Petition By L O For Judicial Review Of The Decision Of The Secretary Of State For The Home Department Dated 15 September 2010
| Jurisdiction | Scotland |
| Judge | Lord Woolman |
| Neutral Citation | [2011] CSOH 106 |
| Court | Court of Session |
| Docket Number | P1012/10 |
| Date | 17 June 2011 |
| Published date | 17 June 2011 |
| 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,...
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