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Cite as: [2002] UKIAT 07355

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    APPEAL No. [2002] UKIAT 07355

    HR13512-2002

    IMMIGRATION APPEAL TRIBUNAL

    Date of hearing: 14 January 2003

    Date Determination notified: 21 March 2003

    Before

    The Honourable Mr Justice Ouseley (President)
    Mr D K Allen
    Mr P R Moulden

    Between

    A APPELLANT
    and  
    Secretary of State for the Home Department RESPONDENT

    For the Appellant: Mr J Gillespie, instructed by Tyndallwoods, Solicitors
    For the Respondent: Mr S Kovats, instructed by Treasury Solicitor

    DETERMINATION AND REASONS

  1. This appeal concerns a Libyan citizen who after residence in this country since 1979 and a marriage in 1983, was convicted in 1991 and again in 1996 of serious sexual offences. Between the two convictions, and at the second attempt, he was granted asylum, in response to a deportation order. He has now completed the prison sentence for rape imposed in 1996 but remains in immigration detention. The Secretary of State proposes to deport him to Tripoli, relying on Article 33(2) of the 1951 Refugee Convention. The Appellant appeals against the Adjudicator's dismissal of his appeals under the 1951 Refugee Convention and Article 3 of the ECHR.
  2. THE FACTS

  3. The Appellant is a Libyan national, born in Libya in 1958 who first entered the United Kingdom in 1979 with 6 months leave as a student. Subsequently in 1979, he was granted leave to remain as a student, which with extensions lasted until June 1983. In 1979 and 1980 he returned to Libya to visit his family.
  4. In February 1983, he had a daughter by a British citizen, whom he married in November 1983. In April 1985, he was granted leave to remain for a year as a foreign spouse and in October 1986 was granted indefinite leave to remain on that same basis. Since the conclusion of his studies, he has had various jobs as a waiter, interspersed with spells of unemployment.
  5. In January 1991 at Newcastle Crown Court, following a trial, the Appellant was convicted of serious offences of indecent assault against his daughter, who was seven at the time of the offences. (The Adjudicator is in error in referring to a stepdaughter). Two counts related to occasions when he put his penis in her mouth and the third to an occasion when he touched her genital area with his hand and penis. This was in the alternative to a rape or attempted rape charge. The Judge sentenced the Appellant to three years imprisonment concurrent on each count.
  6. His wife divorced him; in April 1991 the decree was made absolute; and in December 1991 social services advised that he should have no access to his daughter. The Appellant served only one year of his sentence.
  7. In November 1991, the Secretary of State advised the Appellant that he was being considered for deportation, and on 30th December 1991, shortly before his release, the Appellant applied for asylum. He was interviewed in May 1992 for asylum purposes and a few days thereafter became engaged to and in July married another British citizen. He was interviewed about his marriage in September 1992 because he had by then applied for leave to remain as a foreign spouse.
  8. On 30th January 1993, the Secretary of State refused his asylum claim and gave notice of his intention to deport the Appellant on the ground that his deportation would be conducive to the public good.
  9. In October 1993, the IAT heard his appeal against the decision to make the deportation order under section 3(5)(b) of the Immigration Act 1971 and to give directions for his removal to Libya. It considered his asylum claim. By its determination notified on 12 January 1994, the IAT dismissed the appeal. In view of submissions made to us about the importance of a subsequent Adjudicator's decision in relation to the way in which the Secretary of State and we should approach matters, we cite two passages from its determination. After accepting the genuineness of the feelings which his second wife, then pregnant by the Appellant, had for him, believing him to be innocent of the crimes for which he had been convicted, the President said:
  10. "We were not impressed by the Appellant's evidence. We doubt whether his second wife plays such an important part in his scheme of things as he would have us believe. We doubt whether the Appellant would have married with such speed or agreed to his wife becoming pregnant if it had not been for the possibility of these proceedings.
    We accept that the authorities in Libya are capable of acting in an irrational manner. We do not accept the Appellant has ever taken any interest in politics and we doubt whether in fact he has any reason to fear the Libya authorities. We note that he has a large family in Libya and remains in contact with them. His education in this country would be an asset in Libya.
    There is no evidence that any country other than Libya would be willing to accept the Appellant on deportation from the United Kingdom."
  11. The Tribunal refused leave to appeal to the Court of Appeal in February 1994, shortly after the birth of his daughter by his second wife.
  12. In June 1994, the deportation order was served on the Appellant and two days later he made a fresh application for asylum, which in July 1994, the Secretary of State refused; he also refused to revoke the deportation order. This generated a fresh appeal which, under the Asylum and Immigration Appeals Act 1993, went for hearing before a Special Adjudicator in September 1994, who, in a determination promulgated in October 1994 allowed his appeal.
  13. In her determination the Special Adjudicator makes no obvious reference to the basis of the earlier adverse IAT decision. She said:
  14. "I found the Appellant generally credible. I believe that he was involved in a minor way against the regime in Libya prior to coming to the United Kingdom. I accept that he manipulated the situation to leave the country in 1979 to come here as a student. I accept that he is opposed to the regime and has been all along. I do not accept that the mere fact that he received funding through the Libyan embassy suggests that he is a supporter of the regime. I accept his evidence regarding the approaches made by students "planted" by the Libyan government. I accept that he demonstrated in this country against that government on one occasion. I accept that he fears returning to Libya. I believe that that fear is genuine. I find that whilst he clearly does not want to do military service, the fundamental reason for this fear is the fact that he is known to the Libyan authorities as somebody who has flouted their instructions in failing to return to that country. I accept wholly Mr Gray's contention that given the nature of the regime particularly it is unlikely that his failure to return as and when instructed would be overlooked by the Libyan government. I therefore find that his fear of persecution is well-founded and that for a Convention reason, namely his political beliefs which run contrary to those of the Gadaffi regime. I do not believe that the Appellant's account is exaggerated. His evidence, whilst rather wordy, seemed to me to be given in a fairly straightforward way. He became somewhat agitated when he thought that I might not understand everything that he was saying. His wife was a wholly credible witness and I believe her when she says that her husband suffers nightmares. Clearly I do not know the reason for those. I accept that she believes he is a troubled man for whatever reason."
  15. The "fundamental reason" she referred to is the Appellant's refusal to return to Libya in 1984 at the end of his studies when he was supposed to return and had been instructed to return. It is not entirely clear whether the Special Adjudicator saw that as part of a general instruction to Libyan students abroad in 1984 or one specifically related to him as a student whose studies had finished. His military service had also been postponed by the Libyan Government to enable him to undertake his studies.
