist. He is not able to answer as to whether black Africans are being detained on the basis of suspicion of being mercenary fighters. He was not able to answer as to whether there is (in legal terms) only discrimination or whether there is persecution against Black Libyans and Sub-Saharan Africans. He thinks there is still a belief that Sub-Saharan Africans who remained in Libya may be the remains of mercenaries who fought in Qadhafi’s army.

141.            Souq Al-Juma’a (where AT is from) is a large suburb of Tripoli and has its own militia. The areas of urban topography however blend in to one another. Up until the events of the last weekend he would not have said that coming from Souq Al-Juma’a would put a person arriving at Tripoli airport at risk. There could be recriminations from the Misrata brigade against those from Souq Al-Juma’a who had attacked them.

142.            He agreed however, that someone who had been in the UK for the last three years would not be seen as someone who had this last weekend attacked the Misrata brigade. Someone from Souq Al-Juma’a going through the airport at Tripoli would not be more at risk than someone living in Souq Al-Juma’a at present. He accepted that his assessment of risk was entirely speculative in that it is too early to make a judgement about people being subjected to harm on the basis of where they are from.

143.            In relation to checkpoints, cars could be stopped and searched on the basis that it is weapons that are being sought or anything deemed incriminating, alternatively simply as a justification for detention. It could also be a search for drugs, alcohol or other contraband items, or merely for a bribe.

144.            There was a report from Human Rights Watch which documented the detention of Tawurgans by different militia throughout Libya. He does not have knowledge of such incidents beyond what is in that report.

145.            He does not have information that today individuals are captured or detained because of past affiliation with the Qadhafi regime.

146.            In order to be able to say what is the scale in the last few months of detentions for random or unpredictable reasons, one would have to have statistics on the whole range of people detained and for what reasons.

147.            The variation in estimates in relation to the number of people detained is 40 per cent; from 5,000 to 8,000 people. There is no indication as to whether those detained are the same 5-8,000 or whether that is the number “cycling though” detention. There are no reliable statistics. Therefore there is no statistical information on the likelihood of detention.

148.            When he was recently in Libya there were many other Libyans driving. Traffic is a problem as there is a lot of traffic on Libyan roads going through the checkpoints. He agreed with the suggestion that to an extent the risk of detention is not such as to deter those people going through the checkpoints.

149.            Re-examined by Mr Ficklin he was asked whether the risk to him in travelling through the checkpoints was greater or less than for the average Libyan. He said that there are a lot of different factors that go to assessing an individual’s profile. He does not know if he was at greater or lesser risk. It may have been less as he has no ties to Libyan society. Another view is that it could have been greater. He is from a non-Muslim country that supported the campaign to overthrow Qadhafi.

150.            If a person was not able to pay a bribe at a checkpoint he suspects that such a person would be detained. If a person were to say at a checkpoint that they were a supporter of Qadhafi he agreed that there is a serious risk that such a person would be detained.

151.            If a person said that they were from Tawurga, it would depend on the militia manning the checkpoint as to whether they would be detained. One would not know what particular militia is at a checkpoint until one arrives there. Not all checkpoints carry the same risk. He and his colleague passed through five checkpoints, and his colleague said that he did not know who was manning the checkpoints as they were never stopped.

152.            There would be an increased risk to a person who was known to be a family member of a person who worked for Qadhafi’s intelligence services.

153.            As to risk to a family member of a person from a different militia, it would depend on the militia. Not all are hostile to each other; some are allied to each other. Some areas are associated with particular militias.

154.            In answer to our questions he said that he is aware of the procedures at Tripoli airport because that is where he arrived and as far as he knows everyone has to undergo the same process.

155.            As to the risk of indiscriminate violence on the streets of Libya for someone going back, the risk is relatively low. It could happen but the likelihood is about 5 per cent, certainly less than a one in ten chance.

156.            In further cross-examination he said that there is a lot of violence in Libyan society and there is no formal check on the violence. Some can be described as indiscriminate but not on a wholesale terrorist scale. He was not saying that five per cent, or one in twenty Libyans are suffering the affects of violence, which would be awfully high. This is in the realm of speculation and (an assessment) would benefit from a statistical review which he does not have.

Professor Emile Joffé

157.            Professor Joffé provided a total of 7 reports in relation to appellants AMH and HKA. They are dated, 19 August 2011, 1 September 2011, 21 March 2012, 15 August 2012, 12 September 2013, 4 October 2013, and 31 October 2013 in response to the respondent’s written questions. In so far as necessary, we summarise them in chronological order.

158.            The reports of 19 August 2011 in relation to AMH and 1 September 2011 in relation to HKA respectively, are useful background information but given the date on which they were written, at a time when Libya was in a state of civil war, do not give an up-to-date assessment of the situation in Libya relevant to these appellants, whose claims were based, to a greater or lesser extent, on their anti-Qadhafi activities. In the case of AMH the report pre-dates the hearing before the First-tier Tribunal and necessarily does not take account of the findings in relation to past persecution.

159.            The report of 19 August 2011 deals in part with the potential risk from the Qadhafi regime on account of his having taken part in anti-regime protests and on account of his being black. He describes the appellant as being a member of the Bla’za “tribe” being the major tribal group in the town of Zawiye. Other groups mentioned by AMH are often collectively known as the Zawiye, since as an urban population precise tribal affiliation has tended to be less significant. AMH is a member of the H sub-clan of the Bla’za. The appellant’s family being black, they are unlike the generally Caucasoid population of coastal Libya. His historical origins are almost certainly African and his ancestors may have been manumitted slaves who adopted the tribal identities of their former masters. Such persons are now accepted as full tribal members despite their different ethnic origins and the acute racial tensions in coastal Libya.

160.            Professor Joffé describes the legacy of uncontrolled migration from sub-Saharan Africa as one of bitter hatred of black Africans, there having been riots targeting black populations on the assumption that they were of sub-Saharan African origin. The risk to AMH in terms of his ethnicity is not on account of his tribe but on account of his being black.

161.            There is a description of the concept and introduction of the notion of collective family and tribal responsibility during the Qadhafi regime. Some groups or tribes linked to the Qadhafi regime enjoyed significant privileges. These included the Qadhadhfa (Qadhafi’s own tribe), the Maghraha from the region of Misurata and the Warfalla. These tribes had penetrated deep into the administrative and the security services as well as the army command.

162.            In relation to HKA, the report of 1 September 2011 explains the issue of Libyan nationality and dual citizenship as of the date of the report, with reference to the suggestion that she is entitled to Egyptian citizenship. Thereafter the report is identical to that of 18 August 2011, with the exception of the concluding paragraphs which deal specifically with HKA’s case based on her anti-Qadhafi activities and the security situation at that time.

163.            Professor Joffé’s report of 21 March 2012 can be described as an interim report in the sense that it post-dates the rebellion against the Qadhafi regime and describes the situation in the country at that time. At para 28, citing a report in the Guardian of 21 October 2011, he refers to militias having rounded up and imprisoned suspected “collaborators” from the former regime. He states that up to 7,000 persons are believed to be held in makeshift prisons as a result.

164.            At para 30 it states that the Misrata militia have forced out of Tawurga the black population there, setting fire to their houses to ensure that they do not return. The ostensible reason for that action is, he states, that Tawurgans were regime supporters but given the racial tensions that are widespread in coastal Tripolitania, one of the three provinces of Libya, other factors have certainly played a part.

165.            At para 31 he refers to a temporary occupation of Tripoli airport by the Souq Al-Juma’a brigade in relation to an incident in Bani Walid when several of their members died. The occupation upset the Zintan brigades that controlled the airport. In early December 2011 there were clashes between militias inside Tripoli which led to a demand by the provisional government to demand that all non-Tripoli based militias leave the capital by 20 December, a demand that was not met. There is reference to a local protest against the Zawiye militia in Bani Walid in January 2012. Para 33 describes serious clashes between two tribes at al-Kufrah in south-eastern Libya between the Arab Zawi tribe and the Tebu tribe from Chad. Such events had also happened under the Qadhafi regime.

166.            The 15 August 2012 report in relation to AMH states at para 36 that those rounded up as suspected collaborators and still detained had reduced to 5,000.

167.            The 21 March 2012 report states that remnants of the 32 ^nd Brigade, the shock troops of the former regime, accused of most of the atrocities that took place during the civil war, had reformed and were committing further abuses. The 15 August 2012 report adds that those individuals are often Tuareg.

168.            The risk to AMH is, as previously described, much to do with his assumed ethnicity, the report referring to the racism in Libya in particular in the coastal area and the recruitment by the former regime of sub-Saharan Africans and Tuareg into its special forces.

169.            The reports of 12 September 2013 and 4 October 2013 bring matters up to date. The first, prepared in relation to HKA, refers to the political situation. In relation to security, it refers to worsening violence in Tripoli and Benghazi, with security problems also in Kufrah, Jabal Nafusa, Zintan and Sabha. A number of incidents are referred to.

170.            The Misrata militia persisted in excluding the population of Tawurga because it was alleged to have supported the Qadhafi regime. The Zuwara militia victimised the Warshafanna tribe for the same reason and likewise the Zintan militia in relation to the Mashashiya.

171.            At para 20 Professor Joffé refers to the emergence of a shadowy network of salafi-jihadi militias under the generic title of Ansar al-Shari’a, which he states has nothing to do with Libya’s own jihadists of the 1990’s which was focused on destroying the Qadhafi regime. At para 21 it states that the movement is widely spread throughout Libya and has been implicated in attacks on Libya’s Sufi movements.

172.            From para 29 he refers to the worsening security situation in 2013, including in terms of a string of assassinations of intelligence, police and military officers accused of having served under the Qadhafi regime.

173.            Under the heading “Economy and Society” it is stated that it might be premature to argue that Libya is becoming a failing state. Libyans themselves are increasingly frustrated by the security crisis and pressure is mounting on the militias to accommodate the new realities. The salafi-jihadi movements also face a growing tide of popular mistrust.

174.            Day-to-day life for the majority of Libyans continued without too much disruption once the oil industry had been revived. Oil production had been back to the pre-war level and Libya had gained control of all the assets frozen in 2011. Seventy-eight per cent of the population lives in the urban conurbations around Tripoli and Benghazi but distribution (of food and consumer goods) has been maintained to the more isolated communities of the interior despite the precarious security situation there.

175.            Nevertheless, there are serious problems in that oilfield and oil protection force workers, dissatisfied with their remuneration, had shut down the oil export port of Zuetina on three occasions. Action by Cyrenaican separatists impeded oil production and export. The result was a decline in oil exports by 50 per cent in August 2013 and had further fallen by September 2013.

176.            However, Libyans are acutely aware of what they achieved in 2011 and there is a very strong feeling that they are not prepared to see those gains lost through fragmentation and chaos. The government is aware of the problems in relation to minorities and regional jealousies, and makes constant attempts to resolve them. Major managerial components of the oil sector have moved from Tripoli to Benghazi and provincial equality in the forthcoming elections for the constitutional drafting committee has been agreed.

