V.N.M. v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Wilson,Lord Justice Moore-Bick,Lord Justice Brooke |
| Judgment Date | 31 January 2006 |
| Neutral Citation | [2006] EWCA Civ 47 |
| Date | 31 January 2006 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C5/2005/1572 |
[2006] EWCA Civ 47
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE IMMIGRATION APPEAL TRIBUNAL
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Brooke,
Vice-President of The Court of Appeal, Civil Division
Lord Justice Moore-Bick and
Lord Justice Wilson
Case No: C5/2005/1572
HX05078–04
MR. ERIC FRIPP (instructed by Switalski's, Wakefield) for the Appellant
MR. ROBIN TAM (instructed by The Treasury Solicitor) for the Respondent
The appellant appeals on a point of law, with the permission of the Immigration Appeal Tribunal, from a decision of that tribunal dated 17 January 2005. By its decision, the tribunal reversed the determination of an adjudicator that, were the Secretary of State, the respondent to this appeal, to return the appellant to Kenya, the country of her nationality, he would be infringing her rights under Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950. In appealing to the tribunal against that determination, the Secretary of State took only one point, namely that the adjudicator had perpetrated an error of law in relation to the possibility of internal relocation. The adjudicator had found that it was "not an option" for the appellant to return to any other part of Kenya than the part in which she had previously resided. The decision of the tribunal was that in that regard the adjudicator had erred; that there was no need to remit the issue for further consideration by the adjudicator; that the appellant had "a viable internal flight alternative"; and that therefore the Secretary of State would not be in breach of his obligations under the Convention of 1950 in returning her to Kenya. From that decision the appellant appeals, contending first that the adjudicator made no error of law in respect the issue of internal relocation and that accordingly his determination should not have been set aside; and alternatively that, if he did make an error of law, the tribunal itself also perpetrated an error of law in its own determination of the same issue.
The appellant travelled to the U.K. from Kenya in August 2002 and claimed asylum. In refusing her claim for asylum and for humanitarian protection by letter dated 11 February 2004, the Secretary of State explained that he did not accept her account of the events in Kenya which had led her to coming to the U.K. At the hearing of her appeal before the adjudicator, the appellant was represented; but, as a result, apparently, of a shortage of Presenting Officers, the Secretary of State was not represented. Having received her oral as well as written evidence, in addition to which he had before him a report from a consultant psychiatrist, other medical and analogous professional evidence about her and objective evidence about relevant circumstances in Kenya, the adjudicator, by contrast, did accept the appellant's account of what had happened to her in Kenya. Following his determination the matter has proceeded upon the basis that the appellant's account is true.
The appellant is a member of the Kikuyu tribe and is now 31 years old. She was brought up in a village about 30 miles outside Nairobi and ran a business selling clothes. In 2000 she began to cohabit with her boyfriend. Shortly thereafter he began to show an interest in the notorious Mungiki sect. There was a mass of objective evidence before the adjudicator about the Mungiki. The adjudicator summarised it as follows:
"the Mungiki is a cultural and political movement based in part on Kikuyu ethnic traditions which are controversial in mainstream Kenyan society. The CIPU Report, describes the organisation as small [but] the Appellant produces a considerable amount of background material which suggests that it is larger and more powerful than suggested by the CIPU Report. Its leadership claims to have 2 million members."
The adjudicator accepted that a BBC news report dated 11 February 2003 provided a reasonably accurate picture of the sect. The report stated:
"Their holy communion is tobacco-sniffing, their hairstyle that of the Mau Mau dreadlocks and the origin of the sect is still shrouded in mystery.
Since the late 1990's, the sect has left behind a trail of blood in its rejection of the trappings of Western culture. …Inspired by the bloody Mau Mau rebellion of the 1950's against the British colonial rule, thousands of young Kenyans – mostly drawn from Kenya's largest tribe, the Kikuyu – flocked to the sect whose doctrines are based on traditional practices."