  16. The Special Adjudicator does not explain the Geneva Convention reason for which she thought he would be at risk of persecution. It would appear to have been an imputed political opinion, that the Appellant was opposed to the Libyan regime.
  17. That determination is not without its troubling aspects but no appeal was made from it by the Secretary of State.
  18. In October 1994, social services removed his second daughter from the family home and placed her with her maternal grandmother.
  19. On 1st July 1995, the Appellant raped a twenty five year old woman and, after a trial, was convicted and on 1st July 1996 at Newcastle Crown Court was sentenced to seven years in prison. Deportation was recommended.
  20. Whilst the Appellant was still serving his sentence, the Home Office wrote on 16th September 1999 to the United Kingdom representative of the UNHCR stating its intention to seek to invoke Article 33(2) of the 1951 Refugee Convention. Thereby the prohibition on the return of a refugee to a country where his life would be threatened for, in this case, political opinion is inapplicable to a refugee who "having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of" the country in which he is present.
  21. In his letter of 30th September 1999 recommending that Article 33(2) be applied with great caution, as a general proposition, the representative said that a balance had to be struck between the dangers faced by the individual on return and the dangers faced by the state were he to stay. Other measures including detention should be considered. It was for the state to show that expulsion was justified and indeed was justified by the present or future dangerousness of the Appellant as to which his past conduct might be a guide but could not of itself be conclusive. He should be given a reasonable period in which to seek admission to another country.
  22. Following his Non-Parole Release Date on 19th April 2000, the Appellant was detained under the Immigration Act 1971, Schedule 3 paragraph 2(1). The Secretary of State envisaged that he would be deported and invited representations from him on 26th May 2000 as to why he should not be returned under Article 33(2). His response of 16th June 2000 affirmed his loyalty to and long residence in this country, his innocence of all offence, his two marriages, his children and his engagement to another British citizen who was aware of his background.
  23. However in May 2000, the Home Office had put a temporary hold on the enforced removal of failed asylum seekers to Libya, because of what Amnesty International had said: one returned person had been imprisoned.
  24. On 18th June 2000, the ECO Tripoli wrote to the relevant FCO Section dealing with Libya, (NENAD), spelling out his experience and views, on the position of the Appellant, as he had been asked to do.
  25. The ECO said that since arriving in Tripoli he had had visa applications from people who were students in the UK at around the same time as this Appellant and who did not immediately return to Libya, as all of them had been ordered to do in 1984. He commented "most of these people do not appear to have had any long term problems because of this". He said that he had been told that one of the methods used by companies to ensure that the students whom they had funded would return to Libya was to sue their families which could lead to significant bills being faced by the families. He was surprised that, if a level of fine of between 90,000 - 200,000 were known about, the Appellant had not told his family that he did not intend to return. Conversely if such a fine had been levied against the family, it might explain why the Appellant had not spoken to them for some 14 years. He continued:
  26. "I do find it puzzling that someone who had been arrested for demonstrating against the regime would have been allowed to leave the country as the Appellant did in 1979. I am also surprised that given his apparent opposition to the regime he then returned twice to Libya on holiday. It is usually the case that students going to the UK with any form of sponsorship normally have close family links to the regime. If there were any hint of a national security problem it is very unlikely that he would have been allowed to leave Libya at all."
  27. The ECO also pointed out that the occasion on which the Appellant claimed to have been protesting against the Libyan government was actually from the middle of a pro-Gadaffi demonstration. After the Adjudicator's decision, further elaboration was provided of this letter, in response to the Appellant's solicitor's questions.
  28. On 11th May 2001 in the Libya CIPU Bulletin 01/01 the Secretary of State announced a new policy for failed asylum seekers from Libya. A limited six month exceptional leave to remain would be granted to refused Libyan asylum seekers; this policy would be closely monitored in order to facilitate its review in twelve months or less if new information became available. The reason for this policy was that in addition to the representations from Amnesty International which had led to the temporary hold being placed on the enforced removal of failed asylum seekers to Libya in May 2000, there had been other reports of returned asylum seekers being subject to serious human rights abuses including torture and at least 3 out of 7 Libyans extradited from Jordan on one occasion had been killed on arrival at Tripoli airport. The FCO advised that failed asylum seekers were interrogated and routinely imprisoned by administrative act for "having shown disloyalty to the state". The CIPU Bulletin said "any representation made under Article 3 of the Human Rights Act against the removal to Libya of a refused Asylum applicant, and based on information currently available in the public domain is likely to succeed". No significant change was expected within the next twelve months. A specific reference was made to those who had been convicted of a serious crime and were subject to a recommendation to deport from the Courts. Advice on those individual cases was to be provided to ministers.
  29. On 5th July 2001 the Respondent signed a second deportation order in respect of the Appellant and he became detained under paragraph 2 (3) of Schedule 3 to the 1971 Act and was informed of that fact. In July 2001 the Appellant appealed on human rights grounds against that deportation order. He said as well that he had a genuine fear of persecution because of his political opinions and involvement in opposing the Gadaffi regime. He said that he feared for his life and would be targeted by the military regime in Libya, tortured and killed.
  30. On 10th August 2001 the woman, to whom the Appellant said he was engaged in June 2000, told the Secretary of State that she had ended her relationship with the Appellant and wanted no contact with him.
  31. On 18th January 2002 the Near East and North Africa Department (NENAD) of the FCO wrote to the CIPU of the Home Office dealing with the potential return of failed asylum seekers to Libya. This is an important letter upon which the Respondent placed great weight. The Appellant is one of those referred to in paragraph 2. After the Adjudicator's determination, it too was elaborated on in response to questions on behalf of the Appellant.
  32. "1. You requested an assessment of the current situation in Libya and the authorities' likely attitude towards Libyan nationals deported from the United Kingdom. I received a preliminary reply to this question in November, the burden of which was that the people concerned would not face serious difficulties in Libya, provided they had not been involved in anti-regime activities. This reply was by no means definitive.
