England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE IMMIGRATION APPEAL TRIBUNAL
HX05078-04

		Royal Courts of Justice Strand, London, WC2A 2LL
		31st January 2006

Lord Justice Wilson:

1. The appellant appeals on a point of law, with the permission of the Immigration Appeal Tribunal, from a decision of that tribunal dated 17 January 2005. By its decision, the tribunal reversed the determination of an adjudicator that, were the Secretary of State, the respondent to this appeal, to return the appellant to Kenya, the country of her nationality, he would be infringing her rights under Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950. In appealing to the tribunal against that determination, the Secretary of State took only one point, namely that the adjudicator had perpetrated an error of law in relation to the possibility of internal relocation. The adjudicator had found that it was "not an option" for the appellant to return to any other part of Kenya than the part in which she had previously resided. The decision of the tribunal was that in that regard the adjudicator had erred; that there was no need to remit the issue for further consideration by the adjudicator; that the appellant had "a viable internal flight alternative"; and that therefore the Secretary of State would not be in breach of his obligations under the Convention of 1950 in returning her to Kenya. From that decision the appellant appeals, contending first that the adjudicator made no error of law in respect the issue of internal relocation and that accordingly his determination should not have been set aside; and alternatively that, if he did make an error of law, the tribunal itself also perpetrated an error of law in its own determination of the same issue.
2. The appellant travelled to the U.K. from Kenya in August 2002 and claimed asylum. In refusing her claim for asylum and for humanitarian protection by letter dated 11 February 2004, the Secretary of State explained that he did not accept her account of the events in Kenya which had led her to coming to the U.K. At the hearing of her appeal before the adjudicator, the appellant was represented; but, as a result, apparently, of a shortage of Presenting Officers, the Secretary of State was not represented. Having received her oral as well as written evidence, in addition to which he had before him a report from a consultant psychiatrist, other medical and analogous professional evidence about her and objective evidence about relevant circumstances in Kenya, the adjudicator, by contrast, did accept the appellant's account of what had happened to her in Kenya. Following his determination the matter has proceeded upon the basis that the appellant's account is true.
3. The appellant is a member of the Kikuyu tribe and is now 31 years old. She was brought up in a village about 30 miles outside Nairobi and ran a business selling clothes. In 2000 she began to cohabit with her boyfriend. Shortly thereafter he began to show an interest in the notorious Mungiki sect. There was a mass of objective evidence before the adjudicator about the Mungiki. The adjudicator summarised it as follows:

"the Mungiki is a cultural and political movement based in part on Kikuyu ethnic traditions which are controversial in mainstream Kenyan society. The CIPU Report, describes the organisation as small [but] the Appellant produces a considerable amount of background material which suggests that it is larger and more powerful than suggested by the CIPU Report. Its leadership claims to have 2 million members."

The adjudicator accepted that a BBC news report dated 11 February 2003 provided a reasonably accurate picture of the sect. The report stated:

"Their holy communion is tobacco-sniffing, their hairstyle that of the Mau Mau dreadlocks and the origin of the sect is still shrouded in mystery.

Since the late 1990's, the sect has left behind a trail of blood in its rejection of the trappings of Western culture. … Inspired by the bloody Mau Mau rebellion of the 1950's against the British colonial rule, thousands of young Kenyans – mostly drawn from Kenya's largest tribe, the Kikuyu – flocked to the sect whose doctrines are based on traditional practices."

The report went on to indicate that one of the practices of the sect was forcibly to inflict Female Genital Mutilation (FGM).

