ar         RM (Sufficiency of Protection-IFA-FGM) Kenya CG [2004] UKIAT 00022 

IMMIGRATION APPEAL TRIBUNAL

Heard at Field House 			
On : 20 January 2004                                              Date Determination notified
Prepared: 21 January 2004                                              12th February 2004

Before:

Mr H J E Latter (Chairman)
Mrs J Harris

Secretary of State for the Home Department 
APPELLANT

and

	RESPONDENT

Representation
For the appellant :     	Mr M. Blundell, Home Office Presenting Officer 
For the respondent :    	Ms B. Temple, of Counsel

DETERMINATION AND REASONS

1.	The Secretary of State appeals against the determination of an Adjudicator, Mr R.A. Cox, who allowed the respondent's appeal on both asylum and human rights grounds against a decision made on 11 February 2003 refusing to grant her asylum, but granting exceptional leave to remain until 26 October 2004, the day before her eighteenth birthday. In this determination the Tribunal will refer to the respondent to this appeal as the applicant.  

2.	The applicant is a citizen of Kenya, born on 27 October 1986. She claims to have arrived in the United Kingdom on 27 September 2002 accompanied by an agent who provided her with documentation to enable her to enter.  She was abandoned by her agent but was found by the police on 23 September 2002. She claimed asylum on 1 October 2002.

3.	Her claim can briefly be summarised as follows. Her problems began in 2000 when her father joined the Mungiki sect. At that time both she and her sister were still in school. He stopped her attending church and became very aggressive.  In July 2000 he came home with twenty other members of the sect and forcibly performed female circumcision on her mother.  Seven days later her mother died as a result of her injuries. Shortly afterwards her father married a woman who was also a member of the Mungiki sect. He insisted that both the applicant and her sister should be circumcised but they flatly refused. Five members of the sect came to their home and both the applicant and her sisters were attacked. Her sister was beaten and the applicant was raped. Shortly after this ordeal her father managed to trick her sister into leaving with him. They returned. Her sister was bleeding and her father was carrying a knife covered in blood. The applicant was told that she would be next.  

4.	Her father insisted that the applicant should be circumcised. He threatened to perform the operation there and then but she was able to escape and leave home  running to her uncle’s house for safety.  Her father knew where she had gone and came over to the uncle’s house threatening to kill him if he did not hand the applicant over.  Her uncle introduced her to members of a church and they raised the money to buy a ticket for her to leave. The applicant was taken by a man called John who accompanied her to the United Kingdom.

5.	Her account of events was not challenged up to the attack on her by her father with a view to carrying out FGM.  The Adjudicator rejected the applicant's evidence given orally at the hearing that she had reported the matter to the police but they had not taken any action. He also did not believe the evidence that the applicant's father had come on almost a daily basis to her uncle’s house threatening to recover her but had not in fact taken any physical action. 

6.	The Adjudicator accepted that the applicant had remained at risk from her father and the Mungiki up to the time of her flight from Kenya and that she had a genuine and well-founded fear of them. He went on to consider whether the 1951 Convention was engaged.  He was satisfied that the applicant was a member of a particular social group which the Adjudicator identified as women in Kenya and particularly Kikuyu women under the age of sixty-five. They had immutable characteristics of age and sex which existed independently of persecution and the group as a whole was not defined by persecution.  He went on to consider the issue of state protection and concluded that protection for this particular applicant would be neither adequate nor effective.  He found that relocation would be unreasonable and unduly harsh.  The applicant was only sixteen.  The Mungiki were to be found more or less throughout Kenya and she had no relatives elsewhere.  There was no particular person to protect her. There were only limited child care facilities in Kenya and many calls on their services from thousands of AIDS orphans becoming homeless. The appeal was allowed on both asylum and human rights grounds.  

7.	In the grounds of appeal  two issues were raised. The first is whether the Adjudicator was right to find that the applicant was a member of a particular social group and secondly, whether he was right to conclude that state protection against the risk of forcible FGM would not be available to the applicant in Kenya. At the hearing before the Tribunal Mr Blundell referred us to the Tribunal determinations in Muchomba [2002] UKIAT 01348, Hashim [2002] UKIAT 02691 and Adhiambo [2002] UKIAT 03536.  The Tribunal also referred to Indrakumar [2003] EWCA Civ 1677, a judgment of the Court of Appeal.  Mr Blundell sought permission to amend the grounds of appeal to include an argument relating to the issue of internal flight.  This was opposed by Miss Temple. In our judgment it is too late for this issue to be raised. It should have been raised in the Secretary of State's grounds of appeal or at the very least an application should have been made in writing before the day of the hearing.

