CM (Kenya) v Secretary of State for the Home Department

The appellant, CM, comes from Meru in Kenya. There her family made the decision that she should undergo female genital mutilation (“FGM”). She managed to flee first into Nairobi, then to this country where she claimed asylum as a young girl of 16 on 7 April 2003. Her claim for refugee status was refused but she was permitted to remain until her 18^th birthday and given further periods during which she was allowed to remain until her appeal against a refusal for asylum was dismissed in December 2004. Although this is an appeal with leave of the single judge against an adverse reconsideration conclusion by the Asylum and Immigration Tribunal on 19 April 2006, it is necessary to look at the history of the litigation that has brought her to this court.

The original decision dismissing her appeal was made by an adjudicator on 14 December 2004. In that hearing her claim was disbelieved. She had said that she had heard that her father had decided that it was time for her to undergo FGM. On learning that news she had, as I have said, fled to Nairobi. There she had found employment as a housekeeper and had remained four months. Through the kindness of her employer she was able to leave Nairobi and arrived in the United Kingdom on 1 April 2003, claiming, as I have said, asylum very shortly after. Her account was, however, disbelieved by the adjudicator in 2004.

It is unnecessary to identify in detail the grounds upon which she was disbelieved but it is worth observing at this stage that her assertion of persecution by reason of FGM was rejected by that adjudicator, untutored as she was by subsequent authority. I should, however, note that during the course of the decision the adjudicator, whilst rejecting her claim as being a fabrication, no less, turned to her assertions that were she to return she was at risk of inhuman or degrading treatment contrary to article 2 of the European Convention on Human Rights. Whilst considering that claim, which the adjudicator also dismissed, the adjudicator referred to an expert, a Dr Aguilar, who dealt with treatment that she might face if she were to be returned to Nairobi. The adjudicator sets out Dr Aguilar’s view that her life would be in danger and:

“It is not uncommon for older single women to be attacked and stoned to death by angry mobs that respond to witch-hunt calls particularly in urban centres.”

The adjudicator did not believe that that represented a risk of ill-treatment contrary to article 3.

The appeal against that decision was allowed and on 22 December 2005 the AIT referred to another tribunal a full reconsideration of this appellant’s case on the grounds of a number of errors of law, including the fact that the adjudicator did not consider the question of an internal flight alternative or sufficiency of protection which may be necessary arising from the question of her tribal origin.

Thus it was that a further AIT reconsidered from a fresh perspective this appellant’s claim. Contrary to the view taken by the earlier adjudicator, the Asylum and Immigration Tribunal believed the account given by this appellant. They believed the reasons that she gave for fleeing from the area in which the Meru lived to Nairobi and whilst they expressed some doubts about the full details of how she escaped from Nairobi, they certainly accepted that her father was intent upon subjecting her to the persecution of FGM, and furthermore that she would not be protected by the state. The question which the AIT then had to consider was whether it would be unduly harsh for her to return to Nairobi. Inherent in that issue was the question as to whether her family, and in particular her father, would persist in seeking to find her, subject to her to that mutilation and whether he would be successful, if he was interested in doing so, in finding her in Nairobi. The tribunal took the view that she would not be at risk of being found in Nairobi and indeed that they were not persuaded that there was a risk her father was still interested in pursuing her. They concluded that, although the father had a number of employees, the prospect of finding her in Nairobi were she to return there, bearing in mind that it is a city containing in excess of two million people, was implausible and as they put it, “substantially remote”.

In this appeal that finding was challenged. It was said on behalf of the appellant that the tribunal failed to have regard to written evidence from an organisation concerned with those such as the appellant, an organisation concerned with the discrimination against women, which had reported by e-mail dated 24 March 2006 that as a result of a meeting between a relative of this appellant’s father, it emerged he was still looking for his daughter and reiterated his, as it was put, stand on FGM. It is plain from reading the tribunal’s decision as a whole and from specific references to the e-mail attached to the appellant’s documentation (see paragraph 9) that the tribunal had well in mind that written support for the appellant’s case. There is no basis for saying that the tribunal ignored it. It was perfectly entitled to reach the view that, whether or not this appellant’s father maintained his unacceptable attitude, nonetheless the prospects of him finding her after so long in so large a city as Nairobi were too remote as to substantiate any genuine fears she might have that that would occur.

That, however, was not the end of the matter. The tribunal had to go on to consider whether it was unreasonable or unduly harsh to expect her to relocate in Nairobi where, it was contended on behalf of the Secretary of State, she would be safe from the pursuit of her father and away from an area where the Meru lived where FGM was commonplace.

The tribunal concluded that it would not be unreasonable or unduly harsh for her to return to Nairobi. They applied, correctly in my view, the test for consideration of relocation to what used to be called a safe haven identified by Lord Hope in Januzi v Secretary of State for the Home Department [2006] UKHL 5 at paragraph 41:

“The words ‘unduly harsh’ set the standard that must be met for this to be regarded as unreasonable. If the claimant can live a relatively normal life there judged by the standards that prevail in his country of nationality generally, and if he can reach the less hostile part without undue hardship or undue difficulty, it will not be unreasonable to expect him to move there.”

There was ample material upon which the tribunal could reach the conclusion they did that it would not be unduly harsh for her to return there. She had, as the tribunal recorded, lived there for some four months when she was younger about 16. She had found employment and support within Nairobi. As the tribunal recorded, the objective evidence showed that single young women could live in Nairobi. Furthermore, she was bright and had done well in this country and there was no reason to think she would not do well in Nairobi.