4. By October 2001 the appellant's boyfriend had joined the Mungiki and he was soon elected as its leader in the village, also near Nairobi, where she and he had set up home. Early in April 2002 he told her that she should also join the movement but, being a Christian, she refused. About three days later a group of Mungiki elders, including her boyfriend, confronted her at home. They were carrying blood and rotten meat, both of which they use in their ceremonies, and also a razor with which to inflict FGM upon her. She pretended that she needed to go to the lavatory and from there she ran to her mother's home in another village. Her mother sought to hide her. A few days later, however, while she, her mother and her sisters were having lunch, the Mungiki came to the house, blew a trumpet and took hold of each of them. In the event the men did not inflict FGM on the appellant. Instead, however, either one or more of them raped her. When she recovered, friends took her to hospital.
5. Upon discharge from hospital she returned to her family home but found that her mother and sisters were missing. She reported both her rape and the disappearance of her family to the police but was told that they could take no action because the Mungiki were very strong and the government was unable to control them. She thereupon fled to Nairobi and stayed with a friend. She became aware that her boyfriend and other members of the Mungiki were still looking for her. She also discovered that, as a result of the rape, she had become pregnant. She was still unaware of what had happened to her mother and sisters. In August 2002, following an attack by the Mungiki on an estate close to where she was staying, she managed to arrange her flight to the U.K.
6. In January 2003 she duly gave birth to a girl, for whom she continues to care. She is still unaware of the fate of her mother and sisters. In the U.K. she has undergone weekly counselling in respect of her experiences and in particular her rape; has been undergoing psychiatric treatment; and has been prescribed anti-depressants and tranquillisers. Upon his examination of her in April 2004, Dr Buller, a consultant psychiatrist, considered that the appellant was clinically depressed and displayed many of the symptoms of Post-Traumatic Stress Disorder and he expressed concern that her forced return to Kenya might well lead to a further deterioration in her mental health, including the possibility that she would, as she has previously done, consider whether to commit suicide.
7. The adjudicator rejected the appellant's appeal under the Refugee Convention 1951 upon the basis that her fear of persecution in Kenya could not be considered to be "for reasons of … membership of a particular social group".
8. In upholding her appeal under the Convention of 1950, however, the adjudicator held that the infliction of FGM would obviously infringe her right not to be subjected to inhuman or degrading treatment under Article 3; and that the objective material before him indicated that there was no reasonable willingness on the part of the Kenyan enforcement agencies to protect women from being forced by the Mungiki to undergo it. Then the adjudicator addressed the possibility of internal relocation.
9. In this last regard it is important to note four matters:

a) In his refusal letter the Secretary of State had pointed out that Kenya had an area of 224,000 square miles; that in his view, regardless of the truth of her claim, the appellant could safely relocate to a different area of the country from that which she had previously occupied; and that it would be reasonable to expect her to relocate there.

b) In her grounds of appeal to the adjudicator the appellant had complained that there was, on the contrary, no real option of internal flight and that in any event it would not be reasonable.

c) In a statement placed before the adjudicator the appellant had said:

"I am afraid to be returned to any part of Kenya and not to a specific area…

All of Kenya has Mungiki who can travel freely around it and the Mungiki following are already spread everywhere in Kenya. I would not be safe and my daughter would not be safe…

If I was returned to Kenya I would be discovered by the Mungiki people. I am afraid because I know [my boyfriend] and the way the Mungiki people operate. I think [my boyfriend] and the group would make an example of me…

Yes, if I went back to Kenya, at the very least I would be circumcised because Mungiki people would find me and circumcise me."

d) The hearing before the adjudicator inevitably lacked focus because no one appeared for the Secretary of State, with the result that there was no cross-examination of the appellant and no greater stress was laid on his behalf upon any one of the points which had been made in his refusal letter than upon any of the others.

10. In paragraph 42 of his determination the adjudicator found that:

"The Respondent has contended that internal flight is an option. The absence of a representative means that no particular area of Kenya has been identified. I note that the Appellant is a Kikuyu which is the predominant tribe in Kenya. I note also that the Mungiki sect is largely Kikuyu. The problems faced by this Appellant all occurred within a short distance of Nairobi, the capital and largest and most cosmopolitan city in Kenya. The Appellant makes the point that if she is free to travel anywhere in Kenya so are those who wish to persecute her. I accept that internal flight is not an option."

11. In reversing the adjudicator's determination on that point the tribunal, following a hearing at which both the Secretary of State and the appellant were represented but at which she was not personally present, held that the adjudicator had erred in law. He had failed, so the tribunal pointed out, to consider how the Mungiki in general, or the appellant's boyfriend in particular, would be aware of her return to Kenya or able to locate her in a country so large and populous. The tribunal then went on to consider whether, as the appellant's representative had pressed it to do in the event of concluding that the adjudicator had erred in law, it should remit the issue of relocation for re-hearing. The tribunal, however, expressed itself satisfied that it had the necessary objective material before it and observed that it could not see how the appellant's presence could assist on the issue. The tribunal then adverted to some of the objective material and, in particular, correctly noted that in certain districts members of the Mungiki had issued an ultimatum to all women aged between 13 and 65 years who had not undergone FGM to do so voluntarily within three months on pain of thereafter suffering infliction of it by force. The tribunal went on to say:

"There is no indication in the objective material that the Mungiki target individual people (other than policemen) or have any connections with the government which would give them access to government records. On the contrary it appears the government sees the group as a threat and have been trying to suppress it.