8.	It was Mr Blundell’s submission that the Adjudicator had erred in his assessment of whether the applicant was a member of a particular social group. He had declined to follow Muchomba.  Mr Blundell accepted that the reasoning in Muchomba may be susceptible to criticism and he relied on the reasoning in Adhiambo and Hashim.  It was argued before the Adjudicator that the social group was either Kenyan women under the age of sixty-five or Kenyan Kikuyu women: see paragraph 18 of his determination.  The reality was that the group could not be defined without reference to the feared persecution.  This appeared from paragraph 20 of the Adjudicator's determination where he accepted that there was a social group of women in Kenya, particularly women under the age of 65, of whom the applicant was a member.  He accepted that they had immutable characteristics of age and sex which existed independently of persecution and that the group was not defined by persecution, but then he commented that nonetheless it may be identified by reference to their liability to undergo FGM particularly if they were members of or related to members of the Mungiki sect.  In Adhiambo the Tribunal had assessed the country information in relation to Kenya and found that it did not support the contention that there was a particular social group defined either as Kikuyu women or women who faced FGM.  There was no evidence to show that Kikuyu women were discriminated against or at any greater risk than women in general. 

9.	Miss Temple submitted that the Tribunal should be slow to interfere with an exercise of judgment by an Adjudicator and should only interfere if the judgment was plainly wrong or unsustainable. The Adjudicator had considered the judgment of the House of Lords in Shah and Islam [1999] ImmAR 283. He had not been bound by the decision of the Tribunal in Muchomba. The Tribunal in Muchomba had confused persecution with the concept of having an immutable characteristic when it commented that, because all members of the group would not be forced to undergo FGM as many would undergo it voluntarily, this would prevent the group having an immutable characteristic.  She referred the Tribunal to Yake [2000] 00/TH/00493 and Kasinga [1996] the US State Department Report of Immigration Appeals interim decision 3278 where the social group identified was young women of the Tchamba-Kunsuntu tribe who have not had FGM as practised by the tribe and who were opposed to it.  This decision was followed in Yake where it was defined as a Yopougun women who may be subjected to FGM. Miss Temple submitted that the social group was correctly identified as either Kenyan women or Kikuyu women under the age of sixty-five.

10.	The Adjudicator did not follow Muchomba because he was not satisfied by the reasoning that the fact that some members of the proposed social group would undergo FGM voluntarily would rule out the existence of a particular social group. The Tribunal agree that the Tribunal's reasoning was flawed. The Adjudicator was right to comment as he did in paragraph 19 of his determination that the fact that some Kikuyu women voluntarily submit to FGM was irrelevant to the existence or otherwise of the social group. However, that leaves open the issue of whether Kenyan or Kikuyu women under the age of sixty-five can properly be categorised as a social group.

11.	In Shah and Islam the House of Lords held that the social group had to exist independently of the persecution so that persecution alone could not be relied on to prove the group’s existence. However, cohesiveness was not an essential requirement of the group.  Looking at the situation of women in Pakistan, women were discriminated against as a group in matters of fundamental human rights. The state gave them no protection because they were perceived as not being entitled to the same human rights as men, and in these circumstances, the applicants in those appeals could be regarded as belonging to a particular social group even if more narrowly defined than by the unifying characteristics of gender, of being suspected of adultery and of lacking protection from the state and public authorities. Even though all members of the group were not persecuted, the fear of persecution was sanctioned or tolerated by the state and was for reasons of membership of the particular social group.

12.	In the speech of Lord Hoffmann at page 1033 he said:- 

‘To what social group, if any, did the appellant belong?  To identify a social group one must first identify the society of which it forms a part. In this case the society is plainly that of Pakistan. Within that society, it seems to me that women form a social group of a kind contemplated by the Convention.  Discrimination against women in matters of fundamental human rights on the grounds that they are women is plainly in pari materiae with discrimination on the grounds of race. It offends against their rights as human beings to equal treatment and respect.’  What constitutes a particular social group in a particular country is a question of fact to be considered on a case by case basis. 

13.	The Adjudicator was not referred to the Tribunal’s determination in Adhiambo which was an appeal by a member of the Kikuyu tribe against a threat of FGM because of membership of the Mungiki cult. In that determination the Tribunal viewed the background evidence and came to the following conclusion:

’23. On a balanced assessment of the Country Information before us it is clear that whilst there are some similarities between Kenya and Pakistan, there are greater differences.  The US State Department Report shows serious problems of rape and domestic violence, which are often unreported because of the widespread belief that the perpetrators will not be punished.  However, Kenya has agreed to be bound by international human rights standards. Police regard domestic violence against women as a family matter not as a crime. But they are being trained in gender issues. A domestic violence bill has been published and there are a number of active women NGOs. The overall picture does not show that women in Kenya are unprotected by the state to the same extent as Pakistan. It shows that there is real progress in reducing institutionalised discrimination against women, still some toleration of discrimination but very little discrimination which is positively sanctioned by the state.  A good example, particularly relevant  to this appeal, is that there has been a presidential decree banning FGM.  For this purpose we do not accept Miss Fisher’s submission that a presidential decree is in any way inferior to an act of parliament. 