    2. HMA Tripoli has recently had the opportunity to raise this issue with a senior member of the Libyan Government. He read to him the standard list of assurances that the Home Office seeks in such cases from the receiving country. He also explained two specific cases in outline. The Libyan official said that the two names were not ones he recognised as having any political significance. He said that they seemed to be economic migrants who had committed crimes, and not people of any significance to the Libyan security authorities. On that basis, they would not face difficulties indeed, they might not even be questioned.
    3. These comments are consistent with the information Tripoli has obtained from their Legal Adviser. It is impossible to be one hundred per cent confident of the assurances we need, given the presence in Libya of numerous security agencies. Once a Libyan is returned following deportation, we lose any ability to protect them. Travel documents might well highlight them for special attention by the Internal Security Authorities. Moreover, there may be something in their record that turns up when they research the names of deportees.
    4. That apart, HMA Tripoli has confidence in his contact's judgement. On balance, therefore, he believes it should be possible to recommend to Home Office Ministers that serious ill treatment is unlikely and that the men, in these cases, could be returned without a breach of the European Convention."
  33. By a letter dated 8th February 2002 to the Appellant's solicitors, the Home Office rejected the Appellant's contention that his removal to Libya would breach his human rights. The Secretary of State also maintained his view that, given the serious offences of which the Appellant had been convicted and given the risk of his re-offending, Article 33 (2) of the Geneva Convention applied to him. The Secretary of State explained his position in some detail.
  34. He said in paragraph 7 that in the light of the policy in the CIPU Bulletin on Libya which stated that any case involving serious criminal offences should be referred to ministers for decision, it had been decided that further enquiries should be made through the FCO as to the current position with regard to returns and also "whether there would be any danger to your client in particular". This was in view of the particularly serious nature of the offences which the Appellant had committed.
  35. In paragraph 8 of his letter the Secretary of State said:
  36. "The results of these enquiries have now been received and a copy is enclosed for your information, letter of 18th January 2002. In light of the comments of the Foreign and Commonwealth Office, the assurances of the Libyan authorities and the Ambassador's endorsement of this, the Secretary of State is satisfied that the United Kingdom would not be in breach of Articles 2 and 3 of the ECHR if your client were to be removed to Libya. Furthermore he notes that although your client applied for asylum there is no evidence that this information is known to them. Your client was here initially as a Libyan government sponsored/supported student. He was then given residency on the basis of his marriage to a British citizen and since that was revoked he has been dealt with in the light of his criminal offences. The Libyan authorities are aware that he is to be removed as a result of his convictions and there is no reason for them to suspect your client has applied for asylum. The Secretary of State would point out that the guidance in the CIPU Bulletin only applies to failed asylum seekers and given that your client can point to other reasons for being in the United Kingdom there is no reason to believe that he would face any difficulties on return."
  37. The Secretary of State considered and rejected an argument from the Appellant that his removal would breach his Article 8 rights, that he should be allowed to stay because of the length of time for which he had already been resident in the United Kingdom and arguments about the fairness of his trial. The Secretary of State noted that no alternative destination for removal had been stated. He had reviewed again the detention of the Appellant. He continued: "I have also taken into account pre-release reports which have been disclosed to me which lead me to believe that there is a high risk that your client will seek to re-offend if released."
  38. In April 2002 Tyndallwoods for the Appellant wrote to the Secretary of State seeking further information as a result of this decision letter to which the Respondent replied by letter dated 1st May 2002. It dealt first of all with the Secretary of State's approach to Article 33 (2) of the Refugee Convention. He said that the Article did not require a balancing exercise to be undertaken between the risks to the Appellant and the interests of the community within the United Kingdom, because of section 34 of the Anti-Terrorism, Crime and Security Act 2001. But he went on to point out that the Appellant had been convicted of two serious criminal offences for which he had received in total custodial sentences amounting to ten years. These were seen as extremely serious offences and pre-release reports indicated a real risk of re-offending. This meant that alternative measures such as assigned residence would be totally inappropriate.
  39. The Secretary of State also confirmed that the Appellant was one of the two people mentioned in outline and informally by HM Ambassador, Libya, to the senior Libyan official, the discussions with whom were set out in the letter of 18th January 2002. At those informal discussions, travel arrangements had been discussed though no documents had been sought. Finally the letter said:
  40. "Although The Foreign & Commonwealth Office advice indicates that 'Failed Asylum seekers' are routinely imprisoned, there is no evidence to suggest that the Libyan authorities have any interest in [A] as an asylum seeker. Details of his departure from Libya would indicate that he travelled to the UK as a student and the leave to remain was granted on the basis of his marriage to a British Citizen. Further discussions with regard to your client's removal have revolved around his criminal convictions as the basis for his exclusion from the UK".
  41. On 15th April 2002 NENAD provided a further assessment to CIPU of the current situation in Libya and its likely attitude towards Libyan nationals deported from the UK. A preliminary reply had been set out in the letter of 18th January 2002:
  42. "The gist of which being that returnees would not face serious difficulties in Libya, provided they had not been involved in anti-regime activities.
    The Libyan authorities appear to take a slightly more relaxed view than they have done previously. HMA Tripoli had the opportunity to raise this issue in January with a senior member of the Libyan Government. He read to him the standard list of assurances that the Home Office might seek from the receiving country. The Ambassador was informed that economic migrants and those that had committed crimes were unlikely to be people of any significance to the Libyan security authorities. On that basis they would not face difficulties indeed, they might not even be questioned on their return."
  43. In paragraph 3, NENAD commented that this was consistent with the information obtained from their legal advisor but it acknowledged that it was impossible to be:
  44. "3. 100% confident of the assurances we need, given the presence in Libya of numerous security agencies. Once a Libyan is returned following deportation, we lose any ability to protect them. Travel documents might well highlight them for special attention by the Internal Security Authorities. Moreover, there may be something in their record that turns up when they research the names of deportees.
    4. That apart, HMA Tripoli has confidence in his contact's judgment. On balance, therefore, he believes it should be possible to return certain categories of migrant without a breach of the European Convention."