It is now some 2 ½ years since the claimant left Kenya and one must doubt whether her former boyfriend or anyone else would have any interest in her if she returned now. But even if they did there is no indication they would have any way of learning that she had returned or having learned, would have any way of locating her so long as she avoids the areas where she has lived in the past. Kenya is a large and populous country and she is a member of the majority tribe.

It is simply not credible she could be found by the Mungiki. She has a viable internal flight alternative and therefore it would not put the United Kingdom in breach of its obligations under the ECHR to return her to her home country…"

12. In applying to the tribunal for permission to appeal to this court the appellant, in an apparently home-made notice, complained that the tribunal had underestimated the Mungiki and overestimated her ability to avoid them in Kenya. In granting permission to appeal the Vice President wrote:

"Although the grounds on their face disclose no arguable error of law, it is difficult to see any significant differences between the situation which the Court of Appeal addressed in P and M [2004] EWCA Civ 1640 and the situation in this case. That being so, there is an arguable [error] of law and one that is material."

13. In her Appellant's Notice, filed out of time but in circumstances which in my view are adequately explained and should attract the necessary extension, the appellant stated, by way of grounds of appeal, "SEE TRIBUNAL'S GRANT OF LEAVE ATTACHED". In the attached skeleton argument, prepared by the appellant's then counsel, the decision in P and M was referred to. It was thereupon contended that the tribunal should not have disturbed the adjudicator's determination referable to internal relocation and had done no more than to take a different view upon it from that of the adjudicator; and alternatively that, insofar as there was any error of law on the part of the adjudicator in that regard, the tribunal had erred in seeking to determine for itself the issue of internal relocation without affording the appellant an opportunity to give oral evidence about it.
14. Thus the decision of this court in P and M dated 8 December 2004, i.e. shortly prior to the tribunal's determination in the present case, needs close attention. P and M were Kenyan women who had won appeals before adjudicators that they were entitled to asylum, and, in the case of P, that she was also entitled to humanitarian protection; but both had suffered the reversal of those decisions by the tribunal. In both cases the adjudicators had found that Kenyan women did constitute a particular social group for the purpose of the Convention of 1951. That issue was to have been the central part of the argument before this court. However, shortly before the hearing of the appeals, the Secretary of State conceded that the determinations of the tribunal that P and M did not belong to a particular social group for that purpose were flawed. This court endorsed the appropriateness of the Secretary of State's concession in that regard. So the appeals proceeded upon narrower grounds.
15. P's complaint was that she had suffered severe domestic violence at the hands of her husband and that the Kenyan police had been unable or unwilling to protect her from it. One of the tribunal's grounds for reversing the determination of the adjudicator in favour of P, in terms both of asylum and of her Article 3 rights, was that she had not established that it would be unduly harsh to expect her to relocate elsewhere in Kenya. This court pointed out that, before the adjudicator, the Secretary of State had not argued that internal relocation was open to P; that, were the tribunal, which it should be slow to do, to allow such an issue to be raised for the first time on appeal, the respondent to the appeal should be permitted to give oral evidence on the issue; and that, although it had not been argued before the tribunal on P's behalf that she should give oral evidence, it was nevertheless unjust to decide the issue against her without hearing her evidence in that, in particular, there was considerable relevant medical evidence. It will at once be clear that in the present case the forensic history is somewhat different. The Secretary of State had raised the possibility of internal relocation in his refusal letter and, although he was not represented before the adjudicator, it had been considered at that hearing. Thus the strictures of this court in P's case do not directly apply; they may, however, apply by analogy.
16. The facts of M's case, have a striking parallel with those of the present case. It is, with respect to the Vice President, unfortunate that, in referring to P and M, he did not identify the precise legal question there raised which he considered arguably relevant to the present case. I suspect, however, that at the back of his mind was the parallel to which I have referred. In paragraph 40 of its judgment this court described the facts of M's case as follows:

