The Upper Tribunal is today hearing the appeal of a Libyan asylum seeker who fears that he will be at risk of being killed or seriously injured if returned to Libya.
The threat that he fears does not come from the government or any specific militia operating in the country.
He is also not claiming that he will be persecuted because of his race, religion, nationality or political opinion.
This man’s claim is based on the fact that there is now such a high level of indiscriminate violence in Libya that anyone, solely by being present there, faces a risk which will threaten his life or person.
Returning him to Libya would breach something called Article 15(c) of Council Directive 2004/83/EC, governing how asylum seekers are treated by EU states.
The case will become the new Country Guidance case for all future Libyan asylum claims regarding this point.
The last Country Guidance of this nature in relation to Libya (called ‘AT and Others’) was published in July 2014 although the Tribunal heard the evidence in that case in November 2013.
In that case, the Upper Tribunal determined that the levels of violence in Libya at that time were not so high to lead to a breach of Article 15(c).
Those familiar with Libyan asylum claims will share my frustration that despite the rapidly developing and fluid situation in Libya and the escalation of the civil war that has ravaged the country, the Home Office has continued to rely on the old Country Guidance case, which had become obsolete before it was even published.
Every appeal has involved a battle to persuade the Tribunal that the situation has moved on considerably since AT and Others.
The current situation is that there are three rival administrations vying for power in Libya.
- The UN-backed Government of National Accord (GNA) in Tripoli which was created following a political agreement in December 2015
- The National Salvation Government (NSG), also based in Tripoli
- The elected House of Representatives (HOR) in Tobruk (in the East) and its interim Government based in al-Baida
Until very recently, the city of Sirte had been under the control of ISIL.
Both the GNA and NSG are supported by numerous rival militias while the HOR’s armed forces is led by the US-backed General Khalifa Haftar.
General Haftar has been responsible for a brutal onslaught in Benghazi which has seen the city razed to the ground with hundreds of thousands displaced.
Over 2000 rival militias operate with impunity throughout the country, abducting, torturing and killing civilians.
In addition to this, the UN Office for the Coordination of Humanitarian Affairs has estimated that 1.3 million people in Libya are in need of humanitarian assistance.
The World Health Organisation has reported that the health-care system in Libya is on the brink of collapse as a result of the conflict.
All of this has been taking place over the past three years although the Home Office and Tribunal Service (with notable exceptions) have continued to blindly follow the obsolete guidance issued in AT and Others.
I recall one particularly bizarre moment last year when the Home Office Presenting Officer relied on the Tribunal’s findings in AT and Others to argue that my client would not be at risk of being detained and questioned upon arrival at Tripoli International Airport.
I had to point out to the judge that Tripoli International Airport had been closed for two years having been almost obliterated during heavy fighting between rival militias in July 2014.
It remains closed today.
This deliberate refusal to assess a claim in light of the reality on the ground underlines the inherent problems with AT and Others.
The Upper Tribunal will now examine the situation in Libya afresh to decide whether the levels of violence plaguing the country are so high as to make it too dangerous to return anyone there.
Let’s hope it makes the right decision for the safety of all Libyans.
The Appellant is being represented by the indefatigable Adam Pipe from No.8 Chambers, who is instructed by my former colleagues at Duncan Lewis’ Birmingham office – Mohammed Nadeem and Javeria Ijaz.
The hearing will take place on 3 and 4 May 2017 at the Upper Tribunal (Immigration and Asylum Chamber), Field House, 15-25 Breams Building, London EC4A 1DZ.
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