If matters had stopped there, I for my part would have regarded the tribunal’s conclusion as one to which it was entitled to reach, but they did not. The appellant had, as I have already mentioned, relied upon a report from Dr Aguilar. She had relied upon it in support of her contention that her father would maintain his interest in pursuing her, subjecting her to FGM, and indeed would be able to find her within Nairobi. All of that found support, as the tribunal recorded, in Dr Aguilar’s report dated 23 November 2004. He is a social anthropologist who had lectured at the Catholic University of East Africa and had conducted extensive field work, particularly amongst the Meru. He is currently Dean of the Faculty of Divinity at St Andrew’s. He records the persecution of girls and women amongst the Kikuyu and the Meru and the persistence in the practice of FGM amongst those groups. He also sets out his foundation for his conclusion that she would still be at risk from her father. This, as I have said, the tribunal rejected, as they were entitled to do.

But his report deals not only with the risk of her being sought and discovered by her father but the life that she would face in Nairobi. He deals in part of his report with the circumstances in which he suggests the father might find her in Nairobi through a series of transport connections over which those from the Meru and Kikuyu areas have influence, but also deals with the position in Nairobi quite apart and distinct from the pursuit by the father. He sets out in his report the very passage I have already cited, which the adjudicator had originally observed in relation to article 3. He says:

“Without the possibility of returning home under police protection I find it difficult to believe that she could live in Nairobi without coming in contact with a movement that is still very active against women and that would find her refusal to undergo FGM and an arranged marriage unacceptable. It has not been uncommon for older single women to be attacked and stoned to death by angry mobs that respond to witch-hunt calls particularly in urban centres. In those circumstances the state of Kenya will not protect her and her life will be in danger.”

There is no reference within the determination of the tribunal to any of those factors which suggest that Nairobi would not be safe for this appellant and certainly go to show that it would be unduly harsh to expect her to return there. It is suggested that the conclusion that it would not be unreasonable or unduly harsh for her to relocate to Nairobi carries with it, as implicit in that conclusion, the rejection of the assertion by Dr Aguilar. It was pointed out by Mr Parishil Patel on behalf of the Secretary of State in frank and moderate submissions that the tribunal could not be expected to deal with each and every point. Certainly it cannot, but in deciding whether it was unduly harsh to expect this appellant to relocate to Nairobi, the evidence of Dr Aguilar as to the circumstances which she would face was important and significant. It is true, as Mr Patel pointed out, that there is other evidence which might have formed the basis for the rejection of Dr Aguilar’s assertions. I have looked at the very full report “No Upright Words” by the Refugee Women’s Resource Project Asylum Aim February 2001, which deals, as its title says, with the human rights of women in Kenya. In that report it is pointed out that FGM has disappeared as a practice in Nairobi, although it has been reported in some slums. The report deals in detail with the risks of sexual assault women face throughout Kenya and in Nairobi and does not deal with the particular risks of witch hunts to which Dr Aguilar refers.

But if Dr Aguilar’s evidence was to be rejected it was in my view incumbent upon the tribunal to identify the conflict between Dr Aguilar’s evidence and the objective evidence and state at least in outline why it was that the tribunal was rejecting those assertions. It was not sufficient to let the point go in silence and by implication. It was an important, distinct point from the gravamen of the appellant’s case that she would be pursued and found by her father. The failure of the tribunal to deal with that significant and important point was in my view an error of law and in those circumstances on that ground I would allow the appeal.

In normal circumstances that would mean that this case would have to go back, if my Lords agree with me, for further reconsideration by a tribunal. That it must be recalled would be the third time that a woman who has been subjected to the old Kenyan proverb, “women have no upright words but only crooked ones”, for the assessment of her claim. But she is only 20. She has fled what has been found to be persecution from a family which ought to have protected and supported her.

It is in those circumstances I hope that those who now have to consider how this appeal should be disposed, should it be successful, will consider whether the maintenance of an effective and fair system of immigration control requires this young lady, through no fault of her own, to be subjected to a third hearing.

I agree.

I also agree. The appeal therefore will be allowed. I would venture to add one word in respect of what was said by my Lord, Lord Justice Moses, at the end of his judgment. What happens now is a matter for the Secretary of State, and it is only possible for the court to comment on the present situation, but the circumstances are these. This young lady came to this country in April 2003 when she was aged just 17. Since then she has been for nearly four years engaged without remission in the asylum litigation system of this country. None of that delay has been her fault. There is no suggestion that either she or those advising her have ever delayed or failed to comply with the requirements that that system imposes. We now have the position that after she has been here for four years and achieved the age of 20, her situation still remains uncertain. What we know of her from the information about her that is set out in the determination of the Immigration and Appeal Tribunal indicates that during that four years she has achieved a significant number of qualifications, and is on the way to completing an important course in information technology.

There is thus every reason to think that if she is allowed to remain here she will be a useful and productive member of English society. In those circumstances I, like my Lord, very much doubt whether the acknowledged imperative of fair and firm immigration control requires the Secretary of State to pursue this matter any further. As I say that is merely a matter of comment but I have every confidence that my comments and those of my Lord will be conveyed to those who are responsible for making the decision about what happens next.