177.            There is also a general determination for Libya to achieve a collective future which avoids the fragmentation implied in the current security chaos. Even though deep social wounds persist, the kinds of collective vengeance seen elsewhere in such circumstances has so far been avoided.

178.            Security, even at open border points is unpredictable because they are still generally controlled by militia units. Tripoli airport is controlled by the Zintan militia and Benghazi airport is the subject of an attempt by Libyan special forces to control it against constant skirmishing by Takfir wa Hirja and salafi-jihadi groups. Land border points are also open to unpredictable clashes between rival militias although some are supposed to be controlled by Libyan army special forces personnel. There is no indication of how effective such control is or whether it is undisputed by neighbouring militia units.

179.            The state is not able to provide adequate protection to its own nationals. Even though a few army units have been deployed, their authority is challenged by Libyan Shield forces. There is no effective police force outside the Supreme Security Committee units which, like Libyan Shield, are militia based. Both organisations are not under proper civilian control and both engage in arbitrary arrest and detention.

180.            As regards relocation inside Libya, Libya’s spatial population distribution plays a significant role. Libyan society is peculiarly intimate as the population is essentially compressed into a very small space of less that 5 per cent of the total land area. Personal security cannot be achieved through physical distance.

181.            In addition, Libya is in a state of administrative chaos such that it is virtually impossible to obtain documentation from the municipal or national authorities. Duplicates of the family book which is an essential document that contains birth, marriage and death certificates, are unobtainable. The family book is a vital document to ensure residence and registration through the municipality and the police, as well as an identity card and/or passport which are vital for the purposes of personal identification and without which all Libyans risk arrest. The danger is in terms of the militias who arbitrarily check identification and detain those whom they consider to lack proper documentation.

182.            The southern region of Libya was declared a closed military zone on 16 December 2012. In addition, Libyan residents are not allowed to travel to the interior or border regions (except for the borders with Tunisia or Egypt) without special permission or an official guide, under threat of prosecution.

183.            The report concludes by stating that nowhere inside Libya, except perhaps for the centre of Tripoli, is considered to be a secure environment and even there there are constant violent incidents.

184.            Professor Joffé’s last report, in relation to AMH, adds that the depth of the crisis the country faces should not be under-estimated. There is still no agreement on what the form of the new constitution should be. Moderate Islamists in the GNC will not accept the exclusion of Shar’ia law and nationalists will not tolerate its inclusion. He refers to other political divisions and potential emerging political problems. In the province of Cyrenaica and in Benghazi there is no effective police force and as a result criminal activity has exploded. The oil sector protests are as much an attempt by local families to capture control of the oil trade as they were an attempt to improve pay and conditions.

185.            Professor Joffé states that AMH will still face the intense racism that characterises Libya’s coastal society. By way of example, the 35,000 strong black population of Tawurga was dispersed throughout Libya and the city remains empty. The attitude to Libya’s ethnically black population is generalised throughout the country and similar tensions fuel the conflict at Kufrah and in Sabha between the Tibu and surrounding Arab populations.

186.            AMH would not be able to ensure his personal safety by relocating. Tawurgans are forced to live in shanty towns outside the major population centres and cannot return to their permanent homes. The transient African population has fled either back to their countries or to Europe as a result of the hostility shown towards them by Libyans because of their perceived association with the Qadhafi regime.

187.            The generalised degrading security situation makes life for despised ethnic minorities even more difficult. The state is not able to offer protection to its own nationals. There is little evidence that the Libyan authorities are going to resolve their security crisis in the near future, if at all, and there are growing fears that if the government falls there is the danger of civil war.

188.            Professor Joffé was asked by way of written questions by the respondent to supply further information on the progress of the bill treating rape as a war crime during armed conflict and requiring compensation to victims of sexual violence, and the progress of gender-equality legislation pledged by Justice Minister Salah Bashir Al-Marghani.

189.            Professor Joffé’s response is dated 31 October 2013. He states that according to his sources there has been no progress on either issue. The rape bill is only in draft form and has not been further discussed since July. He suggests that this may be because the GNC has collectively assumed that compensation for rape and sexual violence is covered by the Transitional Justice Law passed in September 2013, which covers compensation in relation to human rights violations during the liberation. The gender equality law has not progressed beyond the draft stage either and is in any case only the suggestion of a minister. He describes the GNC as being in a state of considerable disarray.

Professor Joffé-oral evidence

190.            In examination-in-chief on behalf of AMH Professor Joffé said that he was last in Libya 10 years ago but has kept in touch with events there.

191.            In relation to the number of militias in Libya, he said that the conventional answer is that there are about 350 but it depends on how militia is defined.

192.            In relation to the Political Isolation Law (barring anyone who held any position under the former regime from holding official positions), that would exclude up to half the population.

193.            The bomb blast in the marketplace on 4 August 2012 in Tripoli was a consequence of a dispute in the market. There is no question of it being directed against particular individuals. The three car bombs that exploded in Tripoli on August 19 were not directed towards individuals but were part of a general tendency (for that sort of action) during Ramadan. They were designed to cause public insecurity and anxiety and were quite indiscriminate. Although only two people were killed they were designed to cause considerable loss of life to people on the streets and around the locations of the bombs.

194.            Large numbers of people in Bani Walid, and throughout the country were employed by the former regime. It is believed that a large number of assassinations in Benghazi and Tripoli have been against opponents of the former regime. This is based on reports from local officials in Libya.

195.            Although some militias are paid by the government they have their own objectives. The position has not changed because of events over the weekend. Some units have apparently withdrawn over the last two days. This is a fairly common feature and happened in Benghazi where militias withdrew but returned after a short period of time. There is a suspicion that the Misrata militia will return even though they face opposition from the Zintan militia. Militias often have more than one objective and often become criminalised. They increasingly charge protection money as a tax at checkpoints, especially going south to Sabha, and militias being involved in smuggling operations across the Sahara. He believes that the Zintan militia are in charge at Tripoli airport.

196.            Zawiye is controlled by the Zawiye militia which has been extremely active in suppressing pro-Qadhafi activity in Bani Walid.

197.            As to what AMH could expect on return to Zawiye, having been in the UK when the uprising took place, he would face the fact that militia control movement and the way people are treated depends on how they are viewed by the militia.

198.            As a Black Libyan he would face profound racism. Particularly in the context of Zawiye he is likely to suffer considerable discrimination and persecution simply because of his ethnic origins.

199.            As to whether there are checkpoints on the way to Zawiye, it varies depending on the activities of the local militia. There are checkpoints outside the airport on the approach to Tripoli. There could be checkpoints inside the town of Zawiye. It is true that checkpoints can suddenly pop up. The incident in Tripoli last week occurred at just such a checkpoint.

200.            He had learnt this morning that the Secretary of State had resumed enforced returns to Libya. He was surprised as the Foreign and Commonwealth Office advise no travel to Libya and the objective circumstances have not altered.

201.            He is surprised that the police prevented the public protest at the destruction of Sufi shrines by Salafist groups. On the other hand he is not surprised because of the politicisation of the militias. Sufism is now regarded as something to be condemned. The police would have been very much intimidated by the militias who are heavily armed, whereas the police are not.

202.            Libya is well on the way to becoming a failing state because it is unable to contain the violence.

203.            It is difficult to determine the number of Black Libyans. He does not know how many Black Libyans who are citizens of Libya. They could amount to a third or a half of the Libyan population. They are regarded as inferior and as a source of criminality and the false sector economy. During the civil war a large part of the anger was directed towards mercenary forces who were considered to be black, including the Tuareg and sub-Saharan Africans who were said to have been responsible for the worst abuses.

204.            As regards AMH, he is not sure how people would be able to distinguish his ethnicity. Physical characteristics would not allow a distinction to be made between sub-Saharan and so-called Black Libyans. At a checkpoint he could very easily be considered to have been involved with the Qadhafi regime. It is the case therefore, that up to a third of the population are in the same position.

205.            The government does not have the means to offer any protection. There is an embryonic police force with 1,000 members. There are the remnants of an army said to number 7,000 but the retraining has not been completed. There are also prejudices that exist (which would affect whether a person could be protected)

206.            The family book contains details of the family, including dates of birth of the children, marriages and residence. It is essential information as part of the documentation process. Normally people have it as showing a right of abode. In theory people need to register with the police but at the moment that is more theory than practice. A newcomer would be noticed and the local authorities would want to know where the person came from. However, that would be with a functioning state. People are attempting to provide administration but some people also use informal principles.

207.            He is not saying that Tripoli is safe but perhaps safer than other parts of the country. Even that is rather doubtful given the events of last weekend.

208.            Tripoli has a population of about 1.3 million and including all the surrounding areas is about 2-2½ million. The same principles apply there in relation to a stranger appearing in the locality. In small neighbourhoods it would not be so easy for AMH to move in without being noticed. With his ethnicity it would be pretty obvious.

209.            It is true that there would be several hundred thousand black people in Tripoli but the population of black people tend to be settled in shanty towns and a black person would be especially obvious in the centre. Parts of Tripoli have a black community but they have the same sense of community. They do not have their own militia.

210.            In examination-in-chief on behalf of HKA, Professor Joffé said that Takfir wa Hirja (referred to at para 38 of his 12 September 2013 report on behalf of HKA) is a salafi-jihadi group created in Egypt in the 1970’s, based on the principle of withdrawal from society to develop an Islamic lifestyle and attacking the dominant lifestyle. As far as he knows there are continued skirmishes involving that group. However, there is not much information that he has come across in relation to the situation at Benghazi airport. It is controlled by Libyan special forces but who are under constant pressure from groups who previously controlled the airport and who want to get back what was a very lucrative opportunity.

211.            He is not aware of exclusive neighbourhoods that are for people from Benghazi or Tripoli

212.            In cross-examination, in relation to the issue of indiscriminate violence, he said that that issue is one of predictability which is a measure of the indiscriminate violence. An example is the events of last week when the local population were peacefully demonstrating and were fired on by militias. Those sorts of circumstances are unpredictable. It cannot be known from one moment to another whether there is going to be an incident.

213.            Professor Joffé disagreed with the suggestion that the issue is not one of predictability but an assessment of whether all Libyans are at risk of serious harm. Violence in Libya tends to be extreme. The levels of violence are far higher than they would be in a well-ordered society and are reported in an active local press. One can walk in the street and find oneself in the middle of a firefight between two different groups. That happens regularly and the population objects very strongly.

214.            The gun battle in Tripoli on 4 August referred to in his report of 4 October 2013 at para 7, started, as far as he remembers, as an argument between market sellers. Then someone set off a car bomb. He is unable to give further details as he had hitherto not been asked to provide them. As to the suggestion that a car bomb requires planning, he said that no-one was quite sure what the explosion contained. One does come across quite a few such reports of indiscriminate attacks although mostly at government targets.

215.            It is true that the unexploded bombs referred to in the same paragraph of his report tend to target either foreign people such as embassies or military and defence buildings.

