United Kingdom Asylum and Immigration Tribunal

JK (FGM sufficiency of protection) Kenya [2005] UKIAT 00080

IMMIGRATION APPEAL TRIBUNAL

Date of hearing: 19 November 2004

Date Determination notified: 01 April 2005

Before
Mr. Richard Chalkley, Vice President Professor B L Gomes da Costa JP
Between

 

Secretary of State for the Home Department	APPELLANT
and
JK	RESPONDENT

Ms L Bavage, a Home Office Presenting Officer, appeared on behalf of the Appellant and Mr S Symonds, a representative from Refugee Legal Centre, appeared on behalf of the Respondent.
DETERMINATION AND REASONS
1. The Appellant is the Secretary of State for the Home Department.
2. The Respondent is a citizen of Kenya who was born on 4th January 1978 and who claims to have entered the United Kingdom during August or September 2002, in possession of a forged passport which was supplied to her by an agent. The Respondent maintains that her agent then gave her a passport stamped with a valid working visa for the United Kingdom. The Respondent was subsequently caught working in apparent breach of the terms of the visa on 20th October 2003. She claimed asylum when arrested.
3. The Appellant appeals, with leave of the Tribunal, against the determination of an Adjudicator, Ms C Jarvis, who in a determination promulgated on 22nd March 2004, following a hearing at Taylor House on 5th March 2004, allowed an appeal by the Respondent against the decision of the Appellant, taken on 14th November 2003, to direct her removal after refusing asylum. The Adjudicator allowed the appeal under the 1951 United Nations Convention on the Status of Refugees, having found that the Appellant was a member of a particular social group and that there was a lack of sufficiency of protection for the Respondent in Kenya. She also found that the Respondent's removal from the United Kingdom would breach the Respondent's rights under Article 3 of the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR).

The basis of the claim

4. The Respondent was born in Muranga, central province of Kenya and lived there until coming to the United Kingdom. She has one brother, ( ), who was born in 1982. Her mother remains living in Muranga, but her father died in 1998. The Respondent claims to be of Christian faith and when she left school in 1994, she helped her mother selling farm produce.
5. In 1999, the Respondent began a relationship with a man named ( ), who was also from Muranga. When the Respondent became pregnant, the couple began living together and regarded each other as husband and wife, although they never participated in any marriage ceremony. The Respondent gave birth to a child of the relationship, ( ), born on 16 October 2001. When the Respondent came to the United Kingdom, she left her daughter in the care of her mother in Muranga. The relationship between the Respondent and ( )became estranged and, from time to time, she claims that she went back to live with her mother. After the birth of ( ), ( )changed and began to drink alcohol. When he was drunk he would beat the Respondent. He began smoking a drug similar to cannabis and wore his hair in dreadlocks. He washed it with leaves instead of soap and began using an unusual greeting. The Respondent realised that these were all things done by members of the Mungiki sect. By the beginning of 2002, the Respondent came to believe that ( )was deeply involved with the Mungiki sect. He began spending time with people whom she knew to be members of the sect. The Respondent did not directly discuss this with Francis, as she believed that he would simply have laughed at her and ignored her.
6. In March 2002, ( )told the Respondent that he could not continue to live with a woman who had not been circumcised and talked of having her circumcised. The Respondent was against circumcision, not only because it was a dangerous thing to do, which might cause her to be unable to enjoy sexual intercourse, but also because it was against her religious beliefs.
7. One day in April 2002, ( )came to the family home with two women who were carrying a surgeon's knife, disinfectant and bucket of cold water. The Respondent claims that she was forced onto the floor and that the women began to circumcise her, by cutting her left labia with a knife. She cried and screamed in protest. She managed to persuade them to allow her to have a break. Blood was oozing from the wound. Once she was on her feet, the Respondent made for the door and then ran to the home of a friend called ( ), about 15 minutes away. She had to keep stopping because of the pain, but her mind was focused on getting away to safety.
8. The Respondent believes that ( )did not chase her because he believed that she would return. She had always retuned to him in the past after he had ill-treated her. She had done so, because she had nowhere else to go and because ( )supported her and her daughter financially. The Respondent remained at her friend's house for some three days, by which time the bleeding from the wound had almost ceased. The Respondent believed that ( )might find her and so she went to stay with an aunt in Nairobi. She learned that ( ) had told her mother what had happened and that her mother had gone to the Respondent's home and taken ( ) to stay with her.
9. During 2002, the Respondent returned to Muranga to visit her daughter and mother on several occasions, although she never stayed there. These were brief visits and she was careful not be seen, as she did not want Francs to know she was there. Once the Respondent had recovered her health, she collected ( ) and took her to Nairobi, where they lived with a friend and the Respondent started to look for work. This proved to be not as easy as the Respondent had imagined and so she returned ( ) to her mother's home, whilst the Respondent returned back to Nairobi, moving from house to house, staying with friends and seeking employment.
10. The Respondent did not report any of the assaults upon her by Frances to the police, because domestic violence, including forced circumcision, is not seen by the police as their responsibility to deal with. The Respondent maintained that the Mungiki sect members forcibly circumcised their women and female children and are powerful throughout Kenya including Nairobi. Members of the government are also supporters of the sect. The Respondent believes that ( )would have found her in Nairobi through his friends from the sect who lived there. At the end of September 2002, the Respondent travelled to the United Kingdom on false documents.