The report went on to indicate that one of the practices of the sect was forcibly to inflict Female Genital Mutilation (FGM).
By October 2001 the appellant's boyfriend had joined the Mungiki and he was soon elected as its leader in the village, also near Nairobi, where she and he had set up home. Early in April 2002 he told her that she should also join the movement but, being a Christian, she refused. About three days later a group of Mungiki elders, including her boyfriend, confronted her at home. They were carrying blood and rotten meat, both of which they use in their ceremonies, and also a razor with which to inflict FGM upon her. She pretended that she needed to go to the lavatory and from there she ran to her mother's home in another village. Her mother sought to hide her. A few days later, however, while she, her mother and her sisters were having lunch, the Mungiki came to the house, blew a trumpet and took hold of each of them. In the event the men did not inflict FGM on the appellant. Instead, however, either one or more of them raped her. When she recovered, friends took her to hospital.
Upon discharge from hospital she returned to her family home but found that her mother and sisters were missing. She reported both her rape and the disappearance of her family to the police but was told that they could take no action because the Mungiki were very strong and the government was unable to control them. She thereupon fled to Nairobi and stayed with a friend. She became aware that her boyfriend and other members of the Mungiki were still looking for her. She also discovered that, as a result of the rape, she had become pregnant. She was still unaware of what had happened to her mother and sisters. In August 2002, following an attack by the Mungiki on an estate close to where she was staying, she managed to arrange her flight to the U.K.
In January 2003 she duly gave birth to a girl, for whom she continues to care. She is still unaware of the fate of her mother and sisters. In the U.K. she has undergone weekly counselling in respect of her experiences and in particular her rape; has been undergoing psychiatric treatment; and has been prescribed anti-depressants and tranquillisers. Upon his examination of her in April 2004, Dr Buller, a consultant psychiatrist, considered that the appellant was clinically depressed and displayed many of the symptoms of Post-Traumatic Stress Disorder and he expressed concern that her forced return to Kenya might well lead to a further deterioration in her mental health, including the possibility that she would, as she has previously done, consider whether to commit suicide.
The adjudicator rejected the appellant's appeal under the Refugee Convention 1951 upon the basis that her fear of persecution in Kenya could not be considered to be "for reasons of … membership of a particular social group".
In upholding her appeal under the Convention of 1950, however, the adjudicator held that the infliction of FGM would obviously infringe her right not to be subjected to inhuman or degrading treatment under Article 3; and that the objective material before him indicated that there was no reasonable willingness on the part of the Kenyan enforcement agencies to protect women from being forced by the Mungiki to undergo it. Then the adjudicator addressed the possibility of internal relocation.
In this last regard it is important to note four matters:
a) In his refusal letter the Secretary of State had pointed out that Kenya had an area of 224,000 square miles; that in his view, regardless of the truth of her claim, the appellant could safely relocate to a different area of the country from that which she had previously occupied; and that it would be reasonable to expect her to relocate there.
b) In her grounds of appeal to the adjudicator the appellant had complained that there was, on the contrary, no real option of internal flight and that in any event it would not be reasonable.
c) In a statement placed before the adjudicator the appellant had said:
"I am afraid to be returned to any part of Kenya and not to a specific area…
All of Kenya has Mungiki who can travel freely around it and the Mungiki following are already spread everywhere in Kenya. I would not be safe and my daughter would not be safe…
If I was returned to Kenya I would be discovered by the Mungiki people. I am afraid because I know [my boyfriend] and the way the Mungiki people operate. I think [my boyfriend] and the group would make an example of me…
Yes, if I went back to Kenya, at the very least I would be circumcised because Mungiki people would find me and circumcise me."
d) The hearing before the adjudicator inevitably lacked focus because no one appeared for the Secretary of State, with the result that there was no cross-examination of the appellant and no greater stress was laid on his behalf upon any one of the points which had been made in his refusal letter than upon any of the others.
In paragraph 42 of his determination the...
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