216.            There have been confrontations because of the heavy handed behaviour of the Libyan Shield Force. This concerns crowd control and at checkpoints. This would provoke further incidents which would end up with shooting, although very often in the air.

217.            He is not sure of the targets of the three car bombs in Tripoli on 19 August 2012 but they were placed in such a way as to catch as many people in the street as possible. As to reports suggesting that they were meant to kill police or military forces, he does not know if that is the case but it is during Ramadan that such techniques are used. Bani Walid is now occupied by several militias and is relatively quiet.

218.            As to his evidence that the belief is that those responsible for the violence are Qadhafi supporters, it is difficult to say whether they are seeking to provoke a counter revolution to restore the former regime. People involved in the attacks are said to have been connected with the former regime.

219.            The assassinations in Benghazi are targeted which is not always the case elsewhere and there are other ways of victimising a particular group of people. There are also arbitrary arrests and detentions. The number of those assassinated, kidnapped and imprisoned in Libya amounts to about 10,000. The conventional number of those said to be held in prisons is about 7,000 people but no-one really knows. That is not a massive number but is a significant number when one considers the population of Libya which is about 5.6 million people. That is enough for people to feel very insecure as a result.

220.            Nearly all the arrests were in the first six months to a year after the conflict. There is no effective judicial procedure and a lot have been in detention ever since. As to whether the population of those imprisoned is therefore fairly constant he said that because these are private prisons no-one can really tell. It is also quite common for people to be kidnapped for ransom which adds to the insecurity. He could have provided more evidence of violence incidents (had he been asked).

221.            In relation to demonstrators being met with gunfire in June in Benghazi and last weekend, those are two dramatic incidents but there have been other demonstrations that have been dispersed and people shot at at checkpoints.

222.            Black Libyans such as AMH do not exactly suffer the same fate as the Tawurgans but Black Libyans are thought to have been supportive of the Qadhafi regime so they would suffer as the Tawurgans do. There is also discrimination.

223.            As to whether the experience of the Tawurgans can be generalised to include all Black Libyans, they are symbolic of Black Libyans. Tawurga was targeted because it was believed that they supported the Qadhafi regime, and some did. There were reports of organised rapes by Tawurgans in Misrata and the Misrata militia sought revenge on all Tawurgans who were forced out of Tawurga. They are displaced across Libya. He does not agree that the experience of the Tawurgans cannot be generalised to include all Black Libyans. Most, if not all, Qadhafi’s mercenary forces were assumed to be black, to have been supportive of Qadhafi and are persecuted, including the Tibu. Tawurgans were a special case of this as were the Tuareg. It is a generalised phenomenon to do with colour.

224.            In terms of whether large scale arrests of Black Libyans and sub-Saharan Africans ceased in 2012, they have either all been arrested or have been displaced. Sub-Saharan Africans do remain at risk of being charged with illegal entry, and of supporting the Qadhafi regime.

225.            Professor Joffé was asked about an Amnesty International report of June 2013 stating that a number of migrants are flowing back into the country to work. He said that he could not comment on whether they were coming back to work. Libya is heavily reliant on those migrant workers. It is possible that migrant flows into Libya have resumed. It is not necessarily the case that if they were being persecuted there would be reports of it. It depends on the extent of the reporting outside the capital.

226.            It does not strike him as odd that AMH claimed that there were only two black families in Zawiye. He is not able to make any judgement as to whether or not that is true but the dislike of blacks in Zawiye is very intense. He took from AMH’s witness statement that there were only two black families in Zawiye. He read it as being in relation to the whole of Zawiye.

227.            He is not saying that Tripoli airport is unsafe to pass through; people do so regularly. In so far as it is militarily controlled the issue is one of unpredictability. Benghazi airport is more unsafe because of the struggle for control of it.

228.            In relation to the family book, there is no greater risk in this regard for people returning from the UK.

229.            So far as the travel restrictions to the south of the country are concerned, generally speaking the area is shut off but a person returning home if resident in that area would probably be given permission to travel there. The area of the travel restriction was marked on a map.

230.            There are restrictions in terms of internal relocation by reason of the way in which individual towns are now governed. Misrata will not let people in. Derna is a well known Islamist stronghold. The oil area of Sirt is restricted because of the oil industry. There are a lot of territories in Libya that are difficult to access. Zawiye is a provincial capital in its own right.

231.            He is aware that a number of airlines serve Tripoli airport. Air Malta flies there every day and BA four times a week. With BA the majority of the flights are in relation to contracts. That tells him that the Libyan government is trying to revive the economy.

232.            It is possible, depending on the case, that a person could use tribal affiliations in order to relocate. Asked to comment on evidence given by Dr Porter that it was hard to believe that someone would not have contacts in Tripoli, he said that this would depend on many things including the extent to which the person had used those links over their lifetime.

233.            It is probably reasonable to suppose that many people given the current circumstances are unable to find or have lost their family book.

234.            In re-examination he said that there is an artificial calm in Bani Walid because the militias are hostile to the population, as in Sirt. Arrests have continued since the conflict. He does not think that things have moved on in relation to Black Libyans but the situation is not the same as it was a year or two ago.

235.            ENI, a major Italian oil conglomerate, has moved out of Libya and BP suspended operations at the time of the conflict and they have not resumed.

SUBMISSIONS

Submissions on behalf of the Respondent

1.                    Throughout Mr Palmer’s submissions we were referred to various aspects of the Respondent’s skeleton argument. In relation to Article 15(c), taking as a starting point the position of an ‘ordinary’ Libyan, we were referred to the decisions in Elgafagi and QD (Iran).

2.                    Mr Palmer submitted that Dr George’s evidence was to the effect that there was no longer an active conflict. It was true, however, that there were areas where there were higher levels of violence, for example Benghazi where there are targeted assassinations of security forces and outside government buildings. Dr George said that he would be happy to visit Zawiye, Tripoli and Misrata, as well as Benghazi, although in respect of the latter he would be more cautious. His view was consistent with that of Dr Porter. It was clear that indiscriminate violence was not being used as a political tool, there being no bombings of market places or random firing at civilians by snipers.

3.                    Professor Joffé’s emphasis was different, focussing on predictability, but such violence is always unpredictable. The question to be asked is how frequent are the violent incidents and over what areas. There was no evidence of such high levels of violence in any part of Libya. We were further referred to the written expert evidence from all three experts.

4.                    There may be particular features of an individual where the risk would be elevated, albeit that not everyone would be at risk. This is described as a sliding scale. No such factors are apparent in the cases of any of the appellants.

5.                    We were referred to the “taxonomy” of violence as described in the report of Dr Porter. The first category is of confrontations between different ethnic groups or groups from different regions. The expert evidence was to the effect that incidents of such violence, as in Kuffra and Bani Walid, could flare up again. However, if the question is asked as to whether there is now indiscriminate violence in terms of Article 15(c), the answer is no.

6.                    In terms of the second category of violence (politically motivated violence), these are not incidents in which particular individuals are targeted but there have been casualties. This relates to Tripoli and Benghazi. Again, it is accepted that there may be further incidents of the same kind in the future. However, there are no individual characteristics which would increase that risk. Although there have been bombs outside police offices, and police officers may be more at risk if they are guarding such places, that would not be relevant to anyone returning from the UK.

7.                    The third category of Islamist violence, submitted Mr Palmer, does establish that former high level officers in Qadhafi’s intelligence services are at high risk of being targeted but the evidence establishes that those attacks are sophisticated and carefully planned. Dr Porter had referred to sophisticated car bombs which are not intended to injure anyone else. The same can be said in relation to the targeted shootings.

8.                    In the forth category are general crimes of violence, more evident in Benghazi than in Tripoli. However, it is not indiscriminate violence and there is no suggestion that any particular categories are at greater risk on the sliding scale.

9.                    In relation to the fifth category of violence (targeted assassinations and bombings) Mr Joffé was less certain that such incidents were necessarily so ‘targeted’.

10.                Category six (recent attacks on peaceful protestors/demonstrators), it was suggested, was the closest that could be argued in terms of indiscriminate violence but the risk is not a generalised risk, such incidents occurring on discrete occasions. There was no reason to believe that any particular category of person was at risk. It is possible that in future there may be similar demonstrations and it is possible that the militias will respond in a similar way but the risks will be known to those who want to participate in such demonstrations, and those who do not participate would not be at risk in that regard.

11.                Article 15(c) risk has not therefore been established.

12.                Dealing with potential risk categories under the Refugee Convention, referring to the skeleton argument at [25]-[27], there is no risk to failed asylum seekers and such an individual would not be seen as having pro-Qadhafi sentiments. The evidence of Dr Porter supported that view. It was not uncommon for Libyans to have been abroad and they would not invite suspicion on return, according to the evidence of Dr Porter.

13.                Turning to the individual appeals, Mr Palmer submitted that that was sufficient to dispose of the appeal in relation to AT who could not therefore claim to be at risk as a failed asylum seeker and would not be at risk in relation to Article 15(c). The same applies in relation to AE-S and HKA.

14.                So far as women are concerned, there is discrimination and harassment and there may be suspicion in relation to a woman travelling alone. However, the evidence does not support the claim that a woman in those circumstances would be subjected to persecution. Paragraph 3.11 of the OGN refers to the situation for women who have been raped who may be at greater risk of discrimination but this is not raised as an issue by HKA. In any event, that was not a matter that is at the forefront of the Secretary of State’s case although the experts were asked for written responses to questions in relation to the anti-rape law.

15.                HKA would not be travelling alone. She would be travelling with her brother. The evidence was that flights from Tripoli to Benghazi are cheap and with $50 being provided to returnees. There is other general assistance available. Dr Porter also gave evidence that people could travel via inter city taxi.

16.                As set out in the skeleton argument at [30] in relation to perceived Qadhafi supporters, the May 2013 OGN and the other evidence supported the view that they may be at risk on return. It is not suggested that there has been any change in that regard since May 2013. However, it is not accepted that anyone associated with perceived supporters would be at risk. According to the evidence of Professor Joffé, up to 70% of the population worked for the Qadhafi regime, a point also made by Dr Porter. Including family members therefore, would mean that the vast majority of the population were associated with the regime. There is one reported incident of a family member, the daughter of Abdullah Al-Senussi, being kidnapped but then released without having been harmed.

17.                The possibility of “collateral risk” to a family member from a targeted attack cannot be ruled out, but the evidence is that individuals are carefully targeted. The risk in this respect is speculative. There is no guarantee of safety but such a guarantee is not required.

18.                There is evidence of many still remaining in the detention of the militias but there is not now in existence the same campaign to apprehend Qadhafi supporters or perceived supporters as there was at the end of the campaign against the regime.

19.                There is a distinction to be made between Tawurgans and ‘Black Libyans’. There is no question of Tawurgans being able to return to Tawurga; they would be physically prevented from doing so, the town having been destroyed and being empty. Any Tawurgan returned to Libya would be internally displaced. Dr George’s evidence was that Tawurgans were not being hunted down. Many would be living in shanty towns on the periphery of major settlements. However, they may be expected to face risks at checkpoints if found to be a Tawurgan, particularly if it is a checkpoint manned by the Misrata militia.

