‘Human Marketplace’: New Libya Country Guidance

ZMM (Article 15(c)) Libya CG [2017] UKUT 263 (IAC) (28 June 2017)

When “mad dog” Muammar Gaddafi deposed Libya’s King Idris in 1969, his hero Nasser was both shocked and amused that the jaded ideology conjuring up fake dreams of Arab “free officers” unifying the Middle East had retained any political currency. Gaddafi’s demise was a particularly bloody affair even by Arab standards. The vacuum of power created by the collapse of the Libyan state unleashed untold ills on local people but the magnitude of the problem only came to be fully understood in the west when one Salman Abedi, who had left the UK in 2011 to overthrow Gaddafi’s regime, committed a terrorist atrocity in sleepy Manchester which left 22 people dead. Painfully ironically, like the tragic events presently bestriding the Arab world, Abedi’s terrorist attack was avoidable. “ZMM” is a citizen of Libya. He spent his whole life in Tripoli and arrived in the UK as a student in September 2014 and claimed asylum in April 2015. His appeal was dismissed but the decision was set aside in November 2016 because the judge’s approach was flawed as he failed to recoginse that FA (Libya): Article 15(c) Libya CG [2016] UKUT 413 held that the earlier country guidance in AT and Others Libya CG [2014] UKUT 318 should no longer be followed.

Alison Pargeter, who is a senior research associate at the Royal United Services Institute, gave expert evidence in the present proceedings. Even though her evidence was unchallenged, the home office representative oddly claimed that the expert had given a “possibly over gloomy” picture of Libya’s future. However, in light of the ongoing lawlessness in the country, the Upper Tribunal found that “the violence in Libya has reached such a high level that substantial grounds are shown for believing that a returning civilian would, solely on account of his presence on the territory of that country or region, face a real risk of being subject to a threat to his life or person.” The tribunal found that Libya is boiling with indiscriminate violence. Because of the intense internal armed conflict, people used to a highly authoritarian country now find that they are living amid endemic levels of violent crime. Kidnappings, robberies and murder are rife and internal travel is extremely dangerous.


The question was whether that violence in Libya has reached a scale and intensity whereby ZMM, or any other returning civilian, would by his presence alone face a serious and individual threat to his life or person?

The terms of the Qualification Directive are such that a person is eligible for subsidiary protection in circumstances where he does not does not qualify as a refugee but would still be exposed to face a real risk of suffering “serious harm” upon return. The UK is obliged to protect such persons. The expression “serious harm” is defined in article 15(c) and involves:

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

Apart from pockets of ISIS control, a multiplicity of governments control Libyan territory. The House of Representatives (HOR) is the “government” elected in 2014 which is now based in Tobruk and al-Bayda: it is believed to be backed by Egypt, Russia, France and the UAE. General Khalifa Belqasim Haftar heads the Libyan National Army and purports to serve at the behest of the HOR. In a previous incarnation, Haftar overthrew King Idris together with Gaddafi but they turned against each other. Haftar was taken prisoner of war during Libya’s failed adventure in Chad. He was released in an American brokered deal, became a US citizen and lived lavishly near CIA headquarters in Virginia for 20 years only to return to a senior military position to remove Gaddafi. Swinging in any direction to maintain a stranglehold on power, Haftar is wrongly seen as “secular” and was considered to be the “main stumbling block” to peace by Alison Pargeter.

Installed in March 2016, the UN backed Government of National Accord (GNA) in Tripoli is headed by the Presidency Council (PC). Fayez al-Sarraj is the prime minister but the real power lies in the hands of the militias. The National Salvation Government (NSG) is an alternative government based in Tripoli and is dominated by the Libyan wing of the Islamic Brotherhood. (The main branch of course is in Egypt where former Brotherhood leader deposed ex-president Morsi is serving a life sentence and the venal Mubarak has inexplicably been let off the hook.) Khalifa Al-Ghweill heads the NSG which consists mostly of hardline Islamist militias who follow the teachings of the “ultraorthodox” Grand Mufti of Libya.

None of these entities can protect the civilian population (6.4 million) living in the areas under their control. There is no effective protection and the tribunal was not in any doubt that “their ability to do so in the foreseeable future is severely compromised by several factors.”

Upper Tribunal

The tribunal said it was not giving guidance regarding claims “within the rubric of the Refugee Convention” and decision-makers should continue to refer to the guidance imparted in AT and Others Libya in respect of individual risk categories in light of any up to date evidence relied upon in the individual case before them.

