OPERATIONAL GUIDANCE NOTE Libya OGN v6 Issued 05 August 2011 OPERATIONAL GUIDANCE NOTE Libya CONTENTS 1. Introduction 1.1 – 1.3 2. Country assessment 2.1 – 2.12 3. Main categories of claims 3.1 – 3.5 General security and humanitarian situation 3.6 – 3.6.17 Political/Islamic opposition groups 3.7 – 3.7.9 Military service 3.8 – 3.8.10 Gaddafi clan members/loyalists fearing rebels 3.9 – 3.9.12. Women 3.10 – 3.10.17 Prison Conditions 3.11 – 3.11.12 4. Discretionary Leave 4.1 – 4.2 Minors claiming in their own right 4.3 Medical treatment 4.4 – 4.4.6 5. Returns 5.1 – 5.5 1. Introduction 1.1 This document provides UKBA case owners with guidance on the nature and handling of the most common types of claims received from nationals/residents of Libya, including whether claims are or are not likely to justify the granting of asylum, Humanitarian Protection or Discretionary Leave. Case owners must refer to the relevant Asylum Instructions for further details of the policy on these areas. 1.2 Case owners must not base decisions on the country of origin information in this guidance; it is included to provide context only and does not purport to be comprehensive. The conclusions in this guidance are based on the totality of the available evidence, not just the brief extracts contained herein, and case owners must likewise take into account all available evidence. It is therefore essential that this guidance is read in conjunction with the relevant COI Service country of origin information and any other relevant information. COI Service information is published on Horizon and on the internet at: http://www.homeoffice.gov.uk/rds/country_reports.html 1.3 Claims should be considered on an individual basis, but taking full account of the guidance contained in this document. In considering claims where the main applicant has dependent family members who are a part of his/her claim, account must be taken of the situation of all the dependent family members included in the claim in accordance with the Asylum Instruction on Article 8 ECHR. If, following consideration, a claim is to be refused, case owners should consider whether it can be certified as clearly unfounded under the case by case certification power in section 94(2) of the Nationality Immigration and Asylum Act 2002. A claim will be clearly unfounded if it is so clearly without substance that it is bound to fail. 2. Country assessment 2.1 Caseowners should refer to the relevant COI Service country of origin information material. An overview of the country situation including headline facts and figures about the Page 1 of 21 Libya OGN v6 Issued 05 August 2011 population, capital city, currency as well as geography, recent history and current politics can also be found in the relevant FCO country profile at: http://www.fco.gov.uk/en/travel-and-living-abroad/travel-advice-by-country/country-profile/ 2.2 An overview of the human rights situation in certain countries can also be found in the FCO Annual Report on Human Rights which examines developments in countries where human rights issues are of greatest concern: http://centralcontent.fco.gov.uk/resources/en/pdf/human-rights-reports/human-rights-report-2009 2.3 Case owners are reminded that any country information and specific country policy guidance contained within this document is based upon information available at the time of publication. Due to the continuing conflict prevailing within Libya, and the volatile nature of events there, case owners must consider the latest available COI Service bulletins and other COI products before determining asylum claims. Any questions about the handling of a particular case should be referred to a senior case worker. For additional queries relating to country specific policy, contact the CSL Team. 2.4 Actors of protection. Caseowners must refer to the Asylum Policy Instruction on considering the protection (asylum) claim and assessing credibility. To qualify for asylum, an individual not only needs to have a fear of persecution for a Convention reason, they must also be able to demonstrate that their fear of persecution is well founded and that they are unable, or unwilling because of their fear, to avail themselves of the protection of their home country. Caseowners should also take into account whether or not the applicant has sought the protection of the authorities or the organisation controlling all or a substantial part of the State, any outcome of doing so or the reason for not doing so. Protection is generally provided when the authorities (or other organisation controlling all or a substantial part of the State) take reasonable steps to prevent the persecution or suffering of serious harm, for example, by operating an effective legal system for the detection, prosecution and punishment of acts constituting persecution or serious harm, and the applicant has access to such protection. 