England and Wales Court of Appeal (Civil Division) Decisions

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Cite as: [1996] EWCA Civ 927, [1997] Imm AR 137

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JISCBAILII_CASE_IMMIGRATION

LAWRENCE MATU KAGEMA v. SECRETARY OF STATE FOR HOME DEPARTMENT [1996] EWCA Civ 927 (11th November, 1996)

IN THE SUPREME COURT OF JUDICATURE IATRF 96/1205/D

IN THE COURT OF APPEAL (CIVIL DIVISION )

ON APPEAL FROM THE IMMIGRATION APPEAL TRIBUNAL

Royal Courts of Justice

Strand

London W2A 2LL

Monday 11th November 1996

B e f o r e

LORD JUSTICE STUART-SMITH

LORD JUSTICE ALDOUS

LORD JUSTICE WARD

LAWRENCE MATU KAGEMA Appellant

SECRETARY OF STATE FOR THE HOME DEPARTMENT Respondent

(Computer Aided Transcription of the Stenograph Notes of

Smith Bernal Reporting Limited, 180 Fleet Street

London EC4A 2HD

Tel: 0171 831 3183

Official Shorthand Writers to the Court)

MISS JUDITH FARBEY (instructed by Messrs Darbys, Oxford) appeared on behalf of the Appellant.

MR IAN ASHFORD-THOM (instructed by The Treasury Solicitor) appeared on behalf of the Respondent.

J U D G M E N T

(As approved by the court)

©Crown Copyright

LORD JUSTICE STUART-SMITH: Lord Justice Aldous will give the first judgment.

LORD JUSTICE ALDOUS: Mr Lawrence Matu Kagema, the applicant, is a citizen of Kenya. He was born on 10th September 1968. He arrived at Heathrow on 26th February 1995 on a direct flight from Nairobi paid for by his uncle. Upon arrival he claimed asylum. He was interviewed and by a letter dated 24th July 1995 the Secretary of State informed him that he had concluded that the applicant had not established a well-founded fear of persecution in Kenya under the terms of the 1951 United Nations Convention and therefore did not qualify for asylum. His application was therefore refused. The applicant appealed. Miss J.C. Gort, a Special Adjudicator, in her decision dated 31st January 1996 came to the same conclusion and dismissed the appeal. The applicant was granted leave to appeal to the Immigration Appeal Tribunal, but the Tribunal came to the same conclusion and on 29th April 1996 dismissed his appeal. He sought leave to appeal to this court. It was granted and it is that appeal which is before this court for decision.

To succeed in obtaining asylum, the applicant had to establish that he had a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion. Before the Special Adjudicator and before the Tribunal, he contended that he had a well-founded fear of being persecuted both because of race or membership of a particular social group and because of his political opinions resulting from involvement with KENDA. Before us Miss Farbey, who appeared for him, did not suggest that the Special Adjudicator or the Tribunal erred in law in concluding that he had not established grounds for political asylum. Her submissions were confined to what I will call a well-founded fear of being persecuted for ethnic reasons.

The parties accept the findings of fact of the Special Adjudicator. She in her decision accepted the evidence given by the applicant. He is a Kikuyu and they are one of the ethnic groups associated with political opposition to the President of Kenya who is a Kalenjan. The Kikuyu have been the target of ethnic persecution by the Kalenjins who are supported by the Government.

The applicant with his family lived in the Rift Valley. In April 1993 they were attacked by Kalenjins who burnt down their house and drove them off the land. He and his family were given a lift in a van out of the area to a camp organised by the government and run by the Catholic church at Maela. They stayed there until 24th December 1994 when the camp was raided, probably because a demonstration against the Government was being planned for 12th January. What happened was described in Human Rights Watch for Africa, July 1995, in this way: (p. 147)

"In the early hours of the morning on December 24, 1994, administration police and KANU youth wingers raided the camp of Maela where approximately 30,000 people, predominantly of the Kikuyu ethnic group, had sought refuge since October 1993. The police destroyed the camp and the belongings of the displaced were looted and burned. Without notice, government officials razed the camp and forcibly transported some 2,000 of the residents to Central Province (the area regarded as the 'traditional' home of the Kikuyus), and proceeded to question them about their ethnicity and ancestral background. Families were separated as they were herded into trucks. Each truck was crammed with approximately one hundred people. Initially, the displaced were not provided with food or shelter. The forced relocation was done late at night without notification or the participation of UNDP, the government's implementing partner. The trucks used for the forcible removal charged their petrol expenses to a UNDP account (which was later closed by UNDP once this was discovered). The remaining residents were left without shelter."