"She is a Kenyan national born on 27 October 1986. She arrived in the United Kingdom on 22 September 2002 and claimed asylum on 1 October 2002. The facts on which she relies stem from her father joining the Mungiki sect in around May 2000. The family were Anglicans but on joining that sect the father's behaviour became much more aggressive. According to M, in July 2002, the father, with about 20 other members of the sect forcibly performed female circumcision upon her mother, and unfortunately as a result of those injuries her mother died. The father then remarried a member of the sect who insisted that M and her sister, Jane, should be circumcised. Both refused. In the week that her mother's funeral arrangements were being made, 5 members of the sect were involved in raping M and violently assaulting her sister. Her father subsequently forcibly circumcised her sister and told M that she would be next. She managed to escape, however, and joined her uncle who, with the help of the members of his church, collected sufficient money to pay for M's ticket to come to this country."

17. In M's case the adjudicator held that women in Kenya did form a social group, particularly Kikuyu women under the age of 65; that there was no reasonable possibility of internal relocation; and that accordingly M's appeal for asylum and in respect of Article 3 should each be upheld. Before the tribunal it was agreed that the adjudicator had erred in basing her determination on Article 3. The Secretary of State's appeal to the tribunal turned not upon the issue as to relocation but only upon whether M was part of a particular social group; and, as already explained, the tribunal upheld the appeal in that regard. Thus in this court M's case revolved only around her claim for asylum and, in the light of the concession, this court restored the decision of the adjudicator.
18. In an addendum to its judgment the court stressed that the situations of P and M were those which might rather than necessarily did give rise to claims for asylum or under Article 3. It stressed that in P's case the issue of her ability to live safely in other parts of Kenya had never been appropriately investigated and that, had it so been, she might not have been entitled to succeed. It observed that in the case of M:

"Her fear of FGM appears beyond doubt. If it is accepted that she could not be expected to avoid the risk of this being carried out against her will by residing in a different part of Kenya, then her case, technicalities apart, was self evident."