The grounds of appeal

11. There were two challenges to the Adjudicator's determination. The first was that the Adjudicator erred in finding that the Respondent falls within the 1950 Convention definition of "social group". Reliance was placed on the Tribunal decision of M [2004] UKIAT 00022. The second challenge was to the Adjudicator's finding that the Respondent would not be able to avail herself of state protection against the Mungiki. It was asserted that the Adjudicator's findings conflicted with the objective evidence, which showed that the practise of female genital mutilation is outlawed by the Kenyan authorities and that there is protection given by both the courts and the authorities.

Representatives submissions

12. Ms Bavage submitted that the Adjudicator had erred in finding that the Respondent was a member of a particular social group. At paragraph 65 of her determination she said:-

"I find that the [Respondent] is a member of a particular social group of Kikuyu women in Kenya, who have not been subjected to full FGM and who, being opposed to FGM, wished to preserve their bodies from further mutilation."

And at paragraph 57, in relation to sufficiency of protection, she said:

"On the totality of the evidence, I find that there is evidence that there is active support for the Mungiki on the part of some members of Parliament and a level of infiltration by Mungiki into government through its members taking posts in central and local government offices. I do find that the influence of the Mungiki and the governmental support for it and its beliefs and actions, are such as to show that the government is to be regarded as reluctant to act against the Mungiki, in effect condoning its actions, or is unable to do so."

