Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2011] CSOH 106
P1012/10	OPINION OF LORD WOOLMAN in the Petition by LO Petitioner; For Judicial Review of the decision of the Secretary of State for the Home Department dated 15th September 2010 ­­­­­­­­­­­­­­­­­________________

Act: Byrne, Drummond Miller, Solicitors

Alt: McGregor, Office of the Solicitor to the Advocate General

17 June 2011

[1] The petitioner seeks asylum on the basis that she faces the grave risk of harm if she is returned to Kenya.

Background

[2] The petitioner was born in 1977 and is a Kenyan national. Her family is from the Luo tribe and they live in Kisumu, a port city in western Kenya. In 2005 she met and formed a relationship with a man who is a member of the Kikuyu tribe. In May 2008 they began living together in Nairobi.

[3] In October 2008, the petitioner's partner joined an organisation known as 'Mungiki'. An expert on Kenya has described it as a former religious sect, which has "morphed into a criminal gang and a private militia under the control of certain politicians from the Kikuyu ethnic group." (Dr Branch, Report, para. 2.2)

[4] The petitioner became aware that her partner was involved in violent activity, because he would come home with blood on him. He became violent toward her. He repeatedly hit her and insisted that she should join Mungiki. That would involve circumcision as, unlike the Luo, Mungiki practice female genital mutilation ('FGM').

[5] The violence escalated after the petitioner told her partner that she was going to leave him and return to Kisumu. He threatened to kill her and regularly beat her using a wooden stick with protruding nails.

[6] In February 2009, the petitioner was violently attacked and raped by two of her partner's friends, whom he had brought home with him. They inserted a medicine bottle into her private parts after the attack. She was raped again by the same two men later that night. She went to hospital for treatment. After being discharged, she reported the matter to the police. She was informed that they would look into the matter, but she has not heard from them since then.

[7] The petitioner returned to Kisumu, where she received further threats from her partner, including FGM and death. In March 2009 she received a letter from her cousin in London, inviting her to make a visit to the United Kingdom.

[8] The petitioner received a visa in April and flew to London on 2 May 2009. She was due to return on 20 September 2009, shortly before her visa was due to expire. Instead of checking-in for the flight to Kenya, however, she hid in the toilets at Heathrow airport. She then stayed with friends in London and then in Perth. While she was in the United Kingdom, she felt too ashamed to report to the authorities what had happened to her.

[9] On 31 December 2009, the police detained the petitioner in Perth as an overstayer. She was taken to Yarlswood Immigration Detention Centre. On 3 January 2010 she was due to board a flight back to Kenya. At the airport, she told an immigration officer that she did not want to return and she was sent back to Yarlswood. She was released from detention on 15 January 2010 and returned to live in Perth. Her application for asylum was refused on 15 February 2010.

[10] On 29 March and 14 April 2010, the petitioner was examined by Dr Patricia Moultrie from the Medical Foundation for the Care of Victims of Torture. Her report states:

"This young woman has 37 scars over her body, seven of which are typical stab wounds. In addition the appearance of 18 of the scars when considered together is typical of repeated beating with a blunt instrument. The nature and distribution of scars when considered in totality are in my view therefore diagnostic of repeated beatings with blunt and sharp objects. I can offer no other explanation for this pattern of scarring". (Report, para. 72)

[11] The report made a finding of Post Traumatic Stress Disorder (para. 81). It concluded as follows (paras. 93 and 94):

"There is nothing in the clinical picture which in my professional opinion suggests a false allegation of torture.

In my professional opinion this woman has suffered longstanding and repeated violent assault and rape. I have no reason to doubt the history she gives. I reach this view based on her history, my observation of her behaviour and my examination of physical scarring along with mental state examination."

The First-tier Tribunal

[12] In her appeal to the First-tier Tribunal (Asylum and Immigration Chamber), the petitioner maintained that if she returns to Kenya, she would not be safe. She would be pursued by her former partner and Mungiki and that neither her family nor the police can protect her. She contended that internal relocation was not an option. In order to receive treatment for her post-traumatic stress disorder, she would have to live close to her family in Kisumu, or in a large urban community.