20.                The objective and expert evidence does not support the contention that all Black Libyans would be at risk of persecution on the grounds of ethnicity. It would be going too far to say that all Tawurgans would be at risk. They are internally displaced and do live in Libya, although in many individual cases the risk would be established. However, there may be cases where a Tawurgan has very good links in Tripoli. Others who have further afield to travel may encounter the Misrata militia at a checkpoint. It cannot be excluded that such a person may be detained.

21.                The hypothetical exceptions to that risk may be rare. Almost all Tawurgans would be in need of (international) protection but there is a need to consider the individual circumstances as per the OGN. One could not go so far as to say that all Tawurgans are at risk but it may be difficult to find individual cases where such a person may not be at risk.

22.                There is no dispute but that Black Libyans have been the victims of racism and discrimination; all the experts agree on that. Libya could be described as a racist society. The question is whether that discrimination reaches the threshold of persecution. Although the findings of the First-tier Tribunal in relation to the discrimination that AMH suffered are to be borne in mind, it is also the case that he has been in work, has received an education and was able to have a family life. He lived in Zawiye and it was only when he left that the family moved to outside Zawiye where his parents lived. The conclusion of the First-tier Tribunal that he has suffered discrimination but not persecution is defensible.

23.                There is no doubt that during the war a real issue was the general perception that Qadhafi’s forces were bolstered by African forces from other countries but that perception is now known to have been overstated. Mercenaries were used but not to the extent that had been supposed. The perception did lead to sweeping arrests of anyone perceived to be a Qadhafi supporter or fighter. The evidence does show that Black Libyans and sub-Saharan Africans were subjected to torture. We were referred to some of the background material on this issue. The Qawalish were also suspected to have been Qadhafi supporters and the Mashashiya also suffered.

24.                The Tribunal is not directly concerned with Sub-Saharan Africans being returned to Libya. There is, however, a distinction made in the background evidence between Libyan and foreign nationals. The expert evidence was that an individual would be able to explain where they were from and their accent would also give an indication. The evidence does not show that Black Libyans are now being rounded up and arrested on the basis that they were mercenaries. One could not go so far as to say that if a person were not from Mashashiya or Tawurga then that person would not be at risk, given that the entire communities were at risk from specific militia for specific reasons.

25.                The position of foreign workers was precarious and there was an outflow of those workers but they are returning. That does not indicate that they are not at risk of racism but it is an indication of change since 2011. There is no suggestion that black people generally are being detained. Such detentions are specific to foreign workers who are not entitled to be in Libya. The country would not be a ‘magnet’ destination, however, if the fate of those coming into the country would be persecution. Dr George said in evidence that it was an overstatement to say that Black Libyans were being detained as suspected Qadhafi fighters. He said that it was not a serious or real risk but said that there is a potential risk when such an individual is confronted at a checkpoint by someone who he described as a 17 year old with a Kalashnikov.

26.                Dr Porter said that Black Libyans are to be found moving around, mostly doing unskilled jobs. He did also refer however to the representative of OPEC in Libya being black. He did not have evidence of black people being detained on the basis of being suspected of having been a mercenary for Qadhafi. If there was such evidence one would have expected Dr Porter to have heard about it.

27.                Professor Joffé alone put the matter higher, suggesting that Black Libyans were at risk of persecution. He referred to the experiences of the Tawurgans but also the Warshfanna, who are not in fact black. When asked whether he was generalising the position of Tawurgans in terms of black people he gave a variety of answers but agreed that he was generalising. His evidence would have to be weighed against that of Dr George and Dr Porter and the recent background evidence.

28.                Professor Joffé’s expertise is not in issue but his evidence did show a tendency to generalise more widely than the other evidence disclosed. A particularly striking example was his willingness to understand AMH’s evidence that there were only two black families in Zawiye, out of a population of 291,000. AMH himself had not made that claim about only two black families; he said in his witness statement that this was in his neighbourhood. Dr Porter, unlike Professor Joffé, had visited Zawiye in the last few months and had seen evidence of black people there. Dr George did not except Zawiye from the population of black people. Two experts had been to Zawiye and had a different perception of the level of risk, especially for Black Libyans.

29.                Dr Porter gave evidence of the “possibility” of detention for unexplained reasons, for example a perceived insult if one is not from the same territory as the militia. However, he gave evidence of the level of traffic that passes through checkpoints and that traffic is actually a problem. The day-to-day experience of Libyans is that there is a mere possibility of detention but not a real risk, which does not reach the level of seriousness required.

30.                Souq Al-Juma’a is where AT comes from. People from certain districts in Tripoli may be thought to have more association with Qadhafi than people from other districts, but the risk to such a person was speculative.

31.                The evidence is that the airport is safe and there are no reported concerns in relation to passengers arriving there. There are regular flights to Tripoli by BA and Al-Italia. People wishing to travel to Benghazi could go there by air, bus or taxi. Zawiye is a short distance away. Special permission is needed to travel to the southern zones but the evidence was that this would not prevent someone who was from that area returning there.

32.                The table of returns since 2011 shows the numbers of forced removals of Libyans although it does not show what their destinations were, not necessarily showing enforced removals to Libya. There is no detail in the table of the actual destinations or onward destinations. In any event, that table is of no weight in terms of the issues, it having been produced only because the issue of returns was raised.

33.                It is accepted that there is no national police force to investigate and detect crime and no nationally effective judiciary. However, to say that there is “no effective judiciary” is an overstatement. There is a judiciary which is independent. However, each case (where this is an issue) has to be assessed on an individual basis. Someone from Misrata will enjoy the protection of the Misrata militia. Dr Porter said that a person can ally with a particular militia and he described them as highly disciplined and hierarchical structures. They have ‘secured the government contract’ to supply policing services and that is what the militias are there to do. It is the case, however, that there is sometimes conflict with other communities. There is not a sufficiency of protection everywhere but again each case is fact specific.

34.                Internal relocation would not be available for those in the main risk categories, for example former high level intelligence officers and Tawurgans. For others, however, who face a threat in the local area, relocation to Tripoli for example would not in ordinary circumstances be unduly harsh.

35.                Professor Joffé gave evidence that someone who is isolated would find it very hard to relocate and find employment but the other experts presented a more nuanced picture. Dr George thought that it would be possible to establish networks. There is a spectrum. Generally, people live within families but tribal affiliation can also be relevant. Dr Porter, it was submitted, was the most realistic of all in his evidence in that he said that with reference to Tripoli he would find it very hard to believe that an individual would have no contacts at all there given the small size and intimacy of Libyan society.

36.                AMH’s case is a good example in that he has family and extended family in Libya. He has a brother in Tripoli, two brothers and a sister in Zawiye, with uncles and aunts in Tripoli, Zawiye and Zuwara. There is no reason to think that his situation is particularly unusual. There are many people living in Tripoli who are from Benghazi and vice versa.

37.                The evidence in relation to the family book does not apply in any differential way to asylum seekers (from the UK). The issue is the same for all Libyans and the evidence is that it would not be unusual for many Libyans to be in the situation of not having a family book given the country’s circumstances.

38.                Although AMH’s evidence is that he does not think that it is safe for black people in Libya, that perception overstates matters. He is from Zawiye and is not in a risk category. He is able to return there or relocate to Tripoli, as his brother did in 2009.

39.                There are credibility issues in terms of his evidence that he has not had contact with his parents, wife and children since August 2011. In his second witness statement in 2012 he said that he called them two weeks prior to the hearing before the First-tier Tribunal. In that call he said that the family had decided to escape. Since then he had not been able to contact them and their phone is not being answered. It was not credible that he would not have informed the First-tier judge of the content of that call in terms of their deciding to escape. It was a matter that was similarly not referred to in the grounds seeking permission to appeal against the decision of the First-tier Tribunal. The notes of the evidence at that hearing indicate that he said that his family were still there and the grounds of application for permission to appeal also reflect that evidence. His evidence in this respect was an embellishment. It is not accepted that there was a lack of contact.

40.                AMH would have been very anxious to find out what had happened to his family but he has not given an account of any determined effort to contact anyone in Libya. He said that for some of them he had no phone numbers but they have his number. The tracing request through the Red Cross was not made until March and has not vigorously been pursued. Subsequent appointments with the Red Cross had not been made or kept.

41.                AMH said that his friend had called him and said that there had been an attack on the family at the end of January 2012. The family was still in the house in August 2012 and the question arises as to why there was no attempt to contact them, or ask his friend H to visit the house. In relation to his wife’s family he said that he was thinking about contacting them and this had caused him to be diabetic, but that does not explain why he has made no effort to make contact.

42.                His friend had had telephone contact with his brother. He had a brother in Egypt who is said to have been famous in Libya but apparently not in Egypt. The most striking evidence of fabrication is his account in relation to his friend H who it seems gives an account at just the right time of people being arrested because the appellant had phoned them rather than because they had been demonstrating.

43.                In any event, his evidence is that he is a well known opponent of the Qadhafi regime and he and his brother are leading lights locally in terms of opposing the regime. He would therefore be well known in the area for that reason and would not be at risk of being suspected as a supporter of Qadhafi.

44.                In answer to a question from the Tribunal, Mr Palmer submitted that the evidence does not show that there would be risk to an opponent of the Qadhafi regime by any resurgent pro-Qadhafi group. Dr Porter said there was no prospect of any such group carrying out a rearguard action. Professor Joffé said that there may be revenge attacks against ‘turncoat’ soldiers but the other experts were of the view that the Islamists were responsible for such attacks.

45.                As to other ethnic groups, the Tuareg and Tibu had already been referred to. It was not suggested that there was any persecution of the Berbers who are well represented in Parliament, and had indeed occupied the Parliament building on one occasion. It is true to say however, there had been discrimination of the Berbers under Qadhafi.

Submissions on behalf of AT

46.                Mr Ficklin accepted that the information provided by Mr Palmer revealed that there were enforced removals of Libyans when it was thought that at the time there were none.

47.                In relation to Article 15(c), Mr Ficklin said that he had no instructions to and did not concede that issue but he would not be making submissions on it.

48.                The GNC is a nominal government and is not in charge. Who is in charge depends on the local situation. The GNC is only able to exert authority to the extent that various militias are willing to exert their authority as a proxy for the GNC. They exert their authority to further their own interests. At times these overlap those of the GNC, for example in relation to undertaking airport security.

49.                In relation to detentions, these involve a real risk of serious harm especially at the early stages of detention by militias. Even in government controlled facilities there is a risk. Reference was made to the OGN and other background material in relation to torture and the types of detention facilities. The number detained by militias is uncertain with figures of between 5,000-10,000 being given but these figures are nothing other than a guess. It is not even known how many detention facilities there are. Dr Porter’s evidence was that there are further detentions taking place.

50.                There is evidence of the abduction of Qadhafi supporters and of pure criminality, as well as the protection by militias of their business activities, in relation to arrests of Qadhafi supporters and their family members but the numbers are not known.