13. Mr Symonds interrupted, by way of clarification and to indicate that he accepted the first challenge and that the definition given by the Adjudicator in paragraph 65, does not amount to a particular social group.
14. Ms Bavage submitted that the Adjudicator's alternative finding in paragraph 67 of the determination, that the Respondent was a member of a particular social group, namely "women in Kenya" would also be wrong, because not all women in Kenya fear female genital mutilation. The Adjudicator erred in assessing the objective evidence. According to the CIPU Report, female genital mutilation is widely condemned by international health experts as damaging to both physical and psychological health. It is practised by certain ethnic groups and remains widespread, particularly in rural areas. It is said to be usually performed at an early age and according to estimates 38% of women nationwide have undergone FGM. President Moi has issued two decrees banning FGM and the government prohibits government controlled hospitals and clinics from practising it. In December 2001, President Moi outlawed the circumcision of women under the age of 17 and had introduced prison terms and penalties up to 50,000 Kenyan shillings. However, in some rural communities FGM is still practised, despite efforts by the government, churches and civic groups to stamp it out.
15. Ms Bavage suggested that paragraphs 6.50 to 6.55 of the CIPU report clearly demonstrate that changes are taking place in relation to attitudes towards women in Kenya and, she submitted, that Kenya was clearly distinguishable from Pakistan, where attitudes and the law were discriminatory towards women. The Respondent's fear was of future circumcision, but that could not, submitted Ms Bavage, bring the Respondent within the definition of a member of a particular social group. In addition, there was a clear sufficiency of protection for her in Kenya and it was quite clear that she could internally relocate as she had done, successfully, between April 2002 and September 2002, when she left the country. The Respondent had already spent five months in Nairobi and was not discovered, despite undertaking visits to see her mother in Muranga. ( )had not been able to relocate the Respondent, always assuming of course that he was trying to. Ms Bavage suggested that it would not be unduly harsh for the Respondent to relocate and that she had successfully attempted it. She might not necessarily have access to land and access to her daughter, but she had been living with her aunt and friends in Nairobi and there was no requirement that she should necessarily have access to housing or to employment. The objective material quite clearly showed that there was a sufficiency of protection in any event and there was family support for her. Ms Bavage invited us to allow the appeal.
16. Mr Symonds submitted that the Adjudicator's findings in relation to internal flight had not been challenged and that, so far as the objective material was concerned, the Adjudicator had correctly directed herself on the objective evidence at paragraph 30 to 46 of the determination. Despite attempts on behalf of the government, the practise of female genital mutilation in Kenya is widespread and, he submitted, it had not been established by the Respondent that the Adjudicator had misdirected herself. Mr. Symonds suggested that a second challenge was unsustainable, but he submitted, even if the Tribunal found that the Respondent was not a member of a particular social group of Kikuyu women in Kenya who had been subjected to FGM and who, being opposed to FGM, wished to preserve their bodies from further mutilation, then there had been no challenge to the alternative finding by the Adjudicator that the Respondent was a member of a particular social group, namely women in Kenya. He submitted that the Tribunal is not permitted to look at the alternative finding since it had not specifically been challenged. He addressed us at some length and asked us to bear in mind that the proper starting point was the fact that this Respondent had suffered domestic violence. It could not be said that there was any adequacy of protection, because of societal views in relation to women in general. The Adjudicator had properly noted the objective evidence and the efforts made by the Kenyan state to prevent such abuses, but nonetheless FGM continues. As the Adjudicator herself noted, there was no evidence before the Adjudicator of any punishment having been meted out to those responsible for FGM.
17. We had the benefit of having received, albeit rather late in the day, a typed skeleton argument prepared by Mr Symonds dated 14 November. We confirm that we have very carefully read and considered that along with the arguments he made at the hearing. Ms Bavage, responding on behalf of the Respondent, submitted that the first challenge to the Adjudicator's determination quite clearly relates to the definition of a particular social group. It is clear from paragraph 74 and 75 that the Adjudicator believed that the Appellant's asylum claim and human rights claim stood or fell together. She referred us to the Tribunal's decision in M [2004] UKIAT 00022, which also related to a young female citizen of Kenya. Her father joined the Mungiki sect and insisted that both the Appellant and her sister should be circumcised, although they actually refused. The Adjudicator identified the Appellant to be a member of a particular social group which he identified as women in Kenya and particularly Kikuyu women under the age of 65. However the Tribunal were not satisfied that within the society in Kenya there is a social group of either Kenyan or Kikuyu women under the age of 65. The risk did not arise from the Appellant being a woman or a Kikuyu woman, but from being a member of or closely related to a member of the Mungiki movement. The risk to her arose from the fact that her father wanted her to undergo FGM.
18. Ms Bavage suggested that there was a sufficiency of protection. There was a law which protected women and the Amnesty International report reproduced at pages 90 to 94 of the Respondent's bundle provides clear evidence that the law is applied. The section headed "Violence against Women" made reference to a court having sentenced three suspects to two years probation for subjecting a 15 year old girl to the practice. Ms. Bavage submitted that the objective evidence clearly showed that the number of rapes being reported was increasing and that attitudes generally towards women were changing. She asked us to allow the appeal. We reserved our determination.