2.5 There are no fully functioning governmental or civil authorities in Libya at the present time, however, the UK Government and other members of the international community have recently recognised the National Transitional Council as the sole governing authority in Libya. It remains unclear whether or not they are yet capable of providing reasonable protection to vulnerable persons, or of taking steps to prevent harm to vulnerable people. Col. Gaddafi and those members of his regime who have remained loyal are currently embattled, and unable to exercise control over large parts of the military and security forces, or of the country generally. In Tripoli and the surrounding areas, where Col. Gaddafi and his regime remain the nominal authority, they have been experiencing a sustained NATO air bombardment since March 2011, and are unable to ensure the safety of citizens loyal to the regime. There is increasing evidence to indicate that the Gaddafi regime has less control of some western towns, i.e. Misrata and Yefren since the NATO air strikes began, however fighting continues in these towns.1 In June, the BBC Correspondent in Tripoli reported that according to opposition activists, the level of anti-Gaddafi opposition in Tripoli is extensive throughout the city, but that people are suffering intimidation and violence from forces loyal to Gaddafi. Consequently, open opposition is minimal as people (according to reports) are too afraid to speak out.2 2.6 In the areas currently being fought for by the rebels, the situation remains volatile. In western areas particularly Misrata and Zlitan, all towns bordering Tunisia, and also the landlocked Nafousa mountains, there has been heavy fighting and shelling, and there is no functioning civil authority. However, William Hague (UK Foreign Secretary) stated that steady progress is occurring, particularly around Misrata, Brega and Jebel Nafousa where 1 Reuters Newsdesk 3 June 2011: Gaddafi losing control of western towns 2 BBC News - Libya Crisis: Anti-Gaddafi activists speak out in Tripoli Page 2 of 21 Libya OGN v6 Issued 05 August 2011 the opposition is driving Gaddafi‟s forces back.3 The situation is more stable in Benghazi, in eastern Libya. There, the National Transitional Council (NTC) has gained control, and despite shortages of essential supplies, conditions are relatively safe. The NTC comprise many different strands, including defected ex-Gaddafi loyalists. A spokesperson for the NTC indicated that there is still uncertainty between the different elements, but that evidence suggests there is a tendency towards the majority of people losing faith in Gaddafi and turning to the rebel side.4 The NTC have been visited in Benghazi by a number of representatives of foreign governments, and there are ongoing discussions aimed at assisting the NTC in setting up a new government and infrastructure following resolution of the current crisis. Most of the international community have expressed support and encouragement for the NTC, whilst emphasising the need for Col. Gaddafi to step down.5 2.7 In July 2011, US officials held talks with representatives of Col. Gaddafi‟s government, reportedly in Tunisia. According to US representatives, the meeting repeated demands for Col. Gaddafi to step down, and no negotiations took place. A spokesman for the Libyan government (Mr Moussa Ibrahim) said they supported dialogue with the US, providing it was free from any preconditions. Mr Ibrahim stated that they would “discuss anything”, but the Libyan people must decide their own future.6 On 27 July, Foreign Secretary William Hague announced that the UK Government will recognise and deal with the NTC as the focal point and sole governmental authority in Libya. He referred to the increasing legitimacy, competence and success of the NTC and its commitment to an inclusive political process.7 2.8 Due to the prevailing situation of civil war and violence in Libya, some applicants may seek to establish a claim to protection due to serious and individual threat to their life (as a civilian) or person by reason of indiscriminate violence in situations of international or internal armed conflict, under paragraph 339C of the Immigration Rules (Article 15(c) of the Qualification Directive). Case owners are advised to consider such claims according to the legal test set out in Elgafaji (below) and further clarified by QD (Iraq) below. 2.9 Internal relocation. Caseowners must refer to the Asylum Instructions on both internal relocation and gender issues in the asylum claim and apply the test set out in paragraph 339O of the Immigration Rules. It is important to note that internal relocation can be relevant in both cases of state and non-state agents of persecution, but in the main it is likely to be most relevant in the context of acts of persecution by localised non-state agents.