51.                Although it has been suggested on behalf of the respondent that the militias keep the peace and may be able to provide sufficiency of protection, if it results in detention that raises the risk of serious harm. There is no sufficiency of protection. There are many examples of new detentions for non-political reasons and where people have died in custody. In answer to a point we raised, Mr Ficklin said that it could not be acceptable for non-state actors who breach human rights to be the actors of protection. Even the quasi-legitimate functions of the militias raise a real risk of a violation of an individual’s human rights.

52.                There is evidence in the UN report of new detentions of those thought to support the Qadhafi regime and their family members. It has never been suggested that anyone who had a government job would be at risk, for example “a bin man”. In cases of family, however, they would be collectively identified as a family of supporters. Black Libyans were not targeted because they were supporters or mercenaries but because there were black people who were. This is the same as it is for Tawurgans and Mashashyans. Collective identity is a feature of Libyan society.

53.                Although there are targeted attacks against former intelligence officers, the UN report also refers to attacks on family members. It is also to be noted that it is said to be difficult to find lawyers to represent individuals who are former Qadhafi loyalists which is another example of collective identity. The expert evidence was that in the case of Tawurgans and Mashashyans, collective identity would take precedence over personal factors which would require investigation and proof, but in Libya none is needed for detention. There may be cases where an individual with “immutable characteristics” would be at risk at a checkpoint.

54.                For the most part there would be no such thing as anonymous relocation. There may be exceptions for those who do not depend on networks. However, those networks may still communicate the fact of someone new coming into an area. Someone without a network would be even more unusual. If such a person is at risk in the home area, relocation even to Tripoli would not be possible. That, however, does not apply in the case of AT.

55.                Although recent events in Tripoli are relevant, for example in terms of militia having been told to leave an area, the evidence is that the militia leave an area and then simply return.

Submissions on behalf of AMH

56.                Ms Patel referred us to various aspects of the background evidence, AMH’s witness statement and her skeleton argument. The appellant's father was in the army for 30 years and his brother moved to Tripoli. Black H are the weakest group, he says, and Zawiye was not a safe place for his family. Zawiye is now under the control of the Zawiye militia. The appellant's account is consistent with the background evidence of what was happening in that area.

57.                AMH did mention to the First-tier Tribunal the phone call from his wife. His evidence that his family had decided to leave is in his witness statement. The evidence was that at the time he left his wife and children with his family. In the phone call he had said in evidence to the First-tier Tribunal that his wife appeared scared and that the call only lasted about five minutes. He had said that communications had been cut off. He had tried to ring them every day.

58.                The appellant’s witness, NS, gave evidence to the First-tier Tribunal that the appellant would be at risk because of his colour and would be perceived to be part of the forces that supported the regime. The evidence was not clear on the numbers of black families in the area. Because no-one could tell where a black person is from, that would put him at risk. There was evidence from another witness who was not called before the First-tier Tribunal because he had left the country. In cross-examination (before the Upper Tribunal) the appellant had said that he did not have the details of his brother. We were referred to the findings of the First-tier judge in terms of the positive credibility findings.

59.                At the time of the hearing before the First-tier Tribunal the appellant was a refugee and is still a refugee. The evidence at the time of the First-tier hearing is the starting point.

60.                There is evidence of recent efforts to trace his family in the letters from the Red Cross and in his oral evidence. Although there were no further letters from the Red Cross, his evidence is that he kept seeing the Red Cross worker and asking about progress. Although it is said that he had embellished his account, that would not make the whole account incredible.

61.                The only expert that had been to Zawiye is Dr Porter, in August. He also went to Tripoli and Misrata. Dr George had only been to Tripoli and Misrata last year. Dr Porter said that he was able to pass through the checkpoints as he was a foreign national from the US, a country that had helped to get rid of Qadhafi. Although it is true that he was not stopped at a checkpoint, he is white and was waived through. Although it is not far from Tripoli to Zawiye, the number of checkpoints is not certain and they are sometimes set up at short notice.

62.                The evidence from Dr George is that there are about 1,700 militias, as is background evidence from the BBC, although the numbers are not certain. In oral evidence Professor Joffé said that there were about 350. At least it could be said that there are in excess of 350. The evidence is that these militias at checkpoints are unpredictable. If stopped, as a Black Libyan AMH would be asked questions and his family background would be established. The evidence accepted by the First-tier judge is that his father worked for 30 years in the army. His brother is also very religious and well known in Zawiye. The question is would they believe that he was not a Tawurgan? The evidence is that Tawurgans and Sub-Saharan Africans are targeted.

63.                Even if it is thought that there is not enough evidence that all Black Libyans are at risk, the evidence does establish a risk in his case. Dr Porter said that there was no indication of how the militias would behave at a checkpoint. If he was not able to pay a bribe, the evidence is that that would lead to detention which would then lead to a breach of Article 3 or even 2 as people are known to have died in custody.

64.                Although on behalf of the respondent it was sought to isolate the violence to specific areas, it cannot be looked at in that fragmented way. All experts agreed that Libya was an inherently racist country. Although there was evidence from Drs George and Porter of Black Libyans going about their business, Dr Porter was not asked how many Black Libyans he saw or what their background was. The fact that they go about their business does not mean that they are not persecuted. Severe discrimination on a cumulative basis can equate to persecution.

65.                In relation to internal relocation, the evidence from Professor Joffé was that south Libya is out of bounds for all Libyans. For the appellant therefore, the options are Benghazi or Tripoli. He would, however, need to register with the police and there is the question of the family book which gives access to benefits and accommodation. There is also the harshness of relocation given the evidence of shanty towns on the outskirts of the city. The militia would be targeting these areas. It is true that there is no evidence as to whether the appellant has a family book. The matter was not put to him.

66.                AMH does have a brother in Tripoli and a sister. Mr Palmer reminded us of the evidence in relation to other relatives the appellant has in Tripoli, Zawiye and Zuwara. Ms Patel reminded us of the appellant's evidence that since the conflict he has had no contact with those relatives.

67.                So far as the evidence of enforced returns is concerned, the numbers are very low. It is hard to understand why no statistics are available as to the number of Black Libyans returned when bio-data is obtained when someone claims asylum. However, it was not suggested that anything underhand was going on in terms of the lack of statistics. It could not be assumed, however, that any Black Libyans had been returned. It was accepted that the highest it could be put in this respect on behalf of the appellant is that it is possible for the information to have been collated but it has not been.

68.                Although it is said that a returnee is met by a representative of the airline, that does not mean that it would not be a militia member. Returns are not monitored so if something had happened to a returnee it is not clear that one would have heard.

69.                Since 2011 the government in Tripoli have wanted militias out of the city. They move out and then move back in. That is the pattern in Benghazi as well.

70.                Ms Patel stated that she did not intend to make any (further) submissions in relation to Article 15(c) and it was a matter for the Tribunal.

Submissions on behalf of HKA and AE-S

71.                Ms Harrison relied on her skeleton argument and endorsed the submissions made on behalf of the other appellants. HKA and AE-S would need to make arrangements to travel from Tripoli to Benghazi. The evidence is that Benghazi is worse in terms of security than Tripoli. We were referred to the report of Dr Porter at [42] and at [45] in relation to checkpoints and how easy or otherwise it is to navigate through them.

72.                These two appellants without contacts going into a new territory may be asked for a bribe and detentions are arbitrary with the situation at checkpoints being extremely unpredictable. Although HKA would be returned with her brother, there is background evidence in the consolidated bundle at page 233 of two women who were with a male chaperone being arbitrarily detained, although they were then released.

73.                It may be necessary to distinguish between a lone female and one accompanied, as explained in Dr Porter’s report at [67]. In his oral evidence he said that a single woman trying to rent property or to reserve a hotel room could be suspected of being a prostitute. We were reminded of his oral evidence in relation to the potential problems faced by women moving from place to place, although he said that it would not necessarily be dangerous for a female travelling alone.

74.                HKA had given details in her witness statement of her family, that information being consistent with the screening interview. There is no evidence as to whether she has a family book, although she travelled with her passport which it was said is part of the compendium of information in the family book.

75.                In relation to Article 15(c), Ms Harrison adopted the same position as the representatives for the other appellants.

Further submissions on behalf of the respondent

76.                We sought clarification from Mr Palmer in relation to whether it could be said that there are “Actors of Protection” in Libya, with reference to the Refugee or Person in Need of International Protection Regulations 2006 (“the 2006 Regulations”). Mr Palmer referred to reg. 4(2) submitting that it was not necessary for each of the matters set out there to be in place before it could be found that protection can be provided. The question is one of fact. We were referred to the decisions in Horvath and Bagdanavicius which emphasise practicality and effectiveness. It was not accepted that reg. 4(2) establishes a set of legal hurdles.

77.                In these appeals it is not submitted on behalf of the respondent that the question of the effectiveness of protection is dispositive of the outcomes, neither have the appellants. Their arguments relate to risk categories. It was not, however, suggested that the same militias who present a risk to an individual could provide the protection to that person.

78.                In other cases, for example a blood feud, the question of how effective the protection of the militias would be was not put to the experts and no evidence was advanced on the issue.

79.                Even if reg. 4(2) does set out legal requirements that must be met, on the facts here they would be. Militias have taken over policing and there is some form of a judicial system, albeit not national in effect. It was accepted that on a national basis there is no judicial oversight of the militias. There are some courts operating Dr George said, although again not on a nationwide basis. The issue as to in what areas that is the case was not explored in evidence.

Further submissions on behalf of AT

MAP OF LIBYA

THE BACKGROUND EVIDENCE

1.                    Although some aspects of the background evidence are more easily categorised as relating to a discrete issue than others, we have sought to avoid an artificial separation of the background evidence by category. The fact that we have summarised the evidence with reference to broad categories does not suggest that any such category is to be isolated from contributing to the overall landscape of assessment. Our summary has regard to the issues that are to be determined in these appeals.

General assessment

2.                    The Country of Origin Information report (“COI”) dated 19 December 2012, at 4.01, quoting The Encyclopaedia Britannica in its chapter “Libya Revolt of 2011” states that the National Transitional Council (“TNC”) struggled to establish a functional government and exert its authority in the months following the fall of the Qadhafi regime. The report refers at 4.02 to the elections of July 2012. According to the Secretary General’s Special Representative and head of the UN Support Mission in Libya (“UNSMIL”), election observers from the African Union, the European Union and the Carter Centre had made positive preliminary statements praising Libya’s High Election Commission, for its transparency and flexibility in the face of security threats in Eastern parts of the country. At 4.04 an article from The Economist is quoted as referring to the relative failure of the Islamists in the election. At 4.05 the handover of power from the NTC to the General National Congress (“GNC”) on 8 August 2012 is described.

3.                    Ali Zidan was elected as Prime Minister in October 2012, the previous prime minister having been dismissed a week earlier for failing to form a government. There were protests against some of the ministerial nominations who are said to have had links with the former regime. The Libyan national assembly building was stormed by protestors, the events “being a reminder of the volatility still plaguing Libya” a year after the fall of Qadhafi, according to a Reuters report dated 1 November 2012 (COI 4.06-4.07).