Conclusions

19. Dealing with the first challenge to the Adjudicator's determination, we agree with Ms Bavage that the thrust of this challenge is that the Adjudicator erred in finding that the Appellant falls within the 1950 Convention by reason of being a member of a particular social group. While reference is made to what the Adjudicator said in paragraph 65, the whole thrust of the challenge seeks to show that the Appellant cannot bring herself within the definition of being a member of a particular social group.
20. What the Adjudicator went on to say at paragraph 67 was this:-

"In the alternative, and perhaps rather more simply, I would find the Appellant to be a member of the social group 'Women in Kenya'. This definition is based on the background evidence which shows discrimination against women in relation to domestic violence (amongst other areas, for example property rights), both at a general societal level and in terms of legislation and the attitude of the government, in relation to women, which appears to be akin to that found by the court in the case of Shah and Islam in relation to Pakistan. In so finding, I include FGM as a form of 'domestic violence' in respect of which women are unable to achieve a sufficiency of protection by reason of the inability and unwillingness of the government to provide it."

21. However, nowhere in her determination does this Adjudicator actually consider whether there is a risk to the Respondent. She merely assumes that there is a risk. The Adjudicator has not given any consideration to the likelihood of the Respondent being subjected to any further attacks. She has simply focused on the issue of whether the claim engages the 1951 Convention on the basis that the claimant is a member of a particular social group. We find that we do not need to consider that matter (although if we had, we would have found that she was wrong, following M [2004] UKIAT 00022), because we find that there are two errors of law in this adjudicator's approach to the analysis, as set out by the House of Lords in Shah and Islam [1999] Imm AR 283, [1999] UKHL 20. The first error was for the adjudicator not to have made any proper finding on the issue of serious harm and thereby misdirect herself and the second error on her part was to assess the objective evidence as establishing that there was a general lack of protection for women in Kenya.

The issue of the risk of serious harm

22. The evidence before her was that this Respondent had been the victim of an attempt by her former lover and two women to circumcise her, the implication being that Francis, the Respondent's former lover, had now become a member of the Mungiki sect and, as a result, wanted his common law wife to be circumcised. The Adjudicator has not given any consideration to the likelihood of the Respondent being subjected to any further attacks. The Respondent has left the relationship. Were she to return now, there was no evidence to even suggest that ( )would be interested in her in any way at all, let alone would now wish to have her circumcised. We noted that there was no evidence before the Adjudicator that ( )had ever attempted to locate the Respondent after she ran away from him and the two women who accompanied him. They are no longer in any relationship; that ceased in April 2002. This Respondent has been apart from ( )since either August or September, 2002 and it was only because the Respondent and ( )were at the time living together as man and wife, that he wanted her to be circumcised in the first place.
23. Nor was there any evidence that the Mungiki sect as such, as opposed to ( )and his two associates in particular, have any interest in this Respondent at all. It was, in our view, perverse and illogical for the Adjudicator to have simply found the Respondent to be a member of a particular social group, without first considering whether or not there was a real risk to this Respondent on her return to Kenya. That, with very great respect to the Adjudicator, is an error of law. Only having established if there is a real risk, can the decision maker go on to find if the claim engages the Convention. This Respondent is not at risk of FGM because she has left her partner.

The issue of sufficiency of protection

24. The second error of law on the part of the Adjudicator was in her treatment of the issue of state protection. At paragraph 58 the Adjudicator said:-

"In these circumstances I find that the subjection of this Appellant to FGM would amount to persecution at the hands of a non-state agent, the Mungiki, from whom the state is unable or unwilling to protect her (see e.g. the judgment of the House of Lords in Horvath). I find that if she were to be returned to Kenya, she would be at serious risk of being subjected to FGM." (Horvath v Secretary of State For The Home Department [2000] UKHL 37)