The applicant with his family was moved to Kirigiti Stadium. On 4th January, the applicant and his family were evicted from Kirigiti Stadium and they found shelter at Kiambu camp run by the Catholic church. They arrived destitute. The applicant was arrested on 8th January but was released the next day with a warning that if he continued to be active in arranging demonstrations against the Government he would be killed. He remained at Kiambu camp until leaving for this country.

The Special Adjudicator held: (p.72)

"The government have actually provided places for the appellant and his family to live, they have not prevented the church from providing the basic necessities. It is not realistic to suppose that in a country such as Kenya all citizens will at all times have employment and a solid house in which to live."

That conclusion was consistent with the applicant's evidence, accepted by the Special Adjudicator, which was recorded in this way (p.61):

"He described how when he had lived in the Kirigiti Stadium he had had to live in a small plastic shelter together with his father and mother, his wife and his child. When they came to the Kirigiti from the Maela Camp on 24 December 1994 they brought with them sleeping equipment but no other belongings and they had no money. Food was provided by church organisations and the Red Cross. When he left Kirigiti for Kiambu they all slept in the church compound and were given similar temporary shelters. Temporary toilets were built."

Miss Farbey submitted that the evidence showed that the applicant had a well-founded fear of persecution because he was a Kikuyu. She drew attention to the expulsion of the applicant from the family land in the Rift Valley, from Maela and from the Kirigiti camp. The result was that he was left destitute. He suffered economic deprivation and exclusion from adequate housing: all that was without justification and at the instance of the Kenyan government. She submitted that the Special Adjudicator and Tribunal had erred in law, even though she accepted the facts as found. They had interpreted the word "persecution" too narrowly. That, she submitted, was apparent from the conclusion reached by the Special Adjudicator which was endorsed by the Tribunal as follows (p.72):

"I am not satisfied that the appellant is in danger of his life if he is returned to Kenya, nor am I satisfied that he would be deprived of his liberty... whilst in some circumstances it is accepted that persecution can include violations of human rights other than life and liberty, in my judgment this is not such a case."

She also submitted that the conclusion reached was wrong in law as it was a conclusion that no reasonable Tribunal could have arrived at.

Mr Ashford-Thom, who appeared for the Secretary of State, submitted that the word "persecution" was an ordinary English word and it was for the Special Adjudicator to decide whether the facts as found amounted to persecution for a Convention reason. The fact that a court might, or would have, come to a different conclusion did not mean that the Special Adjudicator had erred in law. That only arose if this court concluded that the Special Adjudicator's conclusion was unreasonable, in the sense that it was a decision that no reasonable Adjudicator could come to.

That I believe to be correct. It is the approach advocated by Lord Reid in Cozens v. Brutus [1973] AC 854 where the House was asked to consider whether the actions of certain demonstrators amounted to insulting behaviour. At page 861C he said:

"The meaning of an ordinary word of the English language is not a question of law. The proper construction of a statute is a question of law. If the context shows that a word is used in an unusual sense the court will determine in other words what that unusual sense is. But here there is in my opinion no question of the word 'insulting' being used in any unusual sense. It appears to me, for reasons which I shall give later, to be intended to have its ordinary meaning. It is for the tribunal which decides the case to consider, not as law but as fact, whether in the whole circumstances the words of the statute do or do not as a matter of ordinary usage of the English language cover or apply to the facts which have been proved. If it is alleged that the tribunal has reached a wrong decision then there can be a question of law but only of a limited character. The question would normally be whether their decision was unreasonable in the sense that no tribunal acquainted with the ordinary use of language could reasonably reach that decision.