4.                    At 4.08, a Libya Herald article dated 16 November 2011 is quoted, noting that several ministers had been disbarred from holding public office by the Integrity Commission. The process of vetting is said to have been condemned by Human Rights Watch. There follows a long list of categories of those banned from holding public office on account of various activities or enrichment under the previous regime.

5.                    At 4.09 there is a description of attacks on Sufi shrines by Salafists in September 2012 and previous weeks, with neither the Ministry of the Interior nor the police intervening. The article from The Economist suggests that this may indicate the influence of the extreme Islamists or the weakness of the government and its security forces. The same article describes a disquieting aspect of the new Libya being the ability of local militias, especially in, for example Misrata and Zintan, to ignore the writ of the government. Tribal and ethnic tensions for example in southern cities such as Sebha and Kufra continue to provoke periodic outbreaks of violence.

6.                    The attack on the US Consulate in Benghazi in September 2012 killed the US ambassador and three other Americans. The extract from a BBC news report states that the US believes that Islamist armed groups used a protest against a film produced in the US as cover for the attack and a Telegraph article describes the possible involvement of Al-Qaeda (4.10-4.11).

7.                    At 4.12-4.13 the UN news service and Human Rights Watch (“HRW”) reports on fighting in Bani Walid in September and October 2012 are referred to. The former refers to “growing civilian casualties due to indiscriminate shelling”. Libyan army forces are said to have launched a full scale assault against the town, accusing it of being controlled by Qadhafi supporters. The small city of Bani Walid is said to have been one of the last to fall to rebel groups and to be a centre for regime loyalists and criminal gangs. HRW reported that the number of victims from the fighting “and indiscriminate shelling” remained unclear. Doctors at the hospital said that at least seven people not associated with any armed group had been killed and 60 wounded. “That number” rose as the major assault by attacking forces began on October 18 with thousands of residents fleeing. The Libyan official news agency reported that at least 22 people had been killed.

8.                    The HRW report describes Bani Walid as being home to Libya’s largest tribe, the Warfalla with many considering the town as pro-Qadhafi. One militia from the Warfalla fought against Qadhafi and in 1993 a group of Warfalla were among those who staged a failed coup against Qadhafi. The officials in Bani Walid have said that they are loyal to the new government but refused to surrender those wanted for crimes before or during the 2011 conflict until Libya has a functioning judicial system and hundreds of Warfalla held without charge are released from detention, especially in Misrata.

9.                    The US State Department report for 2012 dated 19 April 2013 (“USSDR”) reports that some human rights abuses continued most frequently where the elected government did not control militias. The government lacked the capacity and basic legal framework to protect civil and judicial rights fully. With regard to the courts there is a lack of enforcement capability, lack of competency and confusion over the applicability of the old and new laws. The most significant human rights problems resulted from the absence of effective justice and security institutions. The new government fell short of establishing a consistent rule of law.

10.        The USSDR continues that :

“Other important human rights abuses included: arbitrary and unlawful killings, including politically motivated killings by groups outside government control; kidnappings; torture and other cruel, inhuman, or degrading treatment or punishment; harsh and life-threatening conditions in detention and prison facilities, some of which were illegal; arbitrary arrest and detention; lengthy pretrial detention; denial of fair public trial; an ineffective judicial system staffed by intimidated judicial authorities; arbitrary interference with privacy and home; use of excessive force and other abuses in internal conflicts; localized restrictions on humanitarian aid to civilians; limits on the freedoms of speech and press, including violence and harassment of journalists on several occasions and in certain areas; restrictions on freedom of religion; abuses of internally displaced persons (IDPs), refugees, and migrants; social discrimination against and societal abuse of women and ethnic and racial minorities, including foreign workers; legal and social discrimination based on sexual orientation; trafficking in persons; killings related to societal violence; and breaches of labor rights in practice, including forced labor.”

11.                Further, in relation to accountability, the effectiveness of the judiciary and security it is stated that:

“Impunity was a serious problem. Although militias detained abusive Qadhafi-era officials, the scarcely functioning criminal courts struggled to try them, and when they did attempt to conduct trials, judges often faced threats of violence. In the same vein, with the judiciary not fully functioning, the government had not taken concrete steps by year’s end to advance transitional justice. There were rarely investigations and still fewer prosecutions of those believed to have committed abuses.

With the disappearance of the authoritarian Qadhafi regime, militias that spearheaded his overthrow filled a security vacuum in many parts of the country. During the year militias and their supporters--at times nominally but not fully under the control of the interim and later the elected government’s authority--violated human rights and humanitarian norms, committing unlawful killings, physical violence, and other abuses. Hostility to real and perceived Qadhafi loyalists permeated the country, the principal targets of which were actual or suspected former Qadhafi soldiers or supporters. Nongovernmental actors, including autonomous militias and armed tribal groups, committed human rights abuses. Disappearances, illegal detentions, and imprisonment of persons on political grounds occurred, as did looting and further violence. Vulnerable civilian populations, including ethnic minorities and migrants, faced ongoing violence and discrimination.”

12.                Particular targets of arbitrary and unlawful killings were real or suspected Qadhafi supporters, Qadhafi soldiers, possible sub-Saharan mercenaries, dark-skinned Libyans, former members of the security forces, as well as foreign diplomats.

13.                Page 3 of the USSDR reports that there were at least 21 killings in Benghazi alone of current and former security officials, many of them defectors from the Qadhafi regime.

Militias/detentions

14.                An example of the human rights abuses that are said to have been committed by militias is that reported by the UN Support Mission in Libya, at page 5 of the USSDR: three detainees died on 13 April as a direct result of torture, and at least seven other persons were tortured in the Zaroug detention facility in Misrata. The Supreme Security Committee (“SSC”) which was under the control of the Ministry of the Interior, controlled the facility. The USSDR continues that:

“Treatment varied from facility to facility and was typically worst at the time of arrest. Reported abuses included beatings with belts, sticks, rifles, and hoses; administration of electric shocks; burns inflicted by boiling water, heated metal, or cigarettes; mock executions; suspension from metal bars; and rape. Abuses against detainees, particularly alleged Qadhafi loyalists and sub-Saharan Africans aligned with Qadhafi, were similarly reported at other militia-run facilities throughout the country.”

15.                According to a report by the UN Secretary General’s special representative for Libya, on 10 May 2012 there were approximately 3,000 people held in 31 Justice Ministry facilities and approximately 4,000 held by various militia groups at formal or secret detention facilities. At year’s end the ICRC estimated that several thousand persons remained detained with the greatest concentration of detainees being in greater Tripoli, Misrata and Benghazi. The vast majority were Libyans accused of fighting for the Qadhafi regime. The other main category was foreigners of which a majority appeared to be irregular migrants.

16.                As to the types of informal detention facility and the conditions within them:

“makeshift facilities appeared throughout the country to accommodate detainees collected by all sides. These facilities’ conditions were uneven and varied widely, but consistent problems included overcrowding, poor ventilation, the lack of necessities such as mattresses, and poor access to hygiene and health care. Militias reportedly detained persons at schools, former government military sites, and other informal venues, including private homes and, in one case, a soccer club. Many prisons and detention centers were outside of central government control, and the conditions in some prisons and detention centers were harsh to the point of being life threatening. Access to food in Ministry of Justice prisons was generally adequate, although access to potable water was a critical problem in Joodayem, Salah Aldeen, and Dafniya prisons.

Men and women were reportedly held separately. In some instances minors were held in Ministry of Justice prisons with adults. Human rights organizations reported that militias also held minors with adults.

Administration: Information about the administration of prisons and detention centers was generally not available due to the lack of government control and improvised solutions that were required to accommodate the large increase of detainees in the course of the revolution. There was no information on adequacy of recordkeeping, alternative sentencing practices, permission for religious observances, investigation of allegations of inhumane conditions, or access to visitors. There was no credible ombudsman for prisoners and detainees.”

17.                On page 15 of the USSDR, in relation to freedom of movement it states that on 16 December 2012 the GNC voted to declare much of the southern part of the country a “closed military zone”. With the ending of the conflict some militias and government forces imposed barriers to movement by setting up checkpoints in areas that remained strongholds for Qadhafi loyalists, such as Bani Walid, Sirte, Tawargha and other locations.

18.                The Report of the Secretary-General on the United Nations Support Mission in Libya dated 5 September 2013 refers at para 20 to a decision by the GNC in March 2013 instructing the Ministries of Defence and Interior to remove from Tripoli all “illegitimate armed formations”, and ensure transfer to the army of all illegal arms and military equipment in the city. “Notwithstanding broad public support for the decision, its implementation has proven to be quite difficult, partly owing to the conflicting political and regional agendas on the part of the various brigades. “

19.                At para 21 there is reference to clashes between Zintan brigades affiliated with the Ministry of Defence and others affiliated with Tripoli’s Supreme Security Committee. The two-day clashes left at least 10 dead, and on 27 June, the Minister of Defence, Mohammad al-Bargathi, was dismissed. “The restoration of a fragile calm to the city’s streets was interrupted by the remote detonation of four car bombs on 16 July.”

20.                With reference to eastern Libya, the report states at para 23 that Benghazi and other parts of eastern Libya witnessed mounting opposition to the revolutionary brigades, especially those referred to as Libya Shield. A demonstration outside the barracks of one such brigade resulted in an exchange of fire between protestors and the brigade, resulting in 30 people being killed. It goes on to refer at para 26 to “a discernible campaign” of assassinations targeting members of the security forces in eastern Libya.

21.                The security situation in southern Libya is said in the report to remain mostly fragile despite government efforts. There was a spate of security incidents including armed attacks on 30 March on the security directorate in Sabha and a military base in the region and three car bombs in downtown Sabha on 26 June resulting in four deaths.

22.                Para 38 suggests that the overall number of “conflict-related” detainees remains at around 8,000, the majority of whom are held in facilities nominally under the authority of the ministries of justice and defence. There was no significant advancement in the judicial screening of detainees, partly because of the limited enforcement power of the prosecutors and their reluctance to act through fear of reprisal. The safety of judicial personnel remained a serious concern, with several attacks on judges and prosecutors recorded. A high-level judge was assassinated outside the courthouse in Derna on 16 June and there were bomb attacks on courthouses in Sirte and Benghazi in July.

23.                The treatment of detainees remained a serious concern, with evidence of torture and other forms of ill-treatment, and conditions of detention in a number of facilities, especially those holding illegal migrants under the authority of the Ministry of the Interior remained unacceptable.

24.                Regarding the judiciary and prisons, at para 45 it is stated that except for senior members of the Qadhafi regime, the resumption of criminal trials remains slow, owing to security problems. Para 47 refers to prison breaks, including the escape of 1,400 inmates from a prison in Benghazi following a riot.

25.                The OGN for May 2013, states at 3.13.14 in relation to prison conditions that:

“Prison and detention centre conditions in Libya are very poor; overcrowding, lengthy pre-trial incarceration, torture and deaths in custody are particular problems. The Libyan authorities have yet to gain authority over the hundreds of militias currently holding several thousand detainees outside any legal jurisdiction.”