19. In the light of the apparently close parallel between the facts of M's case and those of the present case, it might at least seem surprising if the result of the former is a grant of asylum whereas the result of the latter is repatriation to Kenya. Nevertheless the enquiry of this court has of course to be more rigorous than that; and note has to be taken of the warning of this court implied in its addendum in P and M not to conduct a sloppy extrapolation of the result of those cases to others. It will be clear that the determination of the adjudicator in the present case that the Appellant was not a member of a particular social group for the purpose of the Convention of 1951 would, if re-litigated now, give rise to a different answer. We have, however, to appraise whether there was legal error in the determination of the tribunal. We have therefore to remember that there was no cross-appeal to the tribunal by the appellant from the refusal of her claim for asylum and that the necessary ingredients of such a claim were simply not before the tribunal; so, as Mr Fripp, who now appears on behalf of the appellant, concedes, no question of legal error on its part in that regard can arise. Anyway of course internal relocation can be at least as ready an answer to a claim for asylum as it is to a claim under Article 3.
20. Mr Fripp makes a valiant effort to persuade us that, in his despatch of the issue of internal relocation, the adjudicator made no error of law. He submits that, properly analysed, the determination of the tribunal was reflective of no more than its different view of the inferences to be drawn from the relevant facts; that, although objection was taken by the tribunal to the adjudicator's reference to the ability of the Mungiki to travel anywhere in Kenya, his paragraph 42, quoted at [10] above, contains other relevant material, in particular in relation to the Kikuyu ethnicity of the Mungiki and therefore the strength which derives from its membership of the majority tribe; and that, while paragraph 42 is clearly the summation of the adjudicator's thinking in relation to the issue, his earlier paragraphs as to the apparent size and power of the Mungiki in Kenya should not be ignored.
21. My view, however, is that there was indeed an error of law in the adjudicator's determination of this point. I have considerable sympathy for him in that he lacked any oral assistance on behalf of the Secretary of State and had to collect the latter's points as best he could from the refusal letter. But there was a material gap in the expression of the adjudicator's reasoning: for he did not purport to explain – and there is nothing in his earlier paragraphs to demonstrate that he had considered – why, lacking access to state records, the Mungiki would be likely to discover that the appellant had returned to Kenya or, if so, to discover where in Kenya she had gone. In her statement the appellant had baldly averred that she would be so discovered. Her proposition may be valid; but its validity is not self-evident and needed to be expressly considered.
22. Although, therefore, it was correct to hold that the adjudicator's determination was deficient, I have been driven by Mr Fripp to the conclusion that the tribunal's disposal of the issue was also deficient.
23. In this regard I do not, in the end, base my conclusion upon the tribunal's refusal to allow the appellant to give oral evidence. There is no doubt that the tribunal indeed acted robustly – indeed in a manner which leaves me with some forensic discomfort - in rejecting the appellant's bald averment, to which it did not even specifically refer, that the Mungiki would discover her whereabouts, without giving her personally the opportunity to elaborate upon its basis. But her advocate attempted to do so; and I consider that the tribunal's procedural decision in that regard fell within the limits of its discretion.
24. In my view the deficiency in the tribunal's reasoning lies in its failure to consider whether, working from the foot of its conclusion that the Mungiki would be unlikely to discover the appellant in a different part of Kenya, it would nevertheless be unreasonable to expect her to relocate there. Mr Tam seeks to persuade us that this second point had not been taken below on behalf of the appellant. Although it often seems regrettably difficult for this court to discern precisely which points have been argued below, it is clear, as I have shown in [9(a) and (b)] above, that, quite apart from the issue as to whether the appellant's different whereabouts in Kenya would be discovered, she and the Secretary of State were also expressly at odds as to whether it would be reasonable for her to relocate in a different area of Kenya. There was, to put it at its lowest, no basis upon which the tribunal could conclude that such was no longer a second issue; and indeed it did not so aver. Put shortly, it failed to address the second issue in any way.
25. It seems likely that the result of the appeals to the House of Lords from the decisions of this court in Januzi v. SSHD [2003] EWCA Civ 1187 and in Hamid, Gaafar and Mohammed v. SSHD [2005] EWCA Civ 1219, due to have been heard together on 18 and 19 January 2006, will clarify issues as to the arguably different factors relevant to enquiries into the reasonableness of internal relocation in the context of claims for asylum, for protection under Article 8 of the Convention of 1950 and, so one would hope albeit perhaps not directly raised, for protection under Article 3 of that Convention. In particular the result may illumine whether the enquiry in the present case should, as dicta of this court in E v. SSHD [2003] EWCA Civ 1032; [2004] QB 531 at [67] suggest, embrace consideration of the appellant's situation in the U.K. But, putting that contentious issue to one side, it is obvious that the reasonableness of her relocation in a different part of Kenya requires consideration of the practicability of her settling elsewhere; consideration of her ability convincingly to present to those in her new milieu a false history relating to herself and to her daughter, including the latter's paternity, and a false explanation for their arrival there; and, in the light of her substantial psychological vulnerability, consideration of her ability to sustain beyond the short term a reasonable life for them both on that false basis.
26. Until his receipt of the supplementary skeleton argument filed by Mr Fripp, who came late to the case, on the day of the hearing before us, the Secretary of State could not reasonably have anticipated that this appeal would turn on the tribunal's failure to address the second issue. Nevertheless Mr Tam has sought to deal with the point and does not indicate that he would welcome further time before concluding his submissions upon it. In part the trouble stems from the slightly unfocussed terms in which the tribunal proffered the point upon which it granted permission to appeal. At all events I would permit the appellant so to amend her Notice as to take the point; would allow the appeal by reference to it; would set aside the tribunal's determination; would remit the Secretary of State's appeal from the adjudicator for fresh hearing by the Asylum and Immigration Tribunal; and would recommend to the tribunal that it should not hear the appeal until determination by the House of Lords of the appeals in Januzi and in Hamid, Gaafar and Mohammed above.