The tribunal noted that in Position on Returns to Libya (2014), UNHCR cites figures (attributed to the BBC) that there could be as many as 1,700 different armed groups in Libya. In particular the tribunal mentioned extremist groups such as ISIS, Defend Benghazi Brigades and the al-Qaida affiliated Shura Council of Benghazi Revolutionaries. It noted that al-Qaida extremists who had defected to ISIS are now defecting back to al-Qaida.

In light of the fluidity of the fast moving and unpredictable security situation, guidance was imparted on, first, whether the appellant was at risk under article 15(c) if returned to Libya and, second, provided that article 15(c) does apply, can the appellant relocate to, and reasonably be expected to stay in, another part of the country in which he would not face such a risk?

Applying Diakité (C-285/12), the tribunal was satisfied that there are presently two or more armed groups confronting one another within Libyan territory. Therefore, an “internal armed conflict” – within the meaning of article 15(c) of the Qualification Directive – is ongoing in the country. The evidence showed that indiscriminate violence is a central feature of the conflict.

The tribunal examined the evidence of death and injury, both physical and mental. The general political and security situation in light of the prevailing socio-economic conditions in Libya is such that civilians are unlikely to distinguish between direct or indirect human rights violations. All potential harms that arise from the conflict were weighed in the balance. Whilst data on death and injury is an important indicator of current or future risk to civilians returning to Libya, it is not the only metric. The statistics were riddled with their own difficulties which made them unreliable. Nevertheless, the unmistakable result was that:

47. All of the evidence establishes beyond peradventure that there is conflict in Libya and that the participants are using indiscriminate violence which is having an impact on the civilian population.

For example, in November 2016, the UN Office for the Coordination of Humanitarian Affairs estimated that there are presently 1.3 million people in need of urgent humanitarian assistance in Libya and they desperately need help with essential medicines, food, water, hygiene, sanitation, shelter and education. Equally, the United Nations Support Mission in Libya was of the view that the country “continues to be embroiled in deadly violence and multiple armed conflicts, non-international in character, affecting several regions, and contributing to a general breakdown of law and order.”

Given the “widespread” human rights violations by militiamen, the tribunal did not consider it necessary to conduct a region by region review and concluded that:

92. … The situation is complex and fast-moving but two features stand out: there is at present a manifest failure of state protection for the ordinary citizen and indiscriminate violence is liable to erupt anywhere, at any time. In the context of this extreme volatility we are satisfied that the cumulative effect of the evidence is such that the article 15(c) test is satisfied.

Indeed, Alison Pargeter’s evidence was that “Libya has been mired in deep crisis” since Gaddafi’s downfall. She said that “the political scene is in complete chaos” and none of the three governments have “any proper authority on the ground.” Endemic violence means that “the security situation is equally catastrophic” and all types of groups and militias are jockeying for position to achieve “control and dominance” in the country.

Pargeter opined that the Libyan Political Agreement (LPA) signed in December 2015, which underpins the current framework for talks, is incapable of survival in its present form. The actors accept this and there is consensus in that regard. She also said highly influential Misratan militias hate Haftar and will not serve in any army headed by him. According to Martin Kobler, the Secretary-General’s Special Representative in Libya, “there is a consensus that amendments are needed.”

Despite its overall findings, the tribunal’s speculation led it to find “grounds for future optimism”. Its analysis in that regard was inspired by bozo British foreign secretary Boris Johnson’s visit to Tripoli (a day after the hearing) to encourage Sarraj and Haftar to put Libyan interests before their own in order to make progress. To mend fences by way of “breakthrough” talks in UAE a week earlier, the pair had spoken after a whole year. But it remains to be seen whether Boris Johnson, who is a massive liar and has inflicted huge damage on the UK by his lies about the benefits of Brexit, is capable of creating calm in the heat of the Libyan desert by extinguishing old enmities between hotheaded Arabs.


Post-Gaddafi Libya is notorious for human trafficking. The country is the most widely used route for the flow of migrants into Europe. It has been dubbed “a human marketplace” where anything goes. As exposed by photojournalist Narciso Contreras misery is abundant and life has very little value.

In imparting guidance, the tribunal considered The Human Conveyor Belt (March 2017) report, by Global Initiative against Transnational Organized CrimeGlobal Initiative against Transnational Organized Crime, which concludes that in Libya human smuggling is “both a criminal problem and a feature of Libya’s fracture into competing armed factions.” The problem feeds on “the political economy and geopolitics of Libya’s Southern, Eastern and Western borders.” The home office just updated its guidance on Libya but bizarrely does not appear to have taken the guidance imparted in the present case on board just as yet; it seems to have conveniently evaded their radar instead.