[13] The Immigration Judge refused the appeal. He accepted that the petitioner had been the victim of violent assault and rape at the hands of her ex-partner and his friends. But he said that the issue was whether there was a real risk of persecution on her return. He held that the petitioner would be able to look to the Kenyan authorities for protection on her return and that she would be able to relocate internally (para. 14 of his Opinion).

Country Guidance

[14] The country guidance case for Kenya is VM [2008] UKAIT 00049. It states:

"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 practice 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 practice FGM; a woman 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 practiced 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 of 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 be able to survive economically (see Januzi v Secretary of State for the Home Department and others [2006] UKHL 5)."

[15] In making his decision, the Immigration Judge did not refer to VM. Instead he relied upon the Operational Guidance Note for Kenya dated 15 September 2008: see para. 3 of his Opinion dated 1 July 2010.

The Upper Tribunal

[16] On 23 July 2010, the Upper Tribunal held that the petitioner's grounds of appeal did not disclose an arguable error of law. Accordingly, permission to appeal the decision was refused.

Expert Opinion

[17] On learning of the Upper Tribunal's decision, the solicitors representing the petitioner were determined to explore the question of making further representations. The Immigration Rules provide that:

"353. 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. ..."

[18] In order to provide the basis for further representations, the petitioner's solicitors sought an expert opinion on the current position within Kenya. In particular, they sought views on two matters: (a) the protection afforded by the state to persons who had been targeted by Mungiki; and (b) the feasibility of internal relocation for a person in the petitioner's position.

[19] The solicitors approached Dr Ben Knighton, who had given expert evidence in VM. In that case the court stated that Dr Knighton is a "highly respected academic who is steeped in the ways of Kenyan society...we see no reason why we should not receive and accept his expert evidence on the basis that he is an unbiased and accurate witness" (para. 153).

[20] Dr Knighton informed the solicitors that, as he was going on annual leave, it would take him about a month to prepare a report. At that stage, the need to make further representations was pressing. Removal directions had been issued against the petitioner that were to take effect the following week. Given that tight timescale, the solicitors did not ask Dr Knighton to prepare a report. In the course of their email correspondence, however, he clearly outlined his views:

a)     "... the [Kenyan] state is unable still to protect ... and secure internal relocation is so difficult when targeted that eight witnesses and families have all been taken to Europe for safety."

b)     "... once targeted by Mungiki, there are reasonable grounds for fear, because of Mungiki's involvement in the transport and matatu industries. They travel to all the towns of Kenya, and have their sworn secret informers there. Through the ex-partner Mungiki will know the social and economic circle in which the client is embedded, and without capital and influence she will not be able to escape them."

c)     "I returned from five weeks in Kenya last week and, although Mungiki are going through another quiet phase, they are still there, and evidence is still just as lacking that the police are detecting and prosecuting them effectively".

In a striking phrase, he also referred to the 'Tentacles of Mungiki'.

[21] The petitioner's solicitors then approached another expert, Dr Daniel Branch. Dr Branch is an assistant professor at Warwick University. He holds a Doctorate from the University of Oxford and a Masters degree from the School of Oriental and African Studies. He was a fellow of Yale University between 2005-6 and an election observer in Kenya during the 2007 elections. With their letter of instruction dated 27 August 2010, the solicitors enclosed "our client's letter of refusal from the UK Border Agency, her SEF interviews and all previous representations and determinations relating to her case. We also include her most recent statement."

[22] Dr Branch provided a report very quickly. It is dated 30 August 2010 and contains the following statements:

a)     [the petitioner] "has good reason to be fearful of Mungiki should she return to Kenya" (para. 2.1)

b)     "Mungiki remains in existence and of considerable strength. The group is present in all major towns and cities where there are sizeable populations of Kikuyus, the country's largest ethnic group. With limited intelligence available on how extensive Mungiki's intelligence is, it would seem an unacceptable risk to return [the petitioner] to Kenya in the expectation that she could relocate to an urban area besides Nairobi." (para. 2.9)

c)     "In the absence of state social services, women in [the petitioner's] position would typically rely on their family members. However with her fears for personal safety likely to limit her communications with her fear of being traced by Mungiki, it is difficult to imagine the circumstances under which [the petitioner] will find the support necessary to relocate elsewhere in Kenya. Moreover, with Kikuyu populations linked to Mungiki present in almost every significant urban area, [the petitioner] will rightly fear for her safety." (para. 2.13)