Lord Justice Moore-Bick:

27. I agree.

Lord Justice Brooke:

28. I also agree.
29. One of the difficulties we have experienced in connection with this jurisprudence in recent years has been derived from our three-tier appellate system, whereby decisions of the House of Lords frequently disturb the authority of earlier decisions by this court and the IAT; and because the House of Lords does not speak with a single voice it sometimes takes some time for the true meaning of a decision (or decisions) of the House of Lords to work its way through the system.
30. Difficulties also arise because cases which appear to raise a common issue (such as internal flight relocation) are sometimes decided solely in relation to a claim under the Refugee Convention, sometimes in relation to a claim under Article 3 of the European Convention of Human Rights ("ECHR"), sometimes in relation to an Article 8 claim, and sometimes in relation to a combination of the three.
31. In this case the appellant's asylum claim has fallen away, and she relies solely on Article 3. It is now well settled that in order to succeed in this respect she would have to show there were strong grounds for believing that if she were returned to some other part of Kenya she would face a real prospect of being subjected to inhuman treatment, which female genital mutilation would amount to.
32. Put in these terms, no question of "reasonableness" comes readily into the equation, since it is being postulated that she will be expected to live in that other part of Kenya, and relocation in itself does not readily raise Article 3 considerations. But Article 8, which was relied on in Januzi v SSHD [2003] EWCA Civ 1187 (the latter being the case now under consideration by the House of Lords) might conceivably be a more suitable vehicle for her contention in this regard.
33. Some of the difficulties to which I have referred arise from the fact that the cases of R (Ullah) v Special Adjudicator [2004] UKHL 26; [2004] 2 AC 323 and R (Razgar) v Home Secretary [2004] UKHL 27; [2004] 2 AC 368 were decided on 17^th June 2004, nearly a year after this court suggested that there might be a different test for internal flight relocation in a human rights context in AE & FE v SSHD [2003] EWCA Civ 1032 at [67]; [2003] Imm AR 609 (itself a Refugee Convention case), an approach which it then repeated in Januzi. Anything that this court has ever said about the reasonableness of internal flight relocation in a human rights context must now be read in the light of those two House of Lords decisions.
34. Difficulties also arose because it appeared to some practitioners that Lord Bingham, on the one hand, and Baroness Hale, on the other, appeared to be applying different tests in relation to Article 8 in their speeches in the Razgar case at paras 17 and 59 respectively. This difficulty arose only because the issue which had to be decided in the Razgar case was whether the Secretary of State erred in law in certifying the appellant's claim to be manifestly unfounded. This court has now authoritatively held that Baroness Hale set out in para 59 of Razgar the test which must be followed in a "foreign case" when a court is considering the merits of an Article 8 claim (as opposed to the merits of a contention that such a claim is manifestly ill-founded). She said:

"There clearly must be a strong case before the article is even engaged and then a fair balance must be struck under article 8(2). In striking that balance, only the most compelling humanitarian considerations are likely to prevail over the legitimate aims of immigration control .... The question is whether removal to the foreign country will have a sufficiently adverse effect upon the applicant."

35. This, after all, was merely a restatement of the Article 8 test propounded, obiter, by Lord Bingham in his speech in Ullah (at para 24) where he made it clear that an appellant had to show there were strong grounds for believing that, if returned, he/she faced a real risk of a flagrant denial or gross violation of his/her Article 8 rights. Lord Steyn (at paras 46-47) and Lord Carswell (at paras 68-69) articulated an identical approach, using different language. This is the reason why Buxton LJ (with whom Sedley LJ and I agreed) said in SN v SSHD [2005] EWCA Civ 1683 at paras 22-23:

"22. I do not see ... any distinction in approach between Lord Bingham on the one hand and Baroness Hale on the other ... When Baroness Hale spoke as she did, she was ... giving what might be described as some practical application of Lord Bingham's reference [in Razgar, at para 20] to a small minority of exceptional cases. The small minority of exceptional cases will be those where the most compelling humanitarian considerations are to be found.

23. In these circumstances, therefore, I for my part would ... regard Baroness Hale's formulation as a safe guide for those who bear the burden of deciding these matters, consistent as it is in my view with the approach both in Razgar and in Ullah of constitutions of the House of Lords that on this issue were unanimous."

36. I agree that in its determination in the present case the IAT did not really grapple with the complexities of applying the appropriate test in a human rights context in the context of the appellant having to live in another part of Kenya. In the circumstances fairness demands that there should be a reconsideration of the point by the AIT, and that that hearing should not take place until after the House of Lords' decisions in the two very recent appeals to which Wilson LJ refers in para 25 above have been published.