    THE ADJUDICATOR'S DETERMINATION

  45. The Adjudicator's determination was promulgated on 31st May 2002. The Adjudicator (Mr J P N Hallam) concluded first of all that the Appellant constituted a danger to the community following his conviction for a particularly serious crime and the further offending which led to the rape conviction, together with the denial of guilt, the probation officer's reports and the Appellant's misbehaviour in prison. Accordingly he concluded that the provisions of Article 33 (2) of the Refugee Convention were satisfied. He considered the UNHCR letter of 30th September 1999, the ECO, Tripoli letter dated 18th June 2000 and the CIPU Bulletin of January 2001. He dealt with the facts surrounding the Appellant's arrival in the United Kingdom and the basis upon which he had been granted leave to remain. He concluded that the Appellant would not be of any specific adverse interest and although he recognised that the CIPU Bulletin referred to the prospect of interrogation of those who had been absent for more than six months, he concluded that the Appellant would have a reasonable explanation to give when interrogated on arrival as to his absence: he had been granted leave to remain on the basis of his marriage and indeed had had two marriages in the United Kingdom. The involvement alleged by the Appellant when a student in Libya in protests did not appear to have had any adverse affect on him being allowed to leave Libya or to return for visits in 1979 and 1980. The successful asylum claim would not become known to the Libyan authorities and he did not consider that they would be aware either of reports in the press in Newcastle relating to the convictions and deportations. He also gave weight to the letters of 18th January 2002 and 1st May 2002 from the Respondent to the Appellant's solicitors to which we have already made reference. He concluded that there was no "well-founded risk" of a breach of Article 3 or Article 2 should the Appellant be returned to Libya.
  46. THE GROUNDS OF APPEAL TO THE IAT

  47. The grounds of appeal raised an issue of procedural impropriety. It was contended that the Respondent had handed to the Adjudicator at the end of the hearing a bundle of documents which it was thought included newspaper and prison reports and statements related to the criminal trial. The Appellant contended in the grounds that the documents had not been provided to him and he had had no opportunity to comment on them before they were taken into account by the Adjudicator. This was particularly identified as an important ground by the Vice President granting leave to appeal. It was said that the Adjudicator had effectively overturned the decision of the Adjudicator in 1994 allowing the Appellant's appeal against the refusal of his asylum claim. A series of criticisms were made of the way in which the Adjudicator had assessed the evidence upon which the Respondent had relied in considering the safety of the Appellant were he returned to Libya. The Appellant also indicated that he would be seeking to cross-examine the author of the letter of 18th January 2002 which we have set out above in full.
  48. THE NEW MATERIAL

  49. Between the grant of leave to appeal to the IAT and the hearing of the appeal, the CIPU published a further bulletin on Libya dated 7th October 2002. It provided guidance on dealing with Libyan asylum claims in the light of the announcement made that same day in relation to the use of exceptional leave to remain for unsuccessful asylum seekers from Libya.
  50. The Home Secretary had announced an end to all country-specific policies on exceptional leave to remain. In future, all cases would be examined and decided on an entirely individual basis. That change of approach meant that the specific ELR policy introduced in April 2001, based on concerns about the safety of returning failed asylum seekers, had now ended and in its place was a process of examining the cases on an individual basis. It stated that in all Libyan cases where refugee status was refused, it would be considered whether it was appropriate in the individual circumstances to grant exceptional leave.
  51. CIPU drew attention to the letter of 15th April 2002 from the FCO to which we have already made reference and to a report of a Swedish Migration Board fact-finding mission to Libya conducted in mid-2002.
  52. The Swedish Immigration Board Report of July 2002 containing "impressions from a fact-finding trip to Libya and Malta" in June 2002 referred to the highly active internal and external intelligence services of Libya which now appeared to be focusing more directly on clearly defined opposition groups and individuals rather than on more generalised oppression. Opposition to the Gadaffi regime in the UK and Egypt, where it primarily exists, was said not to be seen as an actual present threat by the regime. The various current pressures to emigrate are identified. There were strict controls over Libyans leaving the country, but it was not known whether any special criteria existed for the availability of travel documents for those Libyans returning to Libya. It is assumed that they are questioned, at least for the purpose of ascertaining nationality. Where deportation to Libya is necessary, because foreigners such as Tunisians claim Libyan nationality to assist their asylum claims, the Libyan "should preferably be given the opportunity to contact the Libyan authorities to gain the necessary documents for re-entry to Libya". But deportation without documents "should also be an option".
  53. Libyans convicted and punished abroad for an offence committed abroad do not face further punishment in Libya. But Libyans involved in opposition activity abroad may be arrested and tried on return. Although it said that new cases were rare, in October 2002, an individual returning from the UK had been given a long prison sentence, though under appeal, for what the Libyans saw as a serious offence involving possession of arms. It states in its conclusions, though the point is not elaborated in the text of the report, that "An application for asylum abroad will not, in itself, put a Libyan at risk on returning to Libya."
  54. The number of political prisoners was thought to have been considerably reduced from several thousand to a few hundred, with new cases thought to be very rare.
  55. There had been many small changes over recent years which had contributed to a softening of social conditions and greater openness resulting from a desire by the regime to change its image from a terrorist supporting country.
  56. The CIPU Bulletin on Libya dated 6th December 2002, which is to be read in conjunction with the Bulletin of 7th October 2002, updated the casework directions on the return of failed asylum seekers to Libya, replacing those in the May 2002 Bulletin, which the later Bulletins superseded. It stated that the suspension of removals of failed asylum seekers to Libya was still in force, although it appeared from the October Bulletin and its attachments that "the situation has moved on".
  57. As part of the Appellant's preparations for the appeal to the Tribunal, his solicitors wrote to the Treasury Solicitor on 7th October 2002 with a large number of questions about the letters of 18th January 2002 and 18th June 2000. This engendered two further letters. The first, dated 18th October 2002, was from the Treasury Solicitor to the ECO, Tripoli. In addition to passing on the questions raised by the Appellant's solicitors, the Respondent sought, following a Tribunal direction, information about the ECO's experience in Libya. The ECO replied by letter dated 20th October 2002 elaborating on his letter of 18th June 2000. In his letter, the ECO stated that he had arrived in Tripoli as ECO in March 2000 and some three months later had dealt with 1,099 visa applications. He had been briefed on arrival on local circumstances by the previous ECO who had been working in Tripoli since early 1999 and by the Deputy Head of Mission who had been working in Tripoli since 1998. The ECO said that he relied heavily on the briefing which he had received from those two gentlemen, and in particular the previous ECO who had extensive knowledge of Libya. The current ECO had been in the FCO since 1988 and had previous experience of immigration work.
  58. In paragraph 2, he stated:
  59. "I have encountered cases where applicants have not returned to Libya when instructed to by the regime in 1984, but have returned at a later date and not encountered harassment or restrictions on travel. However, I cannot say how many I had encountered by 18th June 2000. I did not monitor these cases, I came across them as they applied for further visas."
  60. He then referred to the basis upon which the Appellant had come to the United Kingdom in these terms:
  61. "Umm Al Jawaby (UAJ) is the service company that arranges training in the UK for Libyan oil sector employees. Mr A was originally a Libyan oil sector student in the UK, his training, maintenance and accommodation would normally have been organised by Umm Al Jawaby. Mrs Gaston is the Head of Training for UAJ. She told me that it was Libyan National Oil Corporation (the holding company that controls oil companies in Libya) policy to attempt to recoup the loss of funds caused by students remaining in the UK from the family who remain in Libya. Mrs Gaston did not say when this policy had begun. We did not discuss the case of Mr A specifically."
  62. Next he dealt with people leaving Libya. He pointed out that opponents of the regime have been stopped from leaving in the past and that there is also an arrival control and embarkation control. Libyan immigration officers have an equivalent to the warnings index. Libyan authorities monitored the activities of Libyan students in the UK in the 1970s and 1980s. Patronage played a large part in the selection of Libyan students for sponsorship for study abroad and an influential contact in the state bureaucracy was extremely helpful. He explained that the basis for his saying that someone could have been brought forward to support the Appellant's contention that he had been protesting against the Libyan government in the middle of a pro-Gadaffi demonstration had been anecdotal evidence. He said that in the 1970s anti-Gadaffi protestors were likely to be arrested and detained at least for a short period and that it was very unlikely that someone in those circumstances would have been allowed foreign travel. He said that he had encountered at least one person seeking a visa who had been detained without trial as an opponent of the regime from the early 1980s until 2002. Having said that the 1970s were a dark period in Libya's history, he said that the nature of the regime and the UK's relationship with it was changing. He said:
  63. "We are aware that the Swedish authorities recently forcibly repatriated a Libyan failed asylum seeker. On arrival he was questioned by the authorities, but the Swedish consul had subsequently met with the man in Tripoli."
  64. The FCO replied to Tyndallwoods in a letter of 21st November 2002, answering questions which Tyndallwoods had raised in their letter of 7th October 2002 concerning the letter of 18th January 2002 from NENAD to the Home Office. The preliminary reply, to which NENAD referred in its letter of 18th January 2002, to the question of whether Libyan nationals deported from the United Kingdom would face serious difficulties in Libya, was both in response to a request for a general assessment of the situation which failed asylum seekers or deportees might face and a further request relating specifically to two individuals, one of whom was the Appellant. The preliminary reply dealt with both aspects. As requested, an explanation was given as to the sources of information underlying the assessment. The more general enquiry was made by the author of the letter to the Deputy Head of Mission who replied, having consulted the Honorary Legal Advisor to the Embassy. The reply was that any deportee would be questioned on return to ascertain whether
  65. "(i) they had acted against the Libyan Government while overseas by being a member of an opposition grouping or other such political activity and (ii) as to why they were arrested in the UK. On the whole this would just be routine questioning and if there were no political context they would be quickly released. It was the HLA's considered opinion that a deportee would not face problems on their return if they had not been involved in political activity - even if they had claimed political asylum, as long as the individual were able to explain the reason behind any claim was based on economic or other grounds. The DHM added that the Embassy was aware of Libyan asylum seekers who were at large in Libya."