d)     "Access to the very limited psychiatric expertise is limited to the major cities. This needs to be considered in light of the security risk to [the petitioner] of living in such locations due to the high numbers of Kikuyu and the attendant presence of Mungiki." (para. 2.15)

e)     "Moreover [the petitioner's] status as a rape victim also raises the question of further support from the state. There is limited provision of shelter for victims of rape who fear reprisals, [or] are seeking medical or other help ..." (para. 2.16)

f)       "Mungiki's threat to the lives of ... potential informers such as [the petitioner] is well known." (para. 3.1)

g)     "Past periods of calm and apparently effective police operations against Mungiki have been followed by periods of intense Mungiki violence and apparent close relations with the state and other powerful political actors able to prevent justice being done and potential victims being protected." (para. 3.3)

h)     "The State's willingness and ability to protect women such as [the petitioner] is thus very limited and contingent on future political developments that are impossible to predict at this juncture." (para. 3.6)

i)       "It is therefore highly doubtful whether or not the Kenyan state is able to offer sufficient protection to [the petitioner] because of her ties to Mungiki or from further sexual assault."(para. 3.11)

j)       for the petitioner to receive adequate treatment for her mental health problems, she would have to live in a major city where there is a high level of Mungiki (para. 2.16)

[23] Dr Branch concluded that the petitioner is at risk from Mungiki should she return to Kenya (para. 4.1) and that "The Kenyan State is unable to provide sufficient protection to victims of rape." (para. 4.4)

The Decision Letter

[24] On 30 August 2010, the petitioner's solicitors wrote to the Secretary of State enclosing the material from Dr Knighton and Dr Branch. By letter dated 15 September 2010, the Secretary of State held that the further representations did not create a realistic prospect of success before another Immigration Judge.

The Ground of Review

[25] In this application for judicial review, the petitioner submits that the Secretary of State's decision is unreasonable.

The Task for the Court

[26] The Inner House has recently reconsidered the court's role in immigration claims of this type: Dangol, Petitioner
[2011] CSIH 20. It approved the following passage as setting out the correct approach:

"[10]  ... Whilst, therefore, the decision remains that of the Secretary of State, and the test is one of irrationality, a decision will be irrational if it is not taken on the basis of anxious scrutiny. Accordingly, a court when reviewing a decision of the Secretary of State as to whether a fresh claim exists must address the following matters.

[11]  First, has the Secretary of State asked himself the correct question? The question is not whether the Secretary of State himself thinks that the new claim is a good one or should succeed, but whether there is a realistic prospect of an adjudicator, applying the rule of anxious scrutiny, thinking that the applicant will be exposed to a real risk of persecution on return:  ...The Secretary of State of course can, and no doubt logically should, treat his own view of the merits as a starting-point for that enquiry; but it is only a starting-point in the consideration of a question that is distinctly different from the exercise of the Secretary of State making up his own mind. Second, in addressing that question, both in respect of the evaluation of the facts and in respect of the legal conclusion to be drawn from those facts, has the Secretary of State satisfied the requirement of anxious scrutiny? If the court cannot be satisfied that the answer to both of those questions is in the affirmative it will have to grant an application for review of the Secretary of State's decision."

WM (DRC) v Secretary of State for the Home Department [2006] EWCA Civ 1495 [2007] Imm AR 337 per Buxton LJ

[27] The Court of Appeal has given further guidance on Rule 353. In AK (Afghanistan) v. Secretary of State for the Home Department [2007] EWCA Civ 535, it said:

"Precisely because there is no appeal from an adverse decision under rule 353, the decision maker has to decide whether an independent tribunal might realistically come down in favour of the applicant's asylum or human rights claim, on considering the new material together with the material previously considered. Only if the Home Secretary is able to exclude that as a realistic possibility can it safely be said that there is no mischief which will result from the denial of the opportunity of an independent tribunal to consider the material."

[28] That approach was echoed in AK (Sri Lanka) v The Secretary of State for the Home Department [2009] EWCA Civ 447. There Laws LJ suggested that the Secretary of State had to enquire whether there was "only more than a fanciful ... prospect [of success]" (at para. 34).

