Ayako, R (on the application of) v The Secretary of State for the Home Department

MR JUSTICE LINDSAY: I have before me a claim for judicial review. The Claimant is Martha Kwamboka Ayako and the Respondent is the Secretary of State for the Home Department. The application form is dated 26 July 2005, and in it Miss Ayako, who appears today by Miss Atreya, asks that the decision of the Home Office to certify claims under section 94(2) of the 2002 Act should be quashed. The matter came before Bean J. on paper on 23 August of this year, and he granted permission, saying:

Briefly, the history of the matter is that she was born on 31 January 1982, so she is a little short of being 24 years old. She was brought up as a Catholic. Her father was a Catholic. He worked for the Kenyan Government. She lived in Kenya. She was privately educated for a while. Her mother died and her father had her with him in Nairobi for quite a time before, as I shall describe, she left Nairobi.

On 29 September 2001, she arrived in the United Kingdom on a student visa. She had not been subjected to FGM in her first 19 years. She came to the United Kingdom to study and has studied successfully. She has obtained a diploma relating to computer practice and she describes herself, no doubt with justification, as being a bright student.

When she came here in September 2001 she did not claim asylum. It is a matter of comment, I suppose, that had she been truly fearful of FGM were she to return, she would have asked for it even then; but anyhow she did not.

In June of 2003 her father sadly died, and she returned to Kenya for his funeral. Her mother, as I have said, had predeceased her father.

When she came back to England on 5 July 2003, student leave was refused. There were proceedings connected with that which ultimately were unsuccessful so far as she was concerned. But on 15 June 2005 she claimed asylum on the footing that she feared that if she were sent back to Kenya she would be subjected to FGM, a horrifying practice.

On 16 June 2005, illegal entry papers were served on her as an over-stayer and she was shortly thereafter interned.

On 26 June 2005 asylum was refused to her, and her claim was certified under section 94(2), as I have mentioned. On 21 July 2005, removal directions were set for her, and on 26 July she challenged the certification. That led to the Home Office putting in a defence and then more detailed grounds of defence. It led to Bean J. giving permission, as I have already recited. There has been an expert report, and, indeed, a supplementary expert report put in on her behalf, a report of Dr Aguilar, which I shall come on to mention.

It is the Home Office's case that her application is truly hopeless and that the certificate therefore is unanswerable. I have been referred to passages from the authorities on the test which is appropriate. I do not understand the parties to differ on what the test is.

Amongst the passages to which I have been referred is a passage in the authority that commonly comes up in this area, Baganavicius, in the Court of Appeal, where, in paragraph 58 one reads a citation from Lord Phillips in another case that “an arguable case”, or one that could "on any legitimate view succeed" would NOT qualify for certification. There, also in the same paragraph, one sees references to the claim having to be “manifestly unfounded” or wholly lacking in substance so that it would be bound to fail as being appropriate ways of putting the test.

As I say, I do not think the parties differ on the test but they do differ very greatly on the facts. Pausing to speak about the facts, nothing I say is intended to deal with FGM cases generally. The area is far too fact-specific to lead to an ability to generalise. I would not wish to be thought to be saying anything other than in respect of this particular case.

Mr Kovats for the Respondent makes a number of points that he says cumulatively make the position that her case is absolutely bound to fail.

The first is that she is nearly 24. He has taken me to a number of passages in the bundle which indicate that the practice of FGM usually (and I would underline usually) because it is not in every case, of course, but usually occurs at a relatively early age, certainly a good deal earlier than 24, or, indeed, 23.

There is also evidence that the likelihood of a woman being subjected to it varies greatly according to age. It usually is carried out on young girls and so the risk of a person of 24 being subjected to it is considerably less than would otherwise be the case, were she younger.

Secondly, Mr Kovats says that there is no likelihood of parental pressure on Miss Ayako because both her parents are dead. He takes me to a number of passages in the evidence about the significance of parental pressure. It is, unhappily, at any rate to English eyes, a feature that one comes across in Kenya that parents force it upon their daughters. There is no such pressure in Miss Ayako’s case.

Thirdly, he says that Miss Ayako is highly educated, and, certainly in Kenyan terms, she is. She not only completed High School there in Nairobi and completed a private education but has come on to be educated here and has a diploma in computing, and, as I have mentioned, describes herself as a bright student. The impression gleaned from the papers is of a student with ambition, and targeted ambition at that.

The relevance of education is that educated women are by quite a degree less likely to find themselves subjected to FGM than are women in the population at large. The population of Kisii women altogether who have had FGM is very high. It is 95.9 percent, which is a rather terrifying statistic. But, as I say, the risk comes down for women who are as old as Miss Ayako, who have no parental pressure, and who are educated.