    The reason why this general assessment was not considered to be definitive was because it was a generalisation and so could not be certain of application to all returnees. The author of the letter said that in his experience the reactions of the Libyan authorities were not always consistent and so any answer, without reference to Libyan officials, could not be considered definitive.

  66. The second more specific enquiry had been made of the Ambassador. The senior member of the Libyan government to whom he had spoken was described as "a very senior member" of the Libyan government, but it was said that it would be contrary to the public interest and diplomatic relations to identify that person in these proceedings. The discussion had taken place in Tripoli. The reason for the Ambassador's confidence in him was that the Ambassador, a highly experienced diplomat, had had numerous dealings with him and trusted his judgment. Both the individuals whose circumstances were outlined to this senior member of the Libyan government had been convicted of serious offences, had served their prison terms and had been recommended for deportation. The list of assurances which had been sought by the Ambassador was disclosed to Tyndallwoods. They included assurances that no-one should be detained unless there was due cause, or harassed or subjected to ill-treatment by the authorities or ill-treated in detention. If detained, they should have a hearing which was to be fair and in public; it should be by an independent impartial judiciary in a civilian court. The usual requirements in relation to the fair conduct of a trial were also assured. Arrangements would be made for access by the British Government and independent medical personnel during any term of imprisonment.
  67. NENAD did not know whether any other person had been deported to Libya or what had happened to them if they had been. Nor did he know whether the Libyan official had made enquiries before giving the responses upon which the Ambassador relied. The Honorary Legal Advisor to the British Embassy was named and NENAD said that it was assumed that his advice as to whether somebody would or would not be questioned was based on local knowledge and experience. There was no correspondence which contained the notes of what had been said.
  68. The author also pointed out that the bulletin of 11th May 2001 from CIPU merely said that the FCO did not expect a significant change in the human rights situation in the next twelve months. He pointed out that his letter was dated 18th January 2002 and itself was eight months after the Bulletin, and that followed a period in which there had been a significant improvement in relations with Libya.
  69. THE SUBMISSIONS