Were it otherwise we should reach an impossible position. When considering the meaning of a word one often goes to a dictionary. There one finds other words set out. And if one wants to pursue the matter and find the meaning of those other words the dictionary will give the meaning of those other words in still further words which often include the word for whose meaning one is searching.

No doubt the court could act as a dictionary. It could direct the tribunal to take some word or phrase other than the word in the statute and consider whether that word or phrase applied to or covered the facts proved. But we have been warned time and again not to substitute other words for the words of a statute. And there is very good reason for that. Few words have exact synonyms. The overtones are almost always different.

Or the court could frame a definition. But then again the tribunal would be left with words to consider. No doubt a statute may contain a definition - which incidentally often creates more problems than it solves - but the purpose of a definition is to limit or modify the ordinary meaning of a word and the court is not entitled to do that."

In the present case the task of the Special Adjudicator was to decide whether the applicant had a well-founded fear of persecution for a Convention reason. It is clear from paragraph 51 of the UNHCR that there is no universal accepted definition of the word "persecution". The Special Adjudicator should therefore have given the word its ordinary English meaning ( R. v. Immigration Appeal Tribunal ex party Jonah [1985] Imm. A.R. 7 at 13). To substitute words from a dictionary would not be appropriate for the reasons given by Lord Reid in Cozens. The Special Adjudicator should then have decided whether the applicant had established a well-founded fear of persecution for a Convention reason, looking at the matter in the round and taking into account all the relevant circumstances ( Ravichandran v. Secretary of State for the Home Dept [1996] Imm. A.R. at 109). It is not for this court to decide whether that decision, being a decision of fact, was right. If the Special Adjudicator properly directed herself, the sole question for this court is whether the decision of fact was one which no reasonable Special Adjudicator could have reached.

In Ravichandran two citizens of Sri Lanka had claimed asylum. They were young male Tamils who had as a group been subject to periodic roundups, arrests and detentions. There was also evidence of ill-treatment when detained, but the Adjudicator found that the applicants did not have a well-founded fear of such ill-treatment if they were sent back. The Court of Appeal upon those facts upheld the decision of the Tribunal which found (p 104):

"Our conclusion is that those Tamils who are rounded up in security checks and operations in and around Colombo are now not likely to be subject to such ill-treatment as to give rise to a well-founded fear of persecution. The excesses of the past have become too well known for the authorities to ignore international pressures, and we find no evidence to suggest that there is other than a strong likelihood that circumstances will continue to improve."

Miss Farbey submitted that the applicant's expulsion from the Rift Valley and his movement from camps at Maela and Kirigiti and the conditions in which the applicant had been forced to live constituted a breach of the 1996 International Convention on Civil and Political Rights and amounted to persecution. She may well be right but we are only concerned with whether the Special Adjudicator erred in law, in particular whether she properly directed herself or whether she arrived at a decision that was Wednesbury unreasonable.

The Special Adjudicator came to these conclusions which I will record using her language:

1. "Whilst there is certainly evidence that the government of President Moi is prepared to use prison as a means of controlling political opposition, for the reasons set out in the preceding paragraph, I am not satisfied that this appellant was of any interest to the authorities on the basis of his political views or activities."

2. "The appellant's evidence was that he and his family were taken in a van driven by a private citizen who was also seeking shelter and they chose to go to Maela camp. In any event, this was a camp provided by the government, and where food and shelter was provided. The appellant's evidence, whilst to the effect that the family were driven out of Kirigiti, nonetheless the Kiambu camp to which they went was provided by the Catholic Church, and again it was a place to which they went voluntarily. Whilst realistically both the Maela camp and the Kiambu camp may have been the only places where the [applicant] and his family could have found shelter and food, there is simply no evidence that they were forced to live in these places compulsorily. Thus, their liberty was not fundamentally restricted by the government."

3. "...whilst the appellant's circumstances in Kenya are without doubt extremely unpleasant, he has at all times had shelter, there has at all times been toilet facilities and at all times food has been provided. He has not been deprived of the basic necessities of life."