24.   The evidence does not support a particular social group defined as either “Kikuyu women” or “women who face FGM”. There is no evidence to show that Kikuyu women are discriminated against or at any greater risk that women in general. As to women who face FGM, whilst the Country Information shows that it is still widely practised, there is clearly an improvement, exemplified by the presidential decree to which we have referred.

25.   We find that the respondent does not belong to a particular social group. She has not established a Convention reason and for this reasons her Refugee Convention appeal must fail. However, her Article 3 is not dependent on a Convention reason.’

14.	Miss Temple argues that the factual matrix in Muchomba and Adhiambo cannot be relied on. The evidence before those tribunals was that only 169 girls suffered FGM in December 1999 compared with 1200 girls during the same month in the previous four years.  In the 2003 US State Department Report there is reference to 1300 girls undergoing FGM in Marakewet in December 2001 in sharp contrast to the figures for 1999.   The Tribunal are not satisfied that the extent of the practice of FGM in the context of the situation in Kenya affects whether or not a social group exists any more than the fact that some members of the proposed group voluntarily submit to this practice. The fact that the number of cases of FGM has increased is confirmed by an expert report from Dr Aguilar dated 9 January 2004.  This deals with the historical developments of the Mungiki movement suggesting that the Mungiki have reasonable political influence in Kenya and the practice of FGM has been widespread due to the search for Kikuyu indigenous practices among the Mungiki followers. 

15.	It is estimated that the Mungiki have between 1.5/2 million followers including 400,000 women.  During the ethnic clashes from 1991 to 1998 the Mungiki administered personal oaths to its members to promise to fight to defend the Kikuyu, their land and their customs.  In this context radical members implemented the practice of FGM as a systematic practice to challenge the laws of Kenya and exercise power and control over Kikuyu women.  The report confirms that there is provision in Kenyan law to protect women threatened with FGM but due to corruption amongst the police and the lack of local human rights in security shelters women are at risk and have to flee their local areas. The courts are not proactive in protecting women and implementing the law so the numbers of FGM have increased since FGM was banned in Kenya.

16.	The Tribunal are not satisfied that this evidence indicates that within society in Kenya there is either a social group of Kenyan or Kikuyu women under the age of sixty-five. The risk does not arise from being a woman or a Kikuyu woman but from being a member of or closely related to a member of the Mungiki movement. The appellant does not claim herself to be a member of the Mungiki movement. The risk to her arises from the fact that her father wanted her to undergo FGM. 

17.	The Tribunal were referred to the determination in Yake and the decision in Kasinga.  Although the Tribunal in Yake referred to the judgement of the House of Lords in Shah and Islam, the Tribunal are not satisfied that there was any proper analysis of how the social group identified would be regarded in the particular society, in that appeal, the Ivory Coast.  In any event, the social group as defined included within it a reference to the feared persecution: a Yopougun woman who may be subjected to FGM.  This ignores the point in Shah and Islam that the social group has to exist independently of the persecution. The same criticisms can be made of the social group defined in Kasinga.  

18.	The Tribunal is satisfied that the reasoning in Adhiambo is to be preferred.  We agree with the Tribunal's reasoning in that appeal. We are not satisfied that there is any change in the background situation which would justify us taking a different view. It follows that the Tribunal is not satisfied that the social group identified by the Adjudicator can properly be regarded as a ‘particular social group’ within the meaning of the Convention. 

19.	In these circumstances the Tribunal are not satisfied that the applicant’s fears arise by reason of her membership of a particular social group and her claim therefore falls outside the 1951 Convention. The Tribunal need not deal with the argument as to whether state protection would be available to the applicant nor as the matter is not raised in the grounds of appeal whether the applicant could relocate in safety elsewhere in Kenya.  

20.	The appeal was also allowed by the Adjudicator on human rights grounds.  Both Mr Blundell and Ms Temple agreed that the Adjudicator erred in doing so.  The decision under appeal was a decision to refuse asylum but to grant exceptional leave to remain until 26 October 2004. In these circumstances it could not be argued that in taking this decision the Secretary of State acted in breach of the applicant’s human rights.   The grant of exceptional leave gives her the protection she may well require at the present time under the Human Rights Convention and the position will be reviewed on the facts prevailing at the time if an application is made for further leave to remain.

21.	For the reasons the Tribunal have given, the Secretary of State’s appeal is allowed on both asylum and human rights grounds.

H.J.E. LATTER
VICE PRESIDENT