  70. Mr Gillespie first sought an adjournment on instructions so that Ms Dubicka who had represented the Appellant before the Adjudicator could represent him before the Tribunal. There was no justification in our judgment for an adjournment simply because of a preference as to the advocate; Mr Gillespie was able and willing to proceed and the Appellant was in the end content to be represented by him. Mr Gillespie presented the case very competently, if we may say so.
  71. But there was a further reason for seeking Ms Dubicka's advocacy which related to what was said to have happened before the Adjudicator, particularly as Mr Kovats for the Respondent, who had also appeared before the Adjudicator, appeared before the Tribunal.
  72. In the event, it became clear and accepted on all sides that no adjournment was necessary on that basis either. Whatever in fact happened before the Adjudicator, it was clear that documents had not got to the Appellant as promised and he had not had the opportunity to make whatever comment on them he wanted. These documents in particular related to statements used or available for the criminal trials and might have been relevant to his dangerousness to the community.
  73. However, the Appellant and his advisers had received them sufficiently in advance of the Tribunal hearing to be able to absorb them and deal with them so far as relevant. We checked that there were no documents which we had which the Appellant lacked. Mr Gillespie recognised that the procedural issue no longer existed.
  74. Mr Gillespie's primary submission was that this case turned on the applicability of Article 3 ECHR to the facts of this case. Indeed, it was common ground that that was the key issue. This was because of the absolute prohibition on the return of the Appellant to Libya were he to be at a real risk of treatment there in breach of Article 3; see Ullah v Special Adjudicator and Do v Secretary of State for the Home Department [2002] EWCA Civ 1856 16th December 2002, having regard to Chahal v United Kingdom (1996) 23 EHRR 413.
  75. He submitted that the decision in 1994 that the Appellant was a refugee meant acceptance that he had a well-founded fear of persecutory ill-treatment, equivalent to a breach of Article 3. If the Secretary of State wished to show that that no longer applied, the evidential burden lay on him to show the necessary change of circumstances, following the decision of the Court of Appeal in Arif v Secretary of State for the Home Department 1999 Imm. A.R. 271. The Secretary of State could not just invite the Tribunal to depart from an earlier, unchallenged Adjudicator's decision without transgressing its own guidelines in Devaseelan [2002] UKIAT 00702, [2003] Imm AR 1 a starred decision dealing with a second, human rights, appeal following the determination of a first, asylum, appeal.
  76. Mr Gillespie placed reliance on the IAT decision in Hassan [2002] UKIAT 00062, 7th February 2002. This decision, in which the Appellant succeeded in his appeal against removal directions to Libya, was based on the new Home Office policy of May 2001. The Tribunal pointed out that the Bulletin itself established that that Appellant was a refugee, not on the grounds relied on by the Appellant, but because there was a real risk that he would face persecution on return : this was that he would suffer imprisonment because of the political opinion which would be imputed to him, as someone who had shown disloyalty to the state. In those circumstances submitted Mr Gillespie, the real risk of ill-treatment in breach of Article 3 ECHR was made out.
  77. Mr Gillespie referred to a variety of background documents: an Amnesty International Report of 1997 identified systematic and gross violations of human rights, detention without trial and torture. Several opponents, especially members of Islamist groups had been forcibly returned from countries such as Egypt, Tunisia and Sudan many of whom were arrested on arrival and detained without trial. Extra-judicial killings including the murder of leading opposition members outside Libya had taken place in the 1990s. Families had been pressurised to denounce relatives as traitors. No improvement in the detention of prisoners of conscience, held without trial, was reported in Amnesty's 1999 report.
  78. In July 2000, Amnesty International Canada published its concerns about the return of asylum seekers to Libya, some of whom had previously been granted asylum. These appear mostly to have been from Middle East countries, with some more recently from Europe. It said that all forcibly returned asylum seekers had been detained on return and either remained detained or that there was no information about them. Follow-up was very difficult. Some individuals wanted by the authorities had been able to leave Libya, using their own passports, although security clearance was generally required.
  79. The Amnesty International Report on the year 2000 said that some asylum seekers and refugees, now being forcibly returned, were detained and some had been the subject of serious human rights violations. Those referred to were suspected Islamist sympathisers.
  80. In August 2001, it reported on the release of dozens of political prisoners as a "very positive step" but referred to hundreds more still detained. An Amnesty International report of 13 December 2002 referred to the continuing "appeal trial" of scores of professionals and students, in connection with their membership of a banned Libyan Islamic group. Just over half of those charged had been convicted; those convicted faced long terms of imprisonment and two faced the death penalty. The Report referred to uninvestigated allegations of torture, to the prisoners being held incommunicado for long periods. It refuted Libyan Government claims that there were no longer any non-violent political prisoners in custody; it said that it had documented many cases of long-term political prisoners and prisoners of conscience, still in prison, following arbitrary detention, or unfair trials or even orders for their release.
  81. The US State Department report of February 2001 noted that students studying abroad have been interrogated upon their return to Libya, often having been called back on little or no notice. It referred to the Libyan Government encouraging dissidents abroad to return, with promises of safety but pointed out that few had done so and that the sincerity of the offer remained unclear. But having no official presence in Libya, it acknowledged that its information was limited.
  82. Mr Gillespie also referred us to the views of Ms Alison Pargeter expressed in March 2001 in another case in connection with the return to Libya of a failed asylum seeker. It dealt particularly with the problems faced by Islamist sympathisers.
  83. Justice International reported in June 2001 on a "wave of mass public crackdown against political dissent" in which 98 prisoners of conscience who had been arrested subjected to serious human rights abuses would face trial in an extra-judicial tribunal, in June 2001. 68. He submitted that the overall picture did not show any change in the position in Libya from that pertaining in 1994 and in Hassan.
  84. Likewise the correspondence between the FCO, Respondent and Tyndallwoods was analysed for the qualifications and uncertainties which it contains. Indeed, there was concern that, as the 18th January 2002 letter showed, the Appellant's name had been revealed to the senior Libyan official. The risk that the Libyan authorities were monitoring what Libyan nationals did in the United Kingdom meant that they might have picked up Newcastle press reports in 1996 of the Appellant's rape conviction in the context of his refugee status and his fears for his life were he to be deported.
  85. As for Article 33(2), Mr Gillespie submitted that it did not involve any cessation of refugee status, or exclusion from it; it simply meant that someone lost his immunity from refoulement. He recognised the difficulties of arguing that the Appellant was not a danger to the community but contended that Article 33(2) inherently involved a balance being struck between the degree and nature of the risk to a refugee and the degree and nature of the danger which he posed to the community. He submitted that section 34 of the Anti-Terrorism, Crime and Security Act 2001, which excluded consideration of the gravity of the threat to which a person returned under Article 33(2) might be subject from the judgment called for by Article 33(2), only applied in terrorist and not ordinary criminal cases.
  86. Mr Kovats for the Secretary of State did not seek to dispute the conclusion reached by the Adjudicator in 1994 but contended that there had been a change in the situation in Libya and that there was now more information about the Libyan authorities' attitude towards this particular individual, as revealed in the correspondence and inquiries. Libya would be indifferent to him as an individual. There was no suggestion, and this was common ground, that either the fact of his having committed criminal offences in the United Kingdom or their serious and unpleasant nature would affect the Libyan authorities' attitude or put him at risk.
  87. The grant of asylum was based on his refusal to return in 1984 when instructed rather than on any significant political activity, let alone activity which had come to the notice of the Libyan authorities. He had come to the United Kingdom to study in circumstances which were inconsistent with the Libyan authorities believing him to be opposed to the regime and there was no evidence of any significant political activity here.
  88. The Libyan authorities had not been told that the Appellant had even made an asylum claim and there was no reason to suppose that they had found out, or followed the Newcastle press. The Libyan authorities' monitoring of Libyans in this country was carried out in the 1970s and 1980s. He would have a perfectly sound basis for explaining his remaining in the United Kingdom in his two marriages and his custodial sentences. Were the Libyan authorities aware of the details of the grant of asylum, this would be a matter for reconsideration by the Secretary of State, although in these particular circumstances there was enough to show that he would not be at a real risk of persecution if it was merely discovered that he had made an asylum claim.
  89. The specific information about this individual was from high level inquiries, of a source whom an experienced diplomat considered to be informed and reliable. The background information showed a gradually changing country which was less oppressive to the population in general, though Islamist and known opposition groups were at risk of serious human rights abuses; but the Appellant was not in those categories. There was evidence that those who had not returned as instructed in 1984 were not harassed.
  90. Mr Kovats submitted that the finding of the Adjudicator that the Appellant did not have a well-founded fear of persecution by reason of imputed political opinion, was sufficient to deal with the real risk of treatment breaching Articles 2 or 3 ECHR. He accepted that the 1994 decision did impose however an "evidential burden", as was the language of Arif, but not a "persuasive burden" on him; to i.e. he had to produce evidence of a change in circumstances to warrant the Tribunal differing from the 1994 decision.
  91. The Secretary of State contended that the Article 33(2) issue still needed to be resolved, even if the Appellant won the Article 3 ECHR issue. Rule 334(iii) of the Immigration Rules (HC 395) would prevent the grant of asylum, with its associated advantages, if the Appellant were to fail under Article 33(2). There was no balancing act required under that Article, between the risk to the Appellant on return and the risk to the community were he to stay; section 34 of the Anti-Terrorism, Crime and Security Act 2001 was of general application to all Article 33(2) cases. The Appellant was clearly a danger to the community.
  92. CONCLUSION

