FK (FGM – Risk and Relocation)
| Jurisdiction | England & Wales |
| Judge | Judge King,Judge Southern,Mrs J Holt |
| Judgment Date | 04 April 2007 |
| Neutral Citation | [2007] UKAIT 41 |
| Court | Asylum and Immigration Tribunal |
| Date | 04 April 2007 |
[2007] UKAIT 41
THE IMMIGRATION ACTS
Asylum and Immigration Tribunal
SENIOR IMMIGRATION Judge King
SENIOR IMMIGRATION Judge Southern
Mrs J Holt
For the Appellant: Mr A Bandegani, of Refugee Legal Centre
For the Respondent: Mr L Tarlow, Home Office Presenting Officer
P & M v SSHD [2004] EWCA Civ 1640
RM (Sufficiency of Protection – IFA – FGM) Kenya CG [2004] UKAIT 00022
JA (Mungkiki – not a religion) Kenya [2004] UKAIT 00266
JM (FGM – Sufficiency of Protection) Kenya [2005] UKAIT 00050
AK (FGM – Sufficiency of Protection) Kenya [2005] UKAIT 00080
Januzi (FC) v SSHD and Others [2006] UKHL 5
A and Fornah [2006] UKHL 46 .
FK (FGM — Risk and Relocation) Kenya CG
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(1) Women in Kenya belonging to those ethnic groups (or sub-groups) where Female Genital Mutilation is practised are a particular social group for the purposes of the 1951 Geneva Convention. Uncircumcised women in Kenya are not as such at real risk of FGM. A woman will be at real risk in her own home area if she comes from an ethnic group (or sub-group) where FGM is practised and the credible evidence shows she is reasonably likely to be required by her parents or others in a position of power and influence over her to undergo FGM.
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(2) Internal relocation will be available in Kenya to a woman who is at real risk of 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; and (ii) she can reasonably be expected to live in that place, having regard to the general circumstances prevailing in it and to the personal circumstances of the appellant (paragraph 3390 of HC 395 (as amended)). Such circumstances will include being able to survive economically (see Januzi v Secretary of State for the Home department and Others [2006] UKHL 5 ).
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(3) There is no evidence that the Mungiki seek to impose FGM upon women or communities other than those who have been initiated into their particular sect. The sect generally is not found in areas occupied by those tribes whose ethnic groups (or sub-groups) are not Kikuyu or significantly so.
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(4) This decision records updated evidence and provides new Country Guidance as to how issues of FGM and the Mungiki should be considered and approached in the light of such updated material.
The appellant is a citizen of Kenya. The dependant to her claim is her daughter, born on 28 January 1988. Her daughter herself has also given birth to a child, born 26 May 2004.
The appellant arrived in the United Kingdom with her daughter on 7 October 2002 and claimed asylum shortly thereafter. Asylum was refused and directions for her removal were given by the respondent in a decision dated 27 November 2002.
The appellant sought to appeal against that decision, the hearing of which appeal came before an Adjudicator, Mr B Watkins CMG, on 23 June 2003. The appeal on asylum grounds was dismissed as was also the appeal on human rights grounds.
The appellant sought leave to appeal against that decision to the Immigration Appeal Tribunal (as it then was) and permission to appeal was granted by a Vice President on 1 September 2003.
The matter came before the Asylum and Immigration Tribunal on 23 January 2006 by way of reconsideration. The Tribunal found that the decision of the Adjudicator was one which was materially flawed by reason of error of law. The findings of the Tribunal were as follows:-
“Having found the appellant to be credible, so far as her experiences in Kenya were concerned, the Adjudicator proceeded to dismiss her appeal, without having regard to material aspects of that account. In particular, the Adjudicator failed to consider the implications of the account, against the appellant's claim to be in fear (together with her daughter) of being compelled to undergo FGM in Kenya. The Adjudicator failed to have any regard to the background evidence relating to FGM in Kenya. In purporting to find that only one incident, namely the murder of the appellant's husband, had been reported to the authorities, the Adjudicator failed to take account at paragraph 7(A2) of the appellant's statement of 10 June 2003. In purporting to deal with internal relocation at paragraph 8 of the determination, the Adjudicator failed to have regard to the appellant's statement that she had tried to relocate to Nairobi but that the Mungiki had traced her to that city.