25. It was asserted on behalf of the Secretary of State that the Adjudicator's findings clearly conflict with the objective material, which shows that the practise of FGM is illegal and that there is protection, given by both the courts and the authorities, which would be adequate to afford a safeguard to the Appellant.
26. We now consider the issue of whether the Kenyan authorities afford effective protection to women and girls against Female Genital Mutilation (FGM). We have had regard to not only the Kenya Country Assessment of April 2003, but also the bundle of objective material submitted on behalf of the Appellant. We have already referred to the Amnesty International report, which covered events from January to December 2003 and note that it referred to security forces clashing with members of the proscribed Mungiki group. We noted also that violence against women by state officials and private individuals continued to be widespread. A reference was made to the 2001 Domestic Violence and Family Protection bill not having been enacted and it also spoke of measures being taken by government and non-governmental agencies to end FGM, but despite these measures, the practise remained widespread. We have already made reference to the prosecution of three suspects for subjecting a 15 year old girl to FGM (at paragraph 18). That section of the US State Department Report, contained within the Appellant's bundle, noted that the law prohibits female genital mutilation for girls under the age of 18 and forced female genital mutilation on girls and women of any age. It was, however, described as being a widespread practice in rural areas. FGM is said to usually be performed at an early age. The government has prohibited government controlled hospitals and clinics from practising it. Various communities were said to have instituted "no cut" initiation rights for girls as an alternative to FGM. According to the Family Planning Association of Kenya, its "no cut" programme contributed to a 13% decline in the prevalence of FGM in one district.
27. We have also noted that in 2002, a group of girls (the objective material does not mention how many) sought refuge at the Centre for Human Rights and Democracy (CHRD) in Eldoret to escape undergoing FGM. They were among of group of 350 girls who had participated in an alternative right of passage in 2001 and were being threatened by family members with FGM. CHRD secured a court injunction against the girl's parents preventing them from forcing the girls to undergo FGM. It appeared to us, therefore, that there was very clear evidence in the Appellant's own bundle which showed that FGM was outlawed and that protection was given by the courts.
28. As a result of our consideration of all the objective material, we are satisfied that, even if this particular Respondent were at risk of FGM from her former partner, there is a sufficiency of protection available to her. That is not necessarily to say that there would always be a sufficiency of protection available to all women and girls who fear FGM in Kenya. We can imagine that there may be some women, married to Mungiki sect members, who cannot relocate and who might be either part of a particular social group, following P & Another v Secretary of State for the Home Department [2004] EWCA Civ 1640, or at risk of an Article 3 breach and for whom, given their particular circumstances, there would not be a sufficiency of protection.
29. We turn next to consider whether, even if the Adjudicator was wrong to conclude that there was an insufficiency of protection for women in general, her conclusion was still justified in relation to the particular situation of the Respondent. However, the Respondent did not state that she took any steps to seek protection from the authorities against threats and violence aimed at her by ( )and his associates. Given this fact, we cannot see that the Adjudicator could have found protection to be insufficient in her case, except on the basis of her erroneous generalisation about the sufficiency of protection for women in general.

The issue of internal relocation

30. Even if the Adjudicator were considered not to have erred in her assessment of serious harm and sufficiency of protection in the Respondent's home area, the Respondent would still not have been entitled to recognition as a refugee, or to protection under Article 3, unless she was able to demonstrate that there was no viable internal flight alternative available to her in Kenya. However, here too we find that the Adjudicator materially erred in law. This Respondent was able to live and work without difficulty in Nairobi for some five months, between April 2002 and September 2002, during which time she returned "on several occasions to Muranga to visit her daughter and mother". There is no evidence that during this time ( )was looking for the Respondent. It seemed clear to us that even if we were wrong in our earlier findings, there appeared to be no reason why the Respondent should not return to Kenya and live in a different part of the country. There was no credible evidence before us that it would be unduly harsh for her to do so.
31. We find that the adjudicator made a material error of law in failing to make a proper finding on the issue of serious harm. In view of what we have said earlier in this determination (see paragraphs 22 and 23) we do not believe that on her return to Kenya, this Respondent will be at risk of any persecutory harm or at risk of a breach of her Article 3 rights. We find also that the adjudicator made a further material error of law in her assessment of the objective evidence as establishing that there was a general lack of protection for women in Kenya. On the evidence that was before us that this Respondent would be able to avail herself of protection against the Mungiki sect (an organisation proscribed by the Kenyan government) and would be able to avail herself of state protection against threats of FGM, which is illegal in Kenya although we do recognise that there may be other women who, because of their particular circumstances may not be able to avail themselves of protection. Alternatively we see no risk to the Respondent returning to Kenya and relocating to an area other than Muranga; it would not be unduly harsh for her to do so.
32. For all these reasons the Secretary of State's appeal is allowed.

RICHARD CHALKLEY

VICE PRESIDENT