In Mixed Migration Trends in Libya: Changing Dynamics and Protection Challenges (3 July 2017), a report published after the publication of this country guidance, along with its local partners UNHCR finds that:

Almost all refugees and migrants coming to Libya irregularly seek the help of smugglers or criminal networks, who now charge fees of around US$5,000, just to reach the country. With higher fees and greater volume, the smuggling industry has grown increasingly professional, transnational in reach, and hazardous, with armed groups playing an increasingly dominant role.

Over the years, tens of thousands of people have lost their lives in making the perilous journey in their quest for a better life in Europe. In the first half this year, 85,000 migrants and refugees arrived in Italy across the Mediterranean, which, according to UNHCR is about 20% more than in the first half of 2016. This year’s figure for the dead or missing is 2,030 already.

The highest fatalities are occurring along the Central Mediterranean Route (181,436 arrivals in 2016) which runs through Libya to Italy. The other two routes are the Western Mediterranean Route (via through Morocco to Spain, 4,971 arrivals in 2016) and Eastern Mediterranean Route (via Turkey to Greece, 173,450 arrivals in 2016). Prices for smuggling are on the rise and UNHCR’s study concludes that the Central Mediterranean Route is the most active of the three and that:

Libya is by far the preferred jumping off point for refugees and migrants from Africa hoping to reach Europe; yet it is particularly unsafe.

All sorts of problems such as robbery, discrimination, exploitation, rape, slavery and murder await those using the route but more and more people fleeing persecution and economic hardship just keep coming. Today’s Observer reports that a one in 40 chance of death exists in crossing in a dinghy from Libya to Italy. Using that statistic as a barometer for risk in 2017, if 170,000 people make the journey 4,250 of them will die. The Observer accuses the UK government of free-riding on Germany’s generosity instead of following its example. It concludes that Europe’s overall asylum policy is in tatters and that over the past two years the approach “has evolved from Merkel’s misplaced optimism in we can do this to a shameful out of sight, out of mind”.

The unprecedented nature of the situation has led the president of the European Parliament Antonio Tajani to issue a warning that millions more people would arrive in Europe in the near future. He cautioned European leaders against underestimating the scale of future inward flows of migrants from Africa. Painting an extremely grim picture, he warned of an exodus:

of biblical proportions that would be impossible to stop if we don’t confront the problem now.

When Barack Obama, David Cameron, Nicolas Sarkozy, NATO and their acolytes destroyed Libya under the guise of “liberating” it, they in fact created the migration crisis and also caused untold misery to the people of Libya. We are now told by Trump that western civilisation must show the will to defend itself in a good-versus-evil fight against the extremism of Islamic civilisation.

Like almost all other western leaders, Trump omits to mention the fact the CIA and the west’s Saudi allies are the founders of al-Qaida. In reality, the world is suffering from the blowback of the west’s dirty wars and if anything the “superiority” of western civilisation is very easy to see in the huge civilian death toll in Iraq: or nowadays in Yemen where Saudi and Emirati led military onslaughts using American and British weapons are resulting in countless civilian deaths every day.

Tony Blair urged Gaddafi to escape to a “safe place” but the latter refused to take that advice because Libya could not be recolonised and Islamists could not thrive on Libyan territory. Not on the mad dog’s watch. No chance. Saddam was, of course, much the same and as Arabs both men knew only too well that there are no easy exits in bloody political standoffs. History proved otherwise and even as bloody dictators they felt the need to set the record straight by following some strange code of honour.

Speaking of liars, fourteen years after the Iraq invasion, and a year after the Iraq Inquiry report was published, Sir John Chilcot informs us that Tony Blair was not “straight with the nation” about his decisions about the Iraq War. One thing is dead straight. The death and destruction caused by constant western interference in the Arab world is something western leaders are unlikely to shed any tears over.

About Asad Ali Khan, BA, MSc, MA, LL.B (Hons), LL.M

Senior Partner, Khan & Co, Barristers-at-Law
This entry was posted in Agents, Asylum, European Union, Human Trafficking, Iraq, Islam, Libya, Manchester, Persecution, Politics, Refugee Convention, Terrorism and tagged , , , , , , . Bookmark the permalink.

1 Response to ‘Human Marketplace’: New Libya Country Guidance

  1. mkp says:

    Saddam was not a “free officer”. He was a torturer of Iraqi communists and then a killer of all Iraqis once he became president.

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