VM (FGM-risks-Mungiki-Kikuyu/Gikuyu)

JurisdictionEngland & Wales
CourtAsylum and Immigration Tribunal
JudgeMrs E Hurst,Jarvis
Judgment Date18 December 2007
Neutral Citation[2008] UKAIT 49
Date18 December 2007

[2008] UKAIT 49

Asylum and Immigration Tribunal

THE IMMIGRATION ACTS

Before:

Senior Immigration Judge Jarvis

Mrs E Hurst JP

Between
VM
Appellant
and
Secretary of State for the Home Department
Respondent
Representation:

For the Appellant: Mr E Fripp of Counsel instructed by Switalski Solicitors

For the Respondent: Mr S Walker Senior Home Office Presenting Officer

Interpreter: Mr Chama Omar Matata (Swahili — English)

VM (FGM-risks-Mungiki-Kikuyu/Gikuyu) Kenya CG

  • 1. It is important to determine whether a Kenyan claimant who fears FGM belongs to an ethnic group amongst which FGM is practised. If so, she may be a member of a particular social group for the purposes of the 1951 Refugee Convention

  • 2. Uncircumcised women in Kenya, whether Gikuyu/Kikuyu or not, are not as such, at real risk of FGM.

  • 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:

    • (a) those who practise 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 practise FGM;

    • (b) 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 practised 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).

  • 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 as 12 December 1974. The Appellant arrived in the UK on 31 August 2002 and claimed asylum on 10 September 2002. She appeals the decision of the Respondent made on 19 February 2004, to give directions for her removal to Kenya, following refusal to grant leave to enter or remain in the UK on asylum or human rights grounds.

2

The Appellant appealed to the Asylum and Immigration Tribunal [“the Tribunal”) pursuant to section 82 of the Nationality, Immigration and Asylum Act 2002, (the 2002 Act), and the Tribunal has borne in mind the grounds of appeal set out in that notice, which refer to alleged prospective breach of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol, as well as prospective breach of the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms [ECHR], as that Convention has been incorporated into United Kingdom domestic law by the Human Rights Act 1998.

3

Briefly, the procedural history of the matter is this. The Appellant claims that she left Kenya accompanied by an agent, with whom she arrived in the UK and who spoke to the Immigration Officer on arrival. The agent made all the arrangements. The Appellant has never had a passport or other travel document.

4

A screening form was completed on 10 September 2002; a written statement of evidence lodged, dated 17 September 2002, and the Appellant was interviewed on behalf of the Respondent on 7 November 2002. The Respondent set out his reasons for refusing to recognize the Appellant as a refugee and refusing to grant leave to enter or remain on human rights grounds in a letter dated 11 February 2004.

5

The Appellant appealed to an Adjudicator, Mr David A W H Chandler. Her appeal was dismissed on asylum grounds but allowed on human rights grounds under article 3 ECHR in a determination issued on 24 May 2004. The Respondent appealed to the Immigration Appeal Tribunal [IAT] and a Vice President of the IAT gave permission to appeal on 14 October 2004.

6

By a determination issued on 31 January 2005, the Tribunal allowed the Respondent's appeal, finding that there was an internal relocation alternative available to the Appellant in Kenya so that she was not at real risk of serious harm contrary to Article 3 ECHR.

7

The Appellant sought permission to appeal to the Court of Appeal and permission was granted by a Vice President on 29 March 2005 on the ground that it was difficult to see any significant differences between the situation which the Court of Appeal addressed in P and M [2004] EWCA Civ 1640 and the situation in this case.

8

By judgment issued on 31 January 2006, the Court of Appeal allowed the Appellant's appeal to the extent that there was an order for remittal to the Tribunal for reconsideration of the question of internal relocation, upon which question the Court of Appeal found that the Tribunal had erred [ VNM v SSHD [2006] EWCA Civ 47).

9

On 15 February 2007 the Tribunal decided that the previous panel had fallen into material error of law and that there should be a second stage reconsideration, in the following terms:

  • 1. “Mr Fripp, on behalf of the appellant, conceded and we are satisfied that the adjudicator made a material error of law in his determination of the appeal. This was identified in paragraph 21 of the judgement of Wilson LJ, with whom the other members of the court agreed, in their determination of the appeal by the appellant against the determination of the tribunal in the instant case, reported as VNM v SSHD [2006] EWCA Civ 47, in which he said:

    “My view, however, is that there was indeed an error of law in the adjudicator's determination of this point. I have considerable sympathy for him in that he lacked any oral assistance on behalf of the Secretary of State and had to collect the latter's points as best he could from the refusal letter. But there was a material gap in the expression of the adjudicator's reasoning: for he did not purport to explain – and there is nothing in his earlier paragraphs to demonstrate that he had considered – why, lacking access to state records, the Mungiki would be likely to discover that the appellant had returned to Kenya or, if so, to discover where in Kenya she had gone. In her statement the appellant had baldly averred that she would be so discovered. Her proposition may be valid; but its validity is not self-evident and needed to be expressly considered.”

  • 2. We are not able to undertake the further reconsideration which is required since Ms Donnelly, who represents the respondent, did not have a copy of, and therefore had not been able to consider, the expert report from Dr Ben Knighton dated 8 February 2007.

  • 3. Mr Fripp, on behalf of the appellant, identified as possible issues to be determined at the second stage reconsideration hearing the following:

    • (i) whether the appellant would be at risk on return of a breach of her article 3 rights throughout Kenya;

    • (ii) if not, did the Robinson/Januzi test in relation to internal relocation apply to an article 3 claim;

    • (iii) if so, did the appellant satisfy that test;

    • (iv) if so could the tribunal reconsider the appellant's appeal on asylum grounds in the light of the decision of the Court of Appeal in ‘P’ and ‘M’ v SSHD [2004] UKAIT EWCA Civ 1640;

    • (v) if not, would the appellant be entitled to humanitarian (subsidiary) protection having regard to paragraph 23 of the AIT Practice Directions as amended on 9 October 2006.

  • 4. We therefore adjourn the appeal for a second stage reconsideration of the appellant's appeal”.

10

It is in this way that the matter comes before us now. At the outset of the hearing we satisfied ourselves that the Appellant and the interpreter were able to understand one another. We are also satisfied that they continued to understand one another throughout the proceedings and that the Appellant (who did not give oral evidence) was able to understand, and to otherwise participate in the proceedings appropriately, including being able to follow the expert evidence of Dr Knighton and the submissions of the representatives.

11

We have before us all the documents referred to above including interview records, and the Respondent's letter of 11 February 2004, in which he sets out his reasons for refusing the Appellant's application. Also before us were the parties' bundles and authorities which are detailed at the end of this determination, as well as the parties' skeleton arguments.

12

The matter first came before us on 9 November 2007 when it was adjourned part-heard, for lack of court time, to 18 December 2007 when...

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