Mr Kovats next refers to the fact that FGM is far more prevalent in rural areas than in city areas and that she could on return to Kenya go to Nairobi. Kisii is in the west of the country and is, as one gathers from the material, at what one might call the rural end of any spectrum. But she is familiar with Nairobi, having lived there for several years with her father, and that has also the effect that not only is she familiar with Nairobi but is likely to have fewer ties with Kisii than would otherwise have been the case, having been absent from that area for several years.

Moreover, she has demonstrated an ability, says Mr Kovats, to survive independently on her own. She has demonstrated that, he says, by her living in London or thereabouts, and certainly in the United Kingdom, and there is no reason, he says, why she should not demonstrate that independence and capability on going back to a city, Nairobi, with which she is already familiar.

He makes the point that no one has yet subjected her to FGM. Its relevance, in particular, is that whereas the country expert suggests that there would be grounds for fearing that the Mungiki sect might inflict it on her or be concerned with its infliction, her own fear, as she demonstrated in interview, was that it was the women of the countryside, the women of the Kisii that she feared would put pressure on her to subject herself to FGM. But that, one would think, she would escape by being in Nairobi, and the Mungiki is not a sect that she said she feared.

Next Mr Kovats says that times are changing, and he refers in the evidence to passages from the objective evidence as to alternative rites being developed that replace FGM, the success of which is growing. Then he refers me to the fact that she is a Catholic and it would seem that the Roman Catholic Church, perhaps with other Christian churches, are, so to speak, against FGM. The fact that she is not a Muslim is also a factor that makes her statistically less likely to be subjected to it than otherwise would have been the case.

On the Mungiki, the Mungiki is a sect which advocates FGM for its female members and Mungiki parents are likely to be amongst the most keen in inflicting it on their daughters and their wives and sisters. But she is not a member of the Mungiki, and, as I mentioned earlier, does not fear that the Mungiki would inflict it on her as a non-member.

Mr Kovats attacks the reasoning of the country expert. He first of all says that his familiarity with Kenya seems to stop in 1992, which I think is too severe a criticism to be given much weight because it is obviously possible to be familiar with reported practices without actually living in the country. But some of Dr Aguilar's reasoning does seem to be weak. At his paragraph 5 of his first report, he says:

The figure of 95 percent represents the total percentage of all Kisii females who have been subjected to it. One cannot leap from the figure for all women who have been subjected to it to the risk of a woman being forced (underlining forced) to be circumcised because that figure confusingly includes those who consented to it, perhaps as a result of parental or other pressure, and those who were not opposed to being treated.

Force, in Miss Ayako's case, would have to be physical force because the other forces, such as parental pressure, are no longer available and would not be, if she lived in Nairobi, away from Kisii territory. So it is a very dubious form of reasoning that Dr Aguilar there embarks upon.

In paragraph 9, he says:

There is no explanation of why that should be so, no statistic, no other person's report, no published material that is relied on. He says:

If she goes back to Nairobi, as seems to be the best course for her to take, she would not be a rural woman, and, in any event, it is uncertain whether she would be obliged to enter or likely to enter or to want to enter a customary marriage.

In his supplementary report, Dr Aguilar says:

So that not only builds upon the rather curious reasoning about the 95 percent but then he adds the new factor of “before marrying”. I do not regard Dr Aguilar's statistical assertions as of really very impressive weight.

There is some concern, as it seems to me, as to what her position would be if she did return to Nairobi, which, other things apart, would seem to be the best thing for her to do, if she is obliged to return at all. She does say that she would be likely to find herself destitute there and could even be trapped into prostitution.

But Mr Kovats says, and I accept, here we are dealing with an educated and capable woman. She has made her own way here, as it seems. As he says, there is no evidence that she could not do the same in Nairobi. She would have the huge benefit over many of her competitors in Nairobi that not only has she received a full High School education in Nairobi but has gone on to further education in computing, which one would think would be an area where employment would be possible even if she returned to Nairobi.

Miss Atreya says that if she did go back to Nairobi, she would not have tribal support, which is plain enough, and would run the risk of falling through whatever safety net the tribal life would otherwise avail her. But, as I have said, she is an intelligent and capable young woman with ambition and education, and it is impossible to believe that she would not be able to find employment in Nairobi with the education and added skills that she has acquired.

Taking all these factors together, it seems to me that the certificate was justified in the sense that, within the test illustrated in the authorities, her case was not one that could succeed on any legitimate ground. It was, in other words, a claim that was bound to fail, and hence I must dismiss her claim.

MISS ATREYA: My Lord, may the Claimant have an assessment as to legal aid costs?

MR JUSTICE LINDSAY: Yes.