  93. As both parties agreed, the key issue is whether or not there is a real risk that on return to Libya the Appellant would be subjected to ill-treatment in breach of Article 3 ECHR. It is trite that each case depends upon its own facts and the evidence available; it may be more or less detailed or specific to an individual, depending on the case.
  94. We consider that the Adjudicator was entitled to conclude that there was no real risk of ill-treatment contrary to Article 3 ECHR. He reached that conclusion without going back on the factual matters as assessed by the Adjudicator in 1994 or by preferring the earlier decision of the Tribunal. He reached his conclusion by an examination of the conclusions of the 1994 Adjudicator in the context of the new, specific material relating to this individual, and the current country material. That approach is in line with the Devaseelan guidelines, because account is being taken of post decision facts as to the situation in Libya generally and specific to this individual. Those guidelines are of assistance but were not really designed with this type of problem in mind. There is some material which also casts light on the extent to which the Libyan authorities had knowledge of any of his activities some twenty five years ago.
  95. We have also considered material which could not have been placed before the Adjudicator. Of its nature that has necessitated a full examination of the material for ourselves. We too do not go behind the Adjudicator's 1994 decision, although as we have said, it is troubling that it went behind the earlier 1994 Tribunal decision without even referring to it. The Secretary of State did not submit that we should reassess the Appellant's position as at 1994.
  96. Arif does not apply where someone has been granted refugee status; if someone has not yet been granted refugee status, their position is considered as at the date of the hearing with past facts being relevant to the decision.
  97. This case requires a judgment to be reached in the light of all the available material; the fact that in 1994 refugee status was granted is part of the picture but not determinative of the conclusion which needs to be reached in relation to Article 3. We consider first the extent to which the Libyan authorities would know of any political activities which might put him at risk.
  98. There is no basis for concluding that the Appellant had engaged in any political activities of significance in Libya. Although he gave evidence to the Adjudicator in 1994 of what he had done in Libya in the late 1970s, she concluded only that he was involved "in a minor way" against the regime before he came to the United Kingdom in 1979. The essential reason for the grant of asylum related to the expected approach of the Libyan authorities towards someone who had failed to return in response to their instruction in 1984.
  99. However, it is clear that to the extent that those authorities knew of his activities, they were not troubled by them, and he was not concerned either. He returned to Libya on two occasions in 1979 and 1980 to visit his family, being able to leave Libya to come to the United Kingdom as a student on three occasions. The private Libyan company which sponsored his engineering studies paid his scholarship through the Libyan embassy. The letter of 18th June 2000 suggests that sponsorship was normally associated with close family links to the regime; the 20th October 2002 letter points out that the sponsoring company, the service company arranging training in the oil sector in the UK for Libyans, is a company controlled by the Libyan National Oil Corporation. These support our assessment that his political activities in Libya were of no practical significance and would not put him at risk on return.
  100. Similarly, there is no basis for concluding that such activities as the Appellant engaged in, in the United Kingdom as a student, brought him to the attention of the Libyan authorities through students "planted" here or any other monitoring. Again, the Adjudicator in 1994 accepted that he had demonstrated against the Libyan Government but his own evidence had been that this was a demonstration in support of the Government under cover of which he shouted opposition slogans.
  101. That occasion apart, he appears on his evidence to have been an apparently dutiful, if in his heart unwilling, attender at pro-Gadaffi meetings organised by students to which he had to go if he wanted to get his grant. It is difficult to see how that could cause him problems. He did not suggest any involvement in political activities even of that sort once his studies had finished in 1984.
  102. The kernel of the asserted risk of ill-treatment lies in the Appellant's refusal to return to Libya in 1984. It appears that this was a general call to students abroad to return. But he would also have been under a specific obligation to return, because the purpose of sponsoring him was to benefit from the acquired skills; hence the financial penalties which his family risked. But the risk of persecution arose from the imputed opposition to the Libyan regime arising from that failure to return.
  103. However there is no reason to suppose now that that is how the Libyan authorities would see him. He would return as someone deported for having committed a serious crime, which would account for the fact of his return. He would have a ready and truthful account of why he had stayed in the United Kingdom - he was married on two occasions to British citizens, the first marriage being in 1983 before the call to return; he had had two children; he had also served a substantial period in custody.
  104. This would put him in a better position vis a vis the Libyan authorities than those who simply returned as failed asylum seekers because it would provide truthful reasons for his absence and his return.
  105. We consider it right in assessing risk to give very substantial weight to the specific contacts with the Libyan Government over this individual. They were made at a very senior, Ambassador, level with a "very senior" official; the Ambassador had had previous dealing with him and trusted his judgment. The inquiry, though informal and not in writing, was nonetheless not casual. The name of the Appellant was given and specific assurances sought. The Appellant's name was not recognised as of significance; economic migrants who committed criminal offences were not of significance.
  106. Likewise the absence of opposition activity abroad and deportation for ordinary albeit serious crimes would enable the likely routine questioning on return to be dealt with without a real risk of Article 3 ill-treatment.