4. "The government have actually provided places for the appellant and his family to live, they have not prevented the church from providing the basic necessities. It is not realistic to suppose that in a country such as Kenya all citizens will at all times have employment and a solid house in which to live."

It was upon those basic findings that the Tribunal concluded that the Applicant had not established that he had a well-founded fear of persecution for a Convention reason. That was supported by the Tribunal which held: (page 26)

"With regard to the ethnic aspect of the claimed persecution of the appellant, by his being forced to stay in camps, again, we have given the matter the most careful consideration and have taken full account of the evidence and the submissions made to us. The situation, as we see it, is that while we, just as the Special Adjudicator did, find that the appellant's circumstances are, without doubt, extremely unpleasant, and we are fully cognisant of the fact that the Kenya Government is, at the very least, complicit in the driving out of the Kikuyus from the Rift Valley, nevertheless, on the evidence, it appears to us that the Kenya Government has been, and is, taking every step to house such displaced persons in as good conditions as reasonably possible, in all the circumstances, and that the Catholic Church and international organisations are not being hindered in their assistance to such people, and are being encouraged to assist them, and that the accommodation in the camps is at the least, adequate. Further, while we have taken account of the Articles of the African Charter on Human and People's rights regarding the right of residence and the right to property, we have also taken into account of the situation, generally, in Kenya, where tribal conflicts are a serious problem, and the steps being taken at the Molo talks to try to settle this whole matter of the dispute between the Kelenjins and the Kikuyus in the Rift Valley, and, as we see it, the situation does not indicate that persecution, in the 'Convention' sense, or as defined in Jonah or in Ravichandran, has been, or is being practised."

I have no doubt that the harassment of ethnic groups can amount to persecution. Each case will depend upon the actions taken, their frequency, their extent and their effect. As stated by Simon Brown LJ in Ravichandran, all the relevant facts have to be taken into account and the question has to be looked at in the round.

The question to be decided by the Special Adjudicator was - Does the applicant have a well-founded fear of persecution for a Convention reason? The Special Adjudicator answered that in the negative.

Although it is possible that the applicant has been persecuted, a finding to that effect would not decide the issue in the applicant's favour. The Special Adjudicator had to look to the future to ascertain whether the applicant had a well-grounded fear of persecution. What happened in the past could be persuasive as to what would happen but could not be decisive.

In the present case the applicant, before flying from Nairobi to this country, had lived in Kiambu. On the evidence, food, basic shelter and toilet facilities were supplied for him and his family. It was not a prison and he was free to go to Nairobi and was free to fly out of the country. The Special Adjudicator's decision, that no well-founded fear of political persecution had been established, is not challenged. That being so, there was good reason to conclude that the applicant could live in Nairobi without being persecuted and, if he desired, return to Kiambu to live with his family if they were still there. There was also evidence that a programme of resettlement of those displaced, such as the applicant, was going ahead under the auspices of the United Nations Development Programme and that it was supported by the Kenyan Government, church and other organisations. In those circumstances I cannot accept that it was unreasonable for the Special Adjudicator to come to the decision she did.

I cannot see that the Special Adjudicator erred in her approach and it cannot be said that her decision was a decision that no reasonable Special Adjudicator could have arrived at. There was no error of laws.

I therefore would dismiss this appeal.

LORD JUSTICE WARD: I agree. Although I may well have found that thrice being forcefully displaced from home and camp by agents of the Government could not be anything but persecution, that is not the crucial issue. The issue is whether at the time of the proceedings below the fear was then well-founded. I shall assume for the purpose of this question that the appellant would return to his wife and family in the Kiambu camp as he would reasonably be entitled to do. In the light of the evidence of the programme of resettlement having been put into effect, albeit slowly, the security zones having been lifted, the meeting having taken place between the tribal elders and especially the absence of any evidence from the appellant or his family of any repetition of the upheavals of the past, the Special Adjudicator had ample evidence on which to conclude as she did. Her conclusions on matters of fact cannot be impeached on this court.

So, for the reasons given by my Lord, I too would dismiss the appeal.

LORD JUSTICE STUART-SMITH: I agree with both judgments.

Order: Appeal dismissed;

legal aid taxation for appellant.