The Correct Question

[29] In my view, the Secretary of State did ask the correct question. She asked herself whether there is a realistic prospect of an adjudicator thinking that the applicant will be exposed to a real risk of persecution on return.

Anxious Scrutiny

[30] This case therefore turns on the second question. I shall anticipate my conclusion by stating that in my view, the Secretary of State has not satisfied the requirement of anxious scrutiny.

[31] Her first task was to consider the further submissions. Both experts had roundly disputed the conclusion of the Immigration Judge. In their view, the petitioner would be placed in a perilous position if she had to return to Kenya. Mungiki could reach her and the state could not protect her.

[32] The decision letter makes it clear that the Secretary of State proceeded on twin assumptions: that the Immigration Judge had considered VM and that the two experts were unaware of that fact.

"The Immigration Judge considered the individual circumstances of your client when assessing whether internal relocation would be an effective option, in line with the guidance as set out in the Country Guidance Case VM." (para. 19; see also paras. 22 and 27)

[33] In my view, it is questionable whether the Immigration Judge did consider VM. He did not refer to the case in his opinion. Further, he did not approach the matter by expressly asking the two relevant questions: (a) are there Mungiki in the new area; and (b) is relocation reasonable in all the circumstances?

[34] Instead the Immigration Judge held that the petitioner "... has not given the state an opportunity to protect her. It is likely that they will be able to do so." (para. 13) He also held that "internal relocation would be effective" (para. 14) and that "there is no real risk of serious harm" if the petitioner returns to Kenya (para. 15). He did not elaborate his reasons. By contrast, VM states that "Insufficient protection is available from the Kenyan authorities" for family members of males who belong to Mungiki.

[35] In my view, if VM was not considered, or even if there is a doubt on the matter, that significantly undermines the Secretary of State's decision. In cases of this type, she only has a slender margin of appreciation: TR (Sri Lanka) [2008] EWCA Civ 1549 at paras. 32-33. The scrutiny cannot be said to be anxious if it ignores a material mistake.

[36] My view is strengthened when I consider the Secretary of State's reasons for finding that the views of the two experts do not create a realistic prospect of success before another Immigration Judge. Standing their authority and the fact that their views are consistent, clear and convincing, one would expect to see a cogent rebuttal.

[37] In my view, the Secretary of State does not provide such a rebuttal. She states (a) that the experts did not have full information; (b) that the email exchanges with Dr Knighton should not be treated as equivalent to a full report; and (c) that Dr Branch's views were speculative, as he accepted that there is only limited information on the extent of Mungiki intelligence. In my view that is a doubtful basis to hold that the material and opinion of the experts should be laid to one side.

[38] That is particularly the case, given that the Immigration judge relied to a considerable degree on the 2008 Guidance Note. Indeed, it appears to be the foundation of his decision. Such a policy document, however, should "...be assessed on its merits but should not be treated as if it were an expert report or having greater authority solely by reason of its coming from the UK Border Agency": MD (Women) Ivory Coast CG [2010] UKUT 215 (IAC) at para. 266.

[39] There are in my view two other matters which weigh against a finding of anxious scrutiny. First, the Secretary of State regarded it as a material fact that the petitioner had lived in Kisumu between February and May 2009 without harm, despite her ex-partner knowing where she lived. The Secretary of State assumed that the two experts were unaware of that fact. However, Dr Branch was or ought to have been aware of the position, as he had been sent the relevant papers.

[40] Secondly, the decision letter appears to put a gloss on a material passage in Dr Branch's report. He stated:

"The State's willingness and ability to protect women such as [the petitioner] is thus very limited and contingent on future political developments that are impossible to predict at this juncture"

After quoting this statement, the letter continues:

"33. Therefore, Dr Branch makes clear that, although, limited, there is a willingness and ability by the state to offer protection."

In my view, that construction of his position is unwarranted. It conveys a very different meaning from the one he sought to convey.

[41] Taking these various points together, in my view the Secretary of State has not met the requisite test.

Conclusion

[42] I shall reduce the decision of the respondent dated 15 September 2010.