  107. We recognise the qualifications to which Mr Gillespie referred. Obviously the letters contain no guarantees; they are not definitive. The full detail has not been disclosed ie the making and grant of the asylum claim. The Libyan Government itself may speak with more than one voice; its security services are numerous; it is a long-standing regime without necessarily constituting stable or consistent Government. All those points are sound but we found the correspondence considered, specific and persuasive.
  108. We also concluded that the background evidence permitted and supported the conclusion that in this particular instance, the Appellant could safely be returned.
  109. The ECO Tripoli letter of 18th June 2000 referred to people seeking visas who had not returned immediately in 1984, most of whom did not appear to have had long term problems; although this was his experience, there had been no monitoring and no numbers were provided. The US State Department refers to students generally being interrogated on return, but takes it no further than that and recognises the limitations on its source.
  110. Returning failed asylum seekers became in effect refugees because they were interrogated, and imprisoned for showing disloyalty as shown by the May 1991 CIPU Bulleting and Hassan. That general proposition is not removed by the two Bulletins of 2002. There is some but unspecific evidence to the contrary from the Swedish mission. But there is another factor of importance. As we have said, the Appellant would not return as a failed, or indeed successful asylum seeker; he would return with a truthful story as to his marriages and imprisonment. Further, there is more specific guidance as to how failed asylum seekers or deportees might be treated in the letter of 21st November 2002 from the FCO to Tyndallwoods: a claim of asylum would not lead to problems if it could be explained as being for economic or other non-political reasons. If the Libyans discovered or assumed that such a claim had been made, in the absence of actions against the Libyan Government, detention for any length of time was unlikely. Asylum seekers at large in Libya were known to the British Embassy.
  111. All this has to be set in the context of background evidence showing the continued detention of prisoners of conscience and the killing of some returned Islamist asylum seekers. But the general picture is of a softening of political and social conditions, a notable drop in the number of political prisoners, and an increased focus by the security agencies on specific opposition groups. The Appellant is not a member of any Islamist group, which groups appear to be particularly targeted, nor is he a member of any opposition group. This is not to say that there is no risk; it is rather that the specific assessment made for this Appellant is supported not contradicted by the changing tone of the more recent background evidence.
  112. The Respondent's current case does however very much depend on the Libyan Government not knowing of the successful asylum claim. We see no reason to disagree with the Adjudicator's conclusion that they do not know. There is no reason for anyone to have told them; the UK Government has not told them. There is nothing in the evidence of the contacts to suggest that they know. Importantly, there is nothing in the activities of the Appellant himself to suggest they know: he has good reason for both his stay in the UK and his departure; his activity in Libya pre-1979 had no obvious effect on his coming and going in 1979 - 1980 or on his being sponsored, or on the way in which here he was to support the Gaddafi regime. Aside from shouting protests in a pro-Gaddafi demonstration, his overt actions here show support for Gaddafi. We also find it difficult to believe that the Newcastle press was being monitored particularly in the mid-1990s.
  113. For those reasons, we do not consider that the Appellant would be at risk of treatment in breach of his Article 3 rights. In those circumstances, it is unnecessary to deal with Article 33(2) of the Refugee Convention but as we have heard full argument we can express our views briefly. Obviously, the conclusion that his Article 3 ECHR rights would not be breached, would be consistent with a conclusion that he would not be persecuted on return, and that his return would involve no breach of Article 33(1), and so Article 33(2) would not arise. But the Respondent's submissions in this context were not based on any such point or on Article 1(C)(5); they were based on the application of Article 33(2) on the assumption that the Appellant's ECHR rights would be breached by his return.
  114. There is clear evidence that the Appellant represents a continuing danger to women. His two convictions themselves show it: one involved his child, the other an adult; he continues to assert his innocence of both despite his convictions; the rape was committed not long after his release from custody. He has had no Sex Offender Treatment because of his denials of guilt. Two probation officers assess him as a continuing risk to a large pool of women: there is no evidence of any change since conviction. Adverse comments were also made about his behaviour in prison.
  115. There is scope for debate as to whether the operation of Article 33(2) entails a balancing exercise between the risks to the refugee and the danger to the community. In the absence of statutory provision we would have concluded that it did but that the evidence of a risk of persecutory treatment would have had to be much stronger as to degree and nature before the balance favoured the non-refoulement of this Appellant.
  116. However, section 34(1)(b) of the Anti-Terrorism, Crime and Security Act 2001 prevents Article 33(2) being interpreted in such a way as to require consideration of the gravity of the threat which the Appellant might face. Although section 34 falls within part 4 of the 2001 Act headed "Immigration and Asylum", it is not in the group of sections sub-headed "Suspected International Terrorists" but in the group sub-headed "Refugee Convention". There is little value in the sub-headings as an interpretative aid and the section is not limited to certification of suspected international terrorists or SIAC cases. We can see no justification for limiting the scope of that provision to terrorist crimes, which are usually ordinary crimes committed for political motives, and excluding from it ordinary crimes. If various distinctions of that sort had been intended, the drafting would have had to have been rather more specific. The language of section 34 is quite general and the context offers no sound basis for interpretative refinement drawing lines which it would be for Parliament to draw. However, for the reasons given, this appeal is dismissed. The decision shall be anonymised and promulgated and reported as "A".
  117. MR JUSTICE OUSELEY PRESIDENT


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