19 February 2009
by Phyllis MUNGAI
against the United Kingdom
lodged on 10 November 2008
STATEMENT OF FACTS
The applicant, Ms Phyllis Mungai, is a Kenyan national who was born in 1968. She is currently detained in Yarl’s Wood Immigration Removal Centre in Bedfordshire.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
She entered the United Kingdom on 30 October 2003 and claimed asylum on arrival. The basis of her claim is that she fears her husband and the Mungiki sect, of which her husband is a member. In June 2003, her husband stopped permitting her to attend her Christian church. She claims that he and members of the sect tried to force her to undergo female genital mutilation (FGM). She managed to run away, and went to the police, who told her to come back the next day as there was only one officer on duty when she attended. Her parents told her to speak to her parents-in-law, who took her husband’s side. She went to live with her brother for three weeks, but her husband found her, and so she left the country.
Her claim was refused by the Secretary of State on 12 December 2003. However, the applicant claims that she never received the decision letter. She submitted an application for indefinite leave to remain by e-mail on 22 August 2006, and was served with the letter refusing asylum on 26 September 2006.
The refusal of her asylum claim was based on objective country evidence, which indicated that the Kenyan authorities had consistently acted to curb the activities of the Mungiki sect, and that Kenya had a national plan of action for the elimination of FGM. Statistics showed that the practice was in decline, and that there were areas of Kenya where FGM was not practised at all. It was therefore thought that the national authorities were willing and able to offer protection to the applicant. The fact that she had been told to come back to the police the next day corroborated this finding, as the police had not shown themselves to be unwilling to help her. It was also thought that the applicant could relocate to an area of Kenya where FGM was not prevalent, and so avoid her husband and the Mungiki sect. The fact that her husband had prevented her from attending church did not amount to persecution. It was also noted that the applicant had been inconsistent about what she had done with her passport after arriving in the United Kingdom, and this was thought to undermine her credibility.
The applicant made further representations on 1 November 2006, which were rejected on 3 April 2008 as they were found not to constitute a fresh claim for asylum. She again made representations on 12 August 2008, requesting that her claim be reconsidered in the light of VM v. Secretary of State for the Home Department (VM (FGM-risks-Mungiki-Kikuyu/Gikuyu) Kenya CG  UKAIT 00049) (see relevant domestic law below). Her representations were rejected on 14 August 2008, again because no fresh evidence had been submitted, and the basis of the applicant’s asylum claim remained the same. It was considered that the applicant differed from the appellant in VM because she had family in Kenya who had not supported her husband’s efforts to have her circumcised, and she would be able to seek support and protection from them. The fact that the applicant had been told to return to the police station the next day, but had not done so, was also relied upon for the finding that she had failed to establish that sufficient protection was not available to her.
The applicant sought judicial review of this decision, which was refused on the papers on 8 October 2008, when it was stated that her application was totally without merit and renewal of the application would not constitute a bar to removal. She renewed her application on 15 October 2008, and this application was still pending when Rule 39 was applied. The Court has not been informed of any developments relating to the applicant’s judicial review proceedings since that date.
On 11 November 2008, the Acting President of the Chamber to which the case was allocated decided to apply Rule 39 of the Rules of Court, indicating to the Government that it was desirable in the interests of the parties and the proper conduct of the proceedings that the applicant should not be expelled to Kenya pending the Court’s decision.
Relevant domestic law
1. Primary Legislation
Section 1(4) and 3(2) of the Immigration Act 1971 provide for the making of Immigration Rules by the Secretary of State. Paragraph 353 of the Immigration Rules provides as follows:
“When a human rights or asylum claim has been refused and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and, if rejected, will then determine whether they amount to a fresh claim. The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered. The submissions will only be significantly different if the content:
(i) had not already been considered; and
(ii) taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection.”
2. Country Guidance case of VM
On 14 May 2008, the Asylum and Immigration Tribunal gave its determination in the country guidance case of VM, cited above. The case concerned the appeal of a Kenyan Kikuyu woman, whose asylum claim was based on a fear of the Mungiki sect and her boyfriend, who was the sect’s leader in their village. He and various elders from the sect had tried to inflict FGM on the applicant. She escaped but was later found her at her mother’s house, where she was raped by several of the men, and her mother and sisters were “disappeared”. In allowing her appeal, the Asylum and Immigration Tribunal set out the following guidelines:
“1. It is important to determine whether a Kenyan claimant who fears FGM belongs to an ethnic group amongst which FGM is practised. If so, she may be a member of a particular social group for the purposes of the 1951 Refugee Convention.
2. Uncircumcised women in Kenya, whether Gikuyu/Kikuyu or not, are not, as such, at real risk of FGM.
3. There is evidence that the Mungiki organisation seeks to impose FGM and other forms of violence, on women and children other than those who have been initiated into their sect. In particular, such women and children include the wives, partners, children and other female family members of those men who have taken the Mungiki oath. Insufficient protection is available from the Kenyan authorities for such persons.
4. It may be possible for a woman not wishing to undergo FGM herself, or not wishing her child to do so, to relocate to another community which does not follow the practice of FGM.
5. In general:
Those who practise FGM are not reasonably likely (particularly in urban areas) to seek to inflict FGM upon women from ethnic groups or sub-groups which do not practise FGM;
A women or her child who comes from, or becomes connected by marriage, partnership or other family ties, to an ethnic group (or sub-group) where FGM is practised will be at real risk only if the evidence shows that she is reasonably likely to be required by her parents, grandparents, or by others in a position of power and influence over her, to undergo FGM or allow her child to undergo it.
6. Internal relocation may be available in Kenya to a woman who is at real risk of forced FGM in her home area if the evidence shows: (i) she is not reasonably likely to encounter anyone in the place of relocation who would be in a position of power and influence over her and who would use that power and influence to require her to undergo FGM, or would cause her presence in the place or relocation to become known to such a person or persons (e.g. the Mungiki); and (ii) that the relocation is reasonable taking into account all the relevant factors including the religious and cultural context, the position of women within Kenyan society and the need for kinship links in the place of relocation in order to sustain such movement successfully. In particular, in the case of a woman from a rural area in Kenya, internal relocation to some other region or urban centre will not be available unless her circumstances are such that she will able to survive economically (see Januzi v. Secretary of State for the Home Department and others  UKHL 5).
7. This guidance supersedes that in FK (FGM – Risk and Relocation) Kenya CG  UKAIT 00041.”
The applicant complains that if returned to Kenya, she would be at real risk of ill-treatment contrary to Article 3 of the Convention and/or a violation of Article 2 of the Convention.
QUESTION TO THE PARTIES
Would the applicant’s removal to Kenya violate Article 2 and/or Article 3 of the Convention? In particular, the Government are requested to comment on the applicant’s case in the light of the determination of the Asylum and Immigration Tribunal in VM v. Secretary of State for the Home Department (VM (FGM-risks-Mungiki-Kikuyu/Gikuyu) Kenya CG  UKAIT 00049).