26.                At 3.13.15 it states that:

“There is evidence of security personnel and members of militia groups acting with impunity with regard to inhuman and degrading treatment. Reports indicate that those perceived to have been pro-Gaddafi loyalists, and those perceived to have been working or fighting on his behalf, particularly those of African ethnicity are at particular risk of ill treatment. In such cases the risk of mistreatment will be sufficient to make removal a breach of Article 3.”

27.                Finally, it is said at 3.13.16 that w here applicants can demonstrate a real risk of imprisonment on return to Libya, a grant of Humanitarian Protection is likely to be appropriate, going on to conclude as follows:

“However, the individual factors of each case should be considered to determine whether detention will cause a particular individual in his particular circumstances to suffer treatment contrary to Article 3. Relevant factors include the likely type of detention facility, the reasons for detention, with particular regard to the individual‘s political profile, and the individual‘s age, gender, ethnicity and state of health.”

28.                In its summary of the report “Torture and deaths in detention in Libya” the United Nations Support Mission in Libya (“UNSMIL”), dated October 2013, states that:

“Torture and other ill-treatment in Libya is an on-going and widespread concern in many detention centres, despite the efforts of the Libyan authorities which are committed at the highest level to ending torture and to ensuring the proper functioning of the criminal justice system.”

29.                Since 2012, the report states, the government has sought to bring under the authority of the state the armed brigades which are in control of most of the detention facilities where torture takes place. In April 2013 Libya adopted a law criminalising torture, enforced disappearance and discrimination. A new law in September 2013 requires all conflict-related detainees to be released or referred to the public prosecutor within 90 days of the promulgation of the law. Nevertheless the report states, torture continues and is most frequent immediately on arrest and during the first days of interrogation as a means to extract confessions or other information. Detainees are usually held “without access to lawyers and occasional access to families, if any.” The vast majority of the estimated 8,000 conflict-related detainees are held without due process.

30.                From late 2011 UNSMIL has recorded 27 deaths in custody where there is significant information to suggest that torture was the cause. There are other cases which it has not been able to investigate. Eleven of the 27 cases took place in 2013 in detention centres under the nominal authority of the Government, but effectively under the control of armed brigades.

31.                As to the number of conflict-related detainees, on page 4 of the report it is said that the 8,000 estimate is a figure that has remained fairly constant since the declaration of the liberation in October 2011. Accurate figures, including in relation to the detaining agency, are not available. The report describes at pages 4-5 the range of detention facilities, from those under the authority of the state, specifically the Judicial Police or Military Police, for example prisons, those fully or partially under the authority of armed brigades brought within various government ministries, to those run entirely by armed brigades with no formal connection to any State institution and no control by the government.

32.                Vetting of brigade members integrated in State institutions such as the Judicial or Military Police has been minimal or non-existent.

33.                On page 6 it states that those arrested include individuals suspected of having fought on the side of or of having supported Qadhafi’s regime, “and their family members”. Some have been detained apparently on the basis of belonging to certain tribal or ethnic groups, including Warfalla, Tawurga and Mashashiya “as these groups are collectively perceived by some as having supported the former regime”. It goes on to state that given the arbitrary nature of the arrests and lack of judicial oversight “cases of personal score-settling are not uncommon”.

34.                The Ministry of Justice reported in September 2013 that of the estimated 8,000 conflict-related detainees, 4,000 are under the custody of the Judicial Police, with the remainder being held by the Military Police under the Ministry of Defence, by the SSC and the Combating Crime Department (composed mostly of armed brigades operating under the Ministry of the Interior) and by armed brigades not affiliated to any Ministry. Around 2,700 are in some seven detention facilities in Misrata.

35.                As to the number of detention facilities, reliable figures are not available, although there are 37 under the authority of the Ministry of Justice as at September 2013.

36.                A report in the Libya Herald dated 13 September 2013 describes SSC commander, Abdel Rauf Kara, as estimating that he has some 700 men under his command at his base at Mitiga airbase. There are seven or eight units and their numbers can be swelled to around 10,000 if reserves are called in. He stated that the members of the SSC come not only from Souq Al-Juma’a but from all over Tripoli, and outside Tripoli. The report describes him as the most powerful thuwar leader in the capital after Hashim Bashir, the commander of the city’s SSC.

37.                Kara is reported as stating that there is no trust between the thuwar (who make up the SSC) and the government because of the latter’s tendency to appoint persons associated with the old regime. That the thuwar have not en masse joined the police or the army is because the government is considered suspect.

38.                Kara is also reported as having stated that he does not condemn everyone who worked for the Qadhafi regime, stating that they have relatives and friends who used to work in it but they were not involved in any bloodshed, or did not steal any public money. Whether they are affiliated with the Interior Ministry or the army, all SSC units are paid by the government, and all other expenditures are met by donations, stating that people donate money to them “to maintain security and to provide protection.” He accepted that on occasions he acted independently of the Ministries because sometimes he has to take decisions when “no one will be willing to instruct you” in relation to taking responsibility for protecting people and institutions.

39.                In a further Libyan Herald report of 10 June 2013 he is quoted as accepting that the SSC when created did include drug dealers, smugglers and former prisoners under Qadhafi, and that some people who perpetrate crimes are also members of the SSC: “You would consider the SSC as a mix of sheikhs, students and graduates from prison!”. He stated, however, that it played a key role in providing security in the capital.

40.                A report by Amnesty International (“AI”) dated July 2012 entitled “Libya: Rule of Law or Rule of Militias” (and based on a visit to Libya in May and June 2012) describes in its introduction the detention and torture of two women aged 27 and 32 by militia at a checkpoint in February 2012, accused of supporting the former regime. In describing the abuses committed by militias the report states that they recklessly use machine-guns, mortars and other weapons during tribal and territorial conflicts “killing and maiming bystanders”. It continues, stating that militias continue to seize people albeit on a significantly reduced scale.

41.                The report in its introduction states that UNSMIL estimated that about 4,000 people were held outside of government control in mid May 2012, but “recent” estimates in the report are said to put the number at about 7,000. The transitional government is said to have made some progress in bringing prisons under the oversight of the relevant ministries. Treatment in places of detention is said in the report to improve for longer term detainees although new arrivals continue to suffer abuse. Detainees are particularly vulnerable to revenge beatings and vigilante-style justice when held by victims or relatives of victims of human rights violations by Qadhafi forces or when held in cities where they allegedly committed the violations.

42.                Progress in charging detainees with recognisable criminal offences is said to have been extremely slow, with some detainees being held for a year without charge. With rare exceptions they are interrogated without lawyers. To AI’s knowledge, by early June 2012 only three trials had begun in civilian courts in relation to crimes committed in the context of the conflict.

43.                On page 10 of this AI report it refers to public criticism of the revolutionaries being uncommon. Outspoken individuals faced threats and intimidation “entrenching the climate of self-censorship” (quoted in the OGN at 3.10.6).

44.                In a report by Amnesty International (“AI”) dated July 2012 entitled “Libya: Rule of Law or Rule of Militias” (and based on a visit to Libya in May and June 2012) reference is made to the Tawurga and the estimated population of about 30,000 having been driven out by Misrata militias, those former inhabitants being scattered across Libya, including in poorly resourced camps in Tripoli and Benghazi. The Mashashiya community from the areas of Awaniya, Zawiyat al-Bajoul and Omer in the Nafousa Mountains are said in the report to face a similar plight at the hands of Zintan militias. Not only are such communities barred from going home, they also face arbitrary arrest and other reprisals.

45.                Foreign nationals “in an irregular situation”, particularly those from sub-Saharan Africa are said to remain at risk of abuse. Although they are no longer being arrested on a large scale on suspicion of being foreign mercenaries, they are still being routinely rounded up from their homes, or seized at checkpoints or from the streets by armed militias. Their crime is to have entered the country illegally. They are held indefinitely in detention facilities under the control of militias in poor conditions without any possibility of challenging the legality of their detention. Some have complained of beatings, in some cases amounting to torture. Further on at section 3 the report refers to both recent arrivals and those who have lived in Libya for many years being seized, and including both men and women.

46.                Tensions and fighting in the remote south-eastern city of Kufra are described from page 47 of the report. The city is home to a black minority community, the Tabu, who are also present elsewhere in Libya as well as in Chad and Niger. Animosities between the Tabu and the majority Arab Zwaii tribe predate the 2011 uprising against Qadhafi. The Tabu complained about discriminatory policies and practice during the Qadhafi era. The majority Arab population of Kufra complained about the involvement of non-Libyan Tabu in violence and other lawless behaviour. Tabus joined anti-Qadhafi forces during the uprising. A local Tabu leader briefly served as Kufra’s representative on the NTC before resigning in October 2011 in protest against what he said was continued marginalisation and discrimination against the Tabu.

47.                Kufra’s residents are said to have borne the brunt of the resulting armed confrontations, which also included Libya Shield forces. Among those killed were individuals not involved in the fighting, including women, children and unarmed men. Both sides are said to have fired recklessly and inherently indiscriminate weapons such as mortars are said to have been used. There has been displacement of families from both groups as a result of the fighting and both sides seized captives who were ill-treated. A short report in Maghrebia.com refers to further conflict in Kufra in June 2012.

48.                In Sabha tensions between Arab and Tabu communities also led to violence in late March 2012. Bystanders and the local population were affected. The violence is said to have lasted six days and left 81 people dead. Tabu students at Sabha University reported that they had been harassed by Arab militia, had their rooms raided, their belongings taken, and were detained and tortured. A number of individual examples are described. An AI report of 23 April 2012 refers to 150 deaths and 350 injured.

49.                Tabu militias are said to have been responsible for the deaths of civilians, arbitrary arrests and torture when they attacked the city of Traghen, about 120 km from Sabha in October 2011. There were claims that remnants of the Qadhafi government were in hiding there.

50.                Conflict in Bani Walid is the subject of an AI report dated October 2012. The GNC had authorised the Ministries of Interior and Defence to use force to arrest suspects, including those said to have been responsible for the alleged torture and killing of the Misratan Omran Shaaban, one of those credited with having captured Colonel Qadhafi on 20 October 2011. Since then members of the Libyan army, Libya Shield forces and militias from around the country including Misrata, had surrounded Bani Walid and clashes occurred on the outskirts of the city. Three residents of the city are said to have been killed. There are said to have been long-standing tensions between Bani Walid and Misrata.

51.                A BBC news report dated 9 June 2013 refers to the resignation of the Libyan army Chief of Staff after 30 people died in clashes between protestors and militia in Benghazi. Protestors had gathered outside the Libya Shield Brigade’s premises, demanding that it disband. Tens of thousands are said to have taken to the streets in 2012 in Benghazi to eject a number of armed groups that were blamed for continuing lawlessness in the city.

52.                Al Jazeera reported on 25 August 2013 on clashes in Zawiye between members of the Wershifana tribal group and residents of the town. Four people are said to have been killed and several wounded.

