Nearly 3 years after the end of the civil war in Libya that swept away the Qadhafi regime and its associated country guidance, and after nearly 8 months of deliberation, the Upper Tribunal has decided that Libya isn’t so bad after all, at least for men. The determination of AT and Others (Article 15c; risk categories) (CG) [2014] UKUT 318 (IAC) runs to 261 paragraphs plus 8 appendices, and the tribunal is to be commended for its lucid treatment of a huge amount of evidence, delay (and some conclusions) notwithstanding. The hearing itself was notable for taking live videolink evidence from a country expert in New York City.

The determination stresses the need for fact-sensitive, case-by-case consideration of risks. This nuance has been unsurprisingly ignored by the Home Office, which began detaining Libyans immediately after the case was promulgated.

Perhaps surprisingly considering the rest of the determination, the tribunal finds that

…in broad terms significant parts of the country could be said to be in a state of armed conflict. (110)

However, the tribunal rejects the contention that the risks of indiscriminate violence reach the threshold of Article 15(c) of the Qualification Directive, or of Article 3 of the European Convention on Human Rights. It is worth noting that this ground of appeal was raised by appellant AT in June of 2011, when the war raged and NATO bombs still fell on Tripoli.

The country guidance is consolidated at paragraph 215 and runs to 24 sub-paragraphs over 4 pages. While finding that the level of violence in Libya does not cross the Article 15(c) threshold, there are found to be risks in Libya for

• former high-ranking intelligence officers or others close to the Qadhafi regime;
• Tawurgans, Tuareg and Mashashiyans; and
• women who are of African ethnicity or who were victims of sexual violence during the war, or who otherwise are at risk of so-called ‘honour’ crimes.

Further, it would be extremely difficult for a lone woman to return to Libya without either a family home or other source of refuge to protect her from a Libyan society that has grown increasingly conservative since the civil war.

Further, there may be risks due to association with a particular militia because there is a tendency toward collective identification in Libya; the friend of an enemy is also an enemy. But this depends on the opportunity for relocation which is usually available because militias generally have geographically-limited operational reach, sometimes extending only to a few city blocks of Tripoli or a small section of coastal highway.

While there is deep, endemic racism against black Libyans there is no per se risk of persecution for them. However, being a black Libyan is still an important factor; the appellant AMH is not Tawurgan or Tuareg, but he was the only appellant to succeed on the basis of his family history of support for the former regime coupled with the public antipathy and suspicion toward black Libyans. Bear in mind that who is a “black Libyan” is a matter of perception that is not solely based on skin colour but is tied up with perceptions of support for the Qadhafi regime [147-173].

Despite finding that travellers in Libya will almost inevitably be stopped sooner or later at militia checkpoints likely to be manned by “an uneducated teenager with a Kalashnikov”, the UT is relaxed about internal travel:

…we are able to conclude on the evidence before us that a claim to international protection is unlikely to succeed simply on the basis of the risk of travel to any particular area of Libya… [211].

The determination, despite acknowledging that Libya is a diverse place and that the most common type of association is to family and community [90], concludes that the risk factors are surprisingly consistent across the country. Put simply, if a Libyan falls into the risk categories at paragraph 215, they cannot internally relocate. While acknowledging that there may be localised risk factors for some individuals [85] there is nothing preventing travel and therefore internal relocation is available in most of the country, at least for men. Lone women may internally relocate only if they have a “close family or other connection, aside from merely a tribal connection” (102). Not insignificantly, The UT acknowledges that as in HH (Somalia), a risk arising along the route of return to a safe area (for example from a hostile militia at checkpoints or an airport) entitles the applicant to international protection (87). However, there is nothing in the determination about the unlawful rejection of protection claims while there was manifestly a risk along the route of return (not to mention the no-fly zone until October 2011) between at least March 2011 and June 2013.

The determination is impressively detailed. To its credit, the tribunal at least engages with the question of whether the militias can be both actors of protection and agents of persecution with reference to Article 7 of the Qualification Directive at paragraphs 50-56. The determination does not go so far as to answer this question, however. Can the militias lawfully provide a sufficiency of protection if a prerequisite is to “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” when the militias themselves are the source of the risk? It was submitted that they could not; implicitly the tribunal accepts that the militias can play both roles in Libya.

After accepting that the militias can be both persecutor and protector, the second question is whether they provide an effective legal system. However, despite reciting evidence that the criminal justice and judicial systems in Libya seem only to function in isolated, usually high-profile cases (and not always even then), the UT finds that in general there is enough of a legal system to provide a sufficiency of protection. [57-76] With respect it is difficult to understand the distinction regarding sufficiency of protection between those at risk from the militias due to identified factors, and those who are not. The direct and indirect risks to Libyans are not exclusively dependent upon individual factors (ie political or non-political nature of allegations) of a detainee, and the militias maintain the peace (as it were) without reference to any law save their own.

It is regrettable that the first post-Qadhafi country guidance took so long to arrive. Libya’s political and security situations remain volatile and transient, and since the case was heard in November 2013 there have been a number of incidents that further illustrate how precariously the balance of power hangs, such as the seizure of oil ports in the East of the country. The tribunal is clear that there are no barriers to returning to Libya for those not found to be personally at risk, despite the militias’ power struggles over the airport. Removals on this basis will have to wait, however; on 13 July Tripoli airport was closed yet again after coming under attack.

Jared Ficklin of Garden Court North Chambers appeared for AT, instructed by Broudie Jackson Canter.

Interested in refugee law? You might like Colin's book, imaginatively called "Refugee Law" and published by Bristol University Press.

Communicating important legal concepts in an approachable way, this is an essential guide for students, lawyers and non-specialists alike.

Buy now