Lawrence Kagema v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judgment Date | 11 November 1996 |
| Date | 11 November 1996 |
| Court | Court of Appeal (Civil Division) |
Stuart-Smith, Aldous, Ward LJJ
Miss J Farbey for the appellant
I Ashford-Thom for the respondent
Cases referred to in the judgments:
Cozens v Brutus [1973] AC 854: [1972] 2 All ER 1297.
R v Immigration Appeal Tribunal ex parte Daniel Jonah [1985] Imm AR 7.
Senathirajah Ravichandran v Secretary of State for the Home Department [1996] Imm AR 97.
Asylum — Kenyan national — Kikuyu — attacked by Kalenjins — removed to camp — adjudicator and Tribunal concluded appellant had no well-founded fear of persecution if he returned to camp in Kenya — whether definition of persecution adopted by appellate authorities was too narrow — whether definition a matter of fact or law — whether conclusions of special adjudicator and Tribunal unreasonable. Handbook on procedures and criteria for determining refugee status para. 51.
The appellant was a citizen of Kenya, a Kikuyu. He was refused asylum by the Secretary of State. His appeals to a special adjudicator and the Tribunal were dismissed. He appealed.
He had lived in the Rift Valley. There he and his family were attacked by members of the Kalenjin tribe. With his family he was moved to a camp, and finally they were given shelter in another camp. The special adjudicator had accepted that the appellant had suffered economic deprivation and loss of adequate housing. She concluded however that the appellant if he returned to Kenya was not in danger of loss of life or liberty, and thus the appellant would have no well-founded fear of persecution for a Convention reason on his return. Counsel for the appellant argued that the special adjudicator had adopted too narrow a definition of persecution. Relying on Cozens, counsel for the Secretary of State argued that “persecution” was an ordinary English word and it was for the adjudicator to decide whether the facts as found amounted to persecution for a Convention reason.
Held:
1. Following Cozens the meaning of an ordinary word in the English language was a question of fact not law.
2. There was no universally accepted definition of the word persecution and the special adjudicator had to give the word its ordinary English meaning. Following Ravichandran she had then to decide, looking at the matter in the round and taking all relevant circumstances into account, whether a well-founded fear of persecution for a Convention reason had been established.
3. It was not for the court to substitute another meaning for the word persecution: the special adjudicator's conclusions, being matters of fact, could only be challenged on Wednesbury principles.
4. The adjudicator had had to look at circumstances that would obtain in the future: the applicant could return to the camp whence he had come: there was no evidence of continuing harassment, albeit conditions were primitive: the adjudicator's conclusions were not Wednesbury unreasonable.
Stuart-Smith: LJ: Aldous LJ will give the first judgment.
Aldous: LJ: Mr Lawrence Matu Kagema, the applicant, is a citizen of Kenya. He was born on 10 September 1968. He arrived at Heathrow on 26 February 1995 on a direct flight from Nairobi paid for by his uncle. Upon arrival he claimed asylum. He was interviewed and by a letter dated 24 July 1995 the Secretary of State informed him that he had concluded that the applicant had not established a well-founded fear of persecution in Kenya under the terms of the 1951 United Nations Convention and therefore did not qualify for asylum. His application was therefore refused. The applicant appealed. Miss J C Gort, a special adjudicator, in her decision dated 31 January 1996 came to the same conclusion and dismissed the appeal. The applicant was granted leave to appeal to the Immigration Appeal Tribunal, but the Tribunal came to the same conclusion and on 29 April 1996 dismissed his appeal. He sought leave to appeal to this court. It was granted and it is that appeal which is before this court for decision.
To succeed in obtaining asylum, the applicant had to establish that he had a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion. Before the special adjudicator and before the Tribunal, he contended that he had a well-founded fear of being persecuted both because of race or membership of a particular social group and because of his political opinions resulting from involvement with KENDA. Before us Miss Farbey, who appeared for him, did not suggest that the special adjudicator or the Tribunal erred in law in concluding that he had not established grounds for political asylum. Her submissions were confined to what I will call a well-founded fear of being persecuted for ethnic reasons.
The parties accept the findings of fact of the special adjudicator. She in her decision accepted the evidence given by the applicant. He is a Kikuyu and...
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