53.                On 8 November 2013 Reuters reported on clashes between rival militias in Tripoli, in which anti-aircraft guns and grenades were used. At least one person is said to have been killed and 12 wounded, although al-Arabiya television reported two killed and 21 wounded. The gunfire is said to have caused diners to run for cover and drivers to abandon their cars. Guests in one of Tripoli’s best hotels, the Radisson Blu, were evacuated after windows in the reception area were broken by stray gunfire.

54.                A Reuters report dated 8 November 2013 refers to fighting by rival militias in Tripoli describing it as a four hour battle with anti-aircraft guns and grenades, and as “the worst fighting for months in the Libyan capital”. At least one person was killed and 12 wounded. It is said to have been the second outbreak of street fighting within days.

Particular ethnic groups, dark-skinned Libyans and Sub-Saharan Africans

55.                The USSDR report states that although significant numbers of Libyans had returned to their places of origin, there were still 65,000 IDP’s. Most Tawurgans had not returned to Tawurga by the end of 2012. Return of the inhabitants is impossible without systematic reconstruction and security efforts. There was no effective government programme to assist IDP’s or facilitate their return and their needs were largely met through international humanitarian assistance. IDP’s were vulnerable to abuses, such as armed attacks, arbitrary detention, trafficking, forced labour, and gender-based violence, from militia forces or other armed groups not under the control of the transitional governments.

56.                IDP’s from tribes and cities known to be loyal to the Qadhafi government, including the Tawurga, Qawalish, and Mashashiya, additionally faced harassment, violence, intimidation, and discrimination. Militias in Misrata arbitrarily detained hundreds of Tawarghan IDP’s, including women and children, and transferred them to detention in nearby Misrata, where human rights groups reported serious mistreatment and torture. Dark-skinned Libyans were particularly vulnerable to harassment and abuse by militia forces.

57.                Concerning the protection of refugees and access to asylum, the report on page 17 states that while the flow of persons across the border continued throughout the conflict, there were reports that hundreds to thousands of sub-Saharan Africans entered the country illegally, aided by the porous nature of the country’s southern borders. Treatment of migrants depended upon their country of origin and the offence for which they were being held (some were held for having improper documents and others for having committed other crimes). There was no consistent protocol for determining whether foreigners were to be sent to migrant detention facilities or to criminal detention facilities. The waiting time for deportation to home countries was also uneven, with some individuals returned after three months and others waiting a year or more.

58.                On page 17 of the USSDR it states that detention of sub-Saharan African refugees and migrants increased significantly after the fall of the Qadhafi government, when revolutionary forces detained thousands of sub-Saharan Africans on suspicion that they supported the Qadhafi regime or were complicit in abuses during the conflict. While the interim governments and affiliated militias subsequently released several thousand detainees, estimates of sub-Saharans detained in scattered detention sites at the end of 2012 ranged from 1,500 to 2,500. The UNHCR, ICRC, International Organization for Migration (IOM), HRW, and other organizations were able to access many detention sites and informal detention facilities run by militias to provide basic assistance, including sanitation and health care, refugee registration, and counselling. Most detainees were not officially charged and had no access to review and judicial processes. Those with potential refugee claims had no access to refugee status determination procedures.

59.                On page 24 of the USSDR it states that:

“There was societal discrimination and violence originating in ethnic differences. Racial discrimination existed against dark-skinned Libyans, including those of originally sub-Saharan descent, in part due to allegations that Qadhafi used African mercenaries during the conflict. There were reports of dark-skinned Libyans as well as Tuaregs being removed from their homes in Tripoli and held in detention centers and prisons.

There was also societal discrimination and violence originating in attitudes toward the previous regime. For example, fighting began April 1, reportedly involving heavy weapons, between the largely Amazigh and anti-Qadhafi western town of Zuwara, on one side, and the mostly Arab and pro-Qadhafi towns of Al-Jimail and Regdalin on the other.

There were also clashes reflecting a conflict between Tebou and Zway tribes over smuggling rivalries in the southeast of the country. On March 26, Arab government-affiliated militia clashed with Tebou tribal groups in the region near Kufra. According to reports from local contacts and NGOs, the fighting was largely one sided and targeted at Tebou civilian neighborhoods in attempt to push Libyan Tebou out of the country into Chad. On April 21, the conflict had escalated to the point that government forces were sent to Kufra to restore order.”

60.                The AI report of 16 February 2012 entitled “Militias Threaten Hope for New Libya” states that a challenge for the new regime is to tackle “the widespread discrimination and xenophobia against sub-Saharan Africans and dark-skinned Libyans from Tawargha and other parts of Libya where support for al-Gaddafi forces during the conflict was reportedly high.” The forcible displacement of the residents of Tawurga is referred to and that thousands of people have been evicted or fled their homes in the Nafusa Mountains (mainly those from the Mashashiya and Qawalish tribes), as well as in Sirte and Bani Walid “and remain targeted by militias because of their alleged support for al-Gadaffi forces during the conflict.”

61.                On page 11 (as copied in the bundle) of the same report, in relation to Tawurgans, it states that:

“People from the Tawargha area, who are black Libyans, are at particular risk of reprisals and revenge attacks by Misratah militias, because the area was a base for al-Gaddafi troops when they were besieging Misratah and because many Tawargha allegedly supported al-Gaddafi forces during the conflict. The number of Tawargha people among the detainees appears disproportionately high and most of those interviewed by Amnesty International said they had been tortured or ill-treated.”

And on page 12 in relation to the Mashashiya that:

“Members of the Mshashiya and from Qawalish tribes in the Nafusa Mountain area have similarly been targeted by militias because of their alleged support for al-Gaddafi forces during the conflict. People from the Mshashiya tribe and Qawalish village are particularly targeted by militias from Zintan.”

In relation to detainees from Sub-Saharan Africa it states that:

“People from sub-Saharan Africa who have been detained by militias have been particularly vulnerable to abuse. While many Sub-Saharan Africans were detained during and in the weeks after the conflict because of the belief that al-Gaddafi forces used African mercenaries to fight pro-NTC forces, many are now being held because of their suspected “illegal” status or related issues. When Amnesty International delegates visited Ain Zara Prison in January 2012, about 400 out of approximately 900 detainees were foreign nationals, mainly from Sub-Saharan Africa. According to the prison administration, about 10 per cent of the foreign nationals were accused of having fought during the conflict. Several Sub-Saharan Africans interviewed by Amnesty International in detention and after release said they had been tortured or ill-treated.”

62.                Specifically in relation to Zawiye, the same AI report describes the town as one that saw violent confrontations between supporters of the uprising and Qadhafi forces and where revenge attacks and reprisals by local militia have taken place against those who are known to have or are suspected of having supported the former regime.

63.                The OGN of May 2013 in relation to particular categories of persons states that Tawurgans and the Mashashiya are vulnerable to arrest by the Misrata and Zintan militias, as suspected supporters of Qadhafi and of having committed crimes during the conflict (3.10.4). At 3.10.5, referring to Amnesty International reports it states that militias take persons suspected of having supported Qadhafi forces and committed crimes during the conflict captive from the streets or at checkpoints. Easily identifiable targets, such as black Tawurgans or Sub-Saharan African nationals, are particularly vulnerable to such practices, severely impeding their freedom of movement. Displaced Tawurgans have been subjected to arbitrary arrest and torture in detention.

64.                Paras 3.12.1-3.12.32 consider ethnic groups stating that the principal minorities were Amazigh, Tuareg and Tebou. Although under Qadhafi the Amazigh faced discrimination, including limitations on the use of their language, by the end of 2012 they used their language publicly, publishing journals and using their language Tamazight on public signs and on the radio. They encouraged the government to make Tamazight one of the official languages.

65.                Racial discrimination existed against dark-skinned Libyans, including those originally of sub-Saharan descent, in part due to allegations that Qadhafi used African mercenaries during the conflict. There were reports of dark-skinned Libyans as well as Tuaregs being removed from their homes in Tripoli and held in detention centres and prisons.

66.                Allegations that mercenaries were recruited from Chad, Nigeria and Sudan appeared to be heavily exaggerated. Many Africans worked in civilian jobs. There have been reports of harassment and violence towards sub-Saharan African migrant workers, by rebel fighters and civilians. HRW reported that Africans were held in overcrowded cells with appalling hygiene standards and no access to clean drinking water. Many sub-Saharan Africans have been displaced by the fighting and for fear of reprisals. Many noted with horror how revolutionary brigades had exacted revenge against largely unarmed Mashashiya and Tawurga, two communities that had largely backed Qadhafi in the conflict.

67.                Thousands of non-Arabs, like Tuaregs, have no official documentation attesting to their citizenship. The main proof of citizenship is the “family booklet” in which all members of the family are listed and which is presented when applying for jobs, university, or when taking out a loan from a bank. Tuaregs who have been in Libya “for 100 years” have managed to obtain a family booklet but those who settled in the country 40 or 50 years ago were denied one and possess neither Libya nor any other citizenship (3.12.10).

68.                Many Tawurga have moved to Benghazi, Tripoli or southern Libya. They remain displaced and live in camps and with host families, though some are held in detention. “The generally dark-skinned Tawurga” were accused by the brigades of siding with Qadhafi and of killing and raping residents of Misrata during the revolution. According to community groups, about 18,000 Tawurgans are in Benghazi, 13,000 in Tripoli and 7,000 in and around Sebha in the south. There are smaller numbers in other places. In Tripoli they are mostly based in four camps: at the Naval Academy in Janzur, and in the al-Fallah and Sarraj neighbourhoods. Basic humanitarian assistance comes mostly from LibAid, a Libyan government agency. Security has improved, with fewer raids by the Misrata militias who claim they are searching for wanted men. In January 2012 militias from Misrata raided the Janzur camp and shot dead a man, three women and three children (3.12.15-3.12-16).

69.                At 3.12.17 it states that about 1,300 Tawurgans are detained, missing or dead according to HRW which also said that crimes committed against the Tawurga may amount to crimes against humanity.

70.                Para 3.12.23 refers to members of the Tebu and Tuareg communities having long complained about discrimination, racism and the inability to renew identity documents or obtain new ones for their children. Such communities also tend to be among the poorest and live in informal settlements with little access to services.

71.                The Tuareg number some 100,000. Some opposed Qadhafi while others found employment in the regular army. Many Libyans tend to identify all Tuareg as regime supporters. At least 1,500 Tuareg fighters joined Qadhafi’s loyalist forces. Sources inside the Libyan city of Ghadames told a news agency that the Tuareg tribes have been subjected to ethnic cleansing for the previous eight months since May 2012, the Ghadames tribe apparently being responsible. Many Tuareg are said to have been detained in illegal places of detention in secret locations in inhumane conditions. They are said to be being searched for everywhere, including in hospitals, to be killed and tortured. As of January 2013, 2,400 who had fled Ghadames remained internally displaced in Libya (3.12.24-3.12.27).

INDEX OF COUNTRY MATERIALS