England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
(MR JUSTICE HENRIQUES)

		Royal Courts of Justice Strand London, WC2
		15th June 2005

1. LADY JUSTICE ARDEN: This is a renewed application for permission to appeal from the order of Henriques J dated 10 February 2005, dismissing the appellant's application for judicial review for refusal of the Immigration Appeal Tribunal, dated 9th January 2002, to give permission to appeal from the decision of the adjudicator, dismissing his claim for asylum.
2. The appellant is a homosexual by orientation and he had a partner, Mr Waitutu, who was lynched and killed by a mob in his village in April 1999. The appellant then fled his village and stayed with his uncle and ultimately fled Kenya and entered the United Kingdom. The adjudicator was satisfied that the appellant had a well-founded fear of serious harm for a Convention reason of membership of a particular social group and he held that there was in general a sufficiency of protection, but with relevance to the particular circumstances of the appellant that there was not a sufficiency of protection. This last conclusion was based on the Kenyan Penal Code, which outlaws homosexual behaviour toward men. Moreover, the police were not helpful to the appellant when he reported the death of Mr Waitutu, and the police did not respond to the appellant's request for protection. For those reasons, the adjudicator held that there was not a sufficiency of protection for the appellant in the light of his own particular circumstances.
3. I should say the adjudicator also said that, while homosexual conduct was criminalised in Kenya, it did not lead to prosecution unless there was some other offence involved. That appears at paragraph 16 of the adjudicator's decision.
4. The adjudicator then considered whether there were other areas in Kenya in which the appellant could safely live and concluded that the appellant did not have a well-founded fear of persecution in other parts of Kenya (see paragraph 30 of adjudicator's decision):

"I find that the appellant does not have a well-founded fear of persecution in other parts of Kenya. I now provide my reasons. First, I consider that the appellant is a discreet and quiet individual and not a person who publicises or brings to the attention of others his sexual orientation. He attempted to keep his homosexuality a secret at school. He attempted to keep his sexuality a secret after he returned to his home area. He was very ready to leave places of refuge as soon as rumours concerning his sexuality reached those areas. He did not wait for further threats to be issued or attacks to take place. He simply moved on. If the appellant was to be returned to another part of Kenya I find that he would live his life quietly and would practise his homosexuality discreetly. He would not publicise his sexual orientation or take steps to bring it to the attention of others. Second, the appellant was not persecuted outside his home area. On the evidence and on my findings he chose to move on when rumours concerning his sexuality reached his place of refuge. He did not suggest that either the mob or his close family members came to any of the villages in which he sought refuge. On my findings of fact, although he lived in Nakuru between June 1998 and January 2000, his close family members did not attempt to find him or to hurt him. They confined their actions to the issue of threats against his uncle. It is also to be borne in mind that the appellant's family comprise his parents and three siblings. I consider that there is a limit to the unpleasant actions which they have within their capacity to perpetrate towards the appellant. Third, on the evidence and on my findings, the appellant was a practising homosexual in the places of refuge at which he stayed. Nevertheless, he did not suggest in his various sources of evidence that he encountered difficulties, let alone harassment or persecution, at the hands of the local populace in any of those places. He was asked during evidence-in-chief (page 6 of the Record of Proceedings), "you sad you had practised your homosexuality in other parts". He replied, "yes, I tried to stop but I would do so." The appellant was able to practice his homosexuality and, as I find, practise it discreetly, in the places of refuge at which he stayed between April 1998 and January 2000. Fourth, the appellant could not expect to receive antagonistic or strong antagonistic feelings let alone harassment or persecution by the state or the organs of the state. Again, I have in mind that part of paragraph 5.25 of the Assessment which comprises a statement to this effect. Fifth, the actions of his close family members after he left his home area were confined to the issuing of threats. They did not attempt to implement their threats. Sixth, the mob which had pursued the appellant while he remained in his home area did not undertake steps to ascertain his whereabouts or to harm him after he left his home area. Seventh, I have borne in mind that a part of the reasoning which led to the appellant's decision to leave Kenya was his uncle's concern that his family had rejected him. While I am prepared to accept that the continuing hostility of his family played a part in his uncle's decision made on his behalf, it was by no means the only reason which motivated his uncle. Eight, although the appellant attempted to relocate in Kenya, he was able to relocate only in areas which were proximate to his home village. I fully accept his reasons for so doing. It was a question of finding somewhere to stay in which he could be safe. On the evidence and on my findings, the appellant did not stay a distance further than 50 kilometres from his home area. He said under cross-examination (page 14 of the Record of Proceedings) that his uncle lived about 50 kilometres from his parents. He was asked (page 14 of the Record of Proceedings), "in the two or three places you stayed at, what was the furthest you stayed at." He replied, "50 kilometres." The fear which the appellant entertains is from his close family members and the mob. However, the mob did not take steps to find him after he left his home area. His close family members, although they issued threats which reached him in Nakuru, did not take steps to find him after he left his home area. Their antagonism manifested itself after his departure from his home area in causing or contributing to the circulation of rumours about his sexuality which reached his places of refuge. I find that the appellant would be safe if he lived in a part of Kenya rather more removed from his home area than Nakuru. He could live in a large town or city such as Nairobi. I have borne in mind the contents of paragraph 2.1 of the assessment. Kenya is a large country. It comprises a total area of 2,224,081 square miles. It is relatively well populated. The 1999 population census assessed the population at 28.7 million. I find that the appellant does not have a well-founded fear of persecution if he moved o a part of Kenya more distant than Nakuru."