On 23 January, the respondent (represented by Mr Blundell) and the appellant (represented by Mr Bandegani) were in agreement that the matter should proceed to a second-stage reconsideration, at which the Tribunal would be required to determine, on the basis of current evidence, whether the appellant would be at real risk on return to Kenya of having to undergo (or being compelled to let her daughter undergo) FGM and/or other serious harm at the hands of the Mungiki sect. That risk would be assessed on the basis that, as effectively found by the Adjudicator, the appellant's account of her experiences in Kenya was credible.”
At the substantive reconsideration hearing a number of issues were highlighted for particular attention.
As to the account of the appellant it was not sought to go behind the general credibility findings which had been made by the Adjudicator. There was one aspect of the evidence which had not been dealt with specifically by the Adjudicator. That related to the circumstances in which the members of the sect had come to make enquiries about the appellant and her daughter in Nairobi as variously described in the accounts of the appellant. The Tribunal indicated that it would proceed on the basis that on one occasion in Nairobi members of the Mungiki sect had gone to a local church to ask questions relating to the appellant and to her daughter. How they had come to know about the whereabouts of the appellant and her daughter was not something which was the subject of any finding by the Adjudicator.
Mr Bandegani who represented the appellant, indicated that it was not his intention to call the appellant to give further evidence as to the substance of her claim.
It was not in issue that the appellant was a person who had come to the attention of the Mungiki sect and was thereby at some risk of FGM. It was not in issue, given the credibility of the appellant's account, that to return to her home village would expose her and her daughter to a well-founded fear of persecution at the hands of the Mungiki and/or expose her and her daughter to a real risk of serious harm, namely by having FGM imposed upon them and/or worse violence inflicted.
Given the acceptance of the substance of her fear it is necessary for us to consider therefore the judgment of the Court of Appeal in P and M v SSHD [2004] EWCA Civ 1640.
Both P and M contended that there was a lack of state protection for women in Kenya at risk of violence and FGM and that such arose from the entrenched societal attitude towards Kenyan women generally.
The case of P was essentially that she had been ill-treated and beaten by her husband whilst living in Nairobi. It was the finding of the Adjudicator, as upheld by the court, that there was no effective protection available for her should she return to her home area. The issue of internal relocation had not been raised before the Immigration Adjudicator and it was considered inappropriate for that to be raised as an issue before the Court of Appeal. The case of M stemmed from the fact that her father had joined the Mungiki sect. He had inflicted FGM upon the appellant's sister and she fled to avoid the same fate. The Adjudicator had concluded that state protection for M would be neither adequate nor effective and that there was no reasonable possibility of internal relocation in her case. The Court of Appeal having regard to the case of Tsagaan v SSHD [2004] EWCA Civ 1506 considered that the decision of the Adjudicator was ‘plainly right’ and should be restored. The Court recognised that there was a real danger of an overly technical approach being adopted to the application of the Refugee Convention.
it is perhaps helpful to set out the closing remarks of the Court of Appeal as set out in the Addendum.
“Addendum
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Upper Tribunal (Immigration and asylum chamber), 2008-06-09, [2008] UKAIT 49 (VM (FGM, risks, Mungiki, Kikuyu/Gikuyu))
...of State for the Home Department and others [2006] UKHL 5). This guidance supersedes that in FK (FGM – Risk and Relocation) Kenya CG [2007] UKAIT 00041. DETERMINATION AND REASONS This is the reconsideration of the appeal of the Appellant, a national of Kenya, whose date of birth is given as......
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Upper Tribunal (Immigration and asylum chamber), 2020-06-05, [2020] UKUT 223 (IAC) (DH (Particular Social Group: Mental Health))
...however, the appellant has to show that she faces a reasonable likelihood or real risk of having to undergo FGM, if returned. FK (Kenya) [2007] UKAIT 41 was overturned on appeal in FY (Kenya) [2008] EWCA Civ 119 and I make no comment upon it. In VM (Kenya) [2008] UKAIT 49 it is written: 203......
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Upper Tribunal (Immigration and asylum chamber), 2020-06-05, HU/10178/2017
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VM (FGM-risks-Mungiki-Kikuyu/Gikuyu)
...State for the Home Department and others [2006] UKHL 5). 7. This guidance supersedes that in FK (FGM – Risk and Relocation) Kenya CG [2007] UKAIT 00041. DETERMINATION AND REASONS 1 This is the reconsideration of the appeal of the Appellant, a national of Kenya, whose date of birth is given......