5. It would be noted that paragraph 30 of the adjudicator's decision is careful and reasoned and contains a number of reasons. In particular, it relied on the appellant's evidence given at the hearing and also on the findings that the appellant's fear was from his close family members and the mob, and that the mob did not take steps to pursue him after he left his home area. The appellant, he found, moved on from his place of refuge when rumours reached him at his place of refuge.
6. For all the reasons given at paragraph 30, the adjudicator found the appellant would be safe if he lived in another part of Kenya other than his home area, Nakuru. The evidence he cited elsewhere was that the appellant had not moved further than 50 kilometres from his home village. The adjudicator noted how large a country Kenya was.
7. Before the judge, the appellant has submitted that he would have a well-founded fear of persecution and he would have to amend his behaviour and life in Kenya to such a degree as to deny his identity.
8. It is also noted that the appellant submitted that he would have a well-founded fear of persecution notwithstanding the adjudicator's findings because of his experience in Kenya where, as I have said, his partner was attacked and brutally murdered.
9. The judge gave a careful judgment in which he held that the adjudicator had given adequate reasons for his conclusion, namely that the appellant was discreet in his behaviour and could therefore live in Kenya without drawing attention to his sexuality. He also held that the adjudicator gave adequate reasons as to why the appellant could relocate elsewhere and rejected the appellant's first submission that the adjudicator's conclusion meant the appellant would have to adjust his behaviour. The judge observed that modification of the appellant's conduct was never suggested by the adjudicator and the judge held that he was satisfied the adjudicator had properly found that the appellant could live safely in Kenya.
10. On this renewed application, Ms Francis Webber, assisted by Mr David Chirico, who appeared below, submits that the adjudicator has not considered what would happen if the appellant was returned to Kenya and relocated and if, despite his discreet behaviour, it became known that he was a homosexual. Ms Webber submits that the appellant's case was that he always had to move on when rumours caught up with him and the adjudicator was not summarising the evidence correctly when he said, in the middle of paragraph 30, that the appellant was able to practise his homosexuality and to practise it discreetly and that he was able to do so between April 1998 and January 2000. Ms Webber pointed out that the appellant's partner, Mr Waitutu, was murdered and by the end of the period, the appellant had left Kenya and come to the United Kingdom. But as to that, there is a clear finding of fact that the fear which the appellant entertained was from his close family members and the mob, and moreover the mob did not pursue him after he left his home area.
11. The adjudicator's finding is that the appellant would be able to move well away from his home area to live peacefully and without harm, practising his homosexuality in the way that he had done in the past, that is discreetly. In those circumstances, in my judgment, there is no prospect of success on appeal. The adjudicator's findings on that point are clear.
12. Ms Webber draws the analogy of a paedophile in the United Kingdom who moves from one area of the United Kingdom to another and is still the subject of derision and hatred when his paedophilia is discovered in the area to which he has moved, which may be far away from where he originated. In my judgment that is not a true analogy because it depends on the state of hatred being the same throughout the country and the adjudicator's findings are that that is not so with respect to homosexuality in Kenya. To some extent, on the adjudicator's findings, homosexuality is tolerated: see for instance the adjudicator's findings in paragraph 16 about prosecution under the criminal law for homosexual conduct.
13. I now turn to the convention submission. Ms Webber submits that, in effect, the adjudicator failed to consider the appellant's sexuality, and whether under the refugee convention the appellant could be properly be required to move to another district where he could practise homosexuality if he behaved discreetly. Ms Webber submits that the adjudicator failed to consider whether the discreet conduct was forced upon the appellant. I would reject this submission on the adjudicator's findings, particularly bearing in mind that there was no evidence that the appellant had done anything other than practise his homosexuality discreetly, even before any extensive persecution. Ms Webber could provide no explanation why the appellant's fear was limited to that of his family and the mob.
14. For all these reasons, despite Ms Webber's careful submissions, assisted by Mr Chirico, I refuse this application.

Order: Application refused. Detailed assessment of appellant's funds given.