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You are here: BAILII >> Databases >> United Kingdom Asylum and Immigration Tribunal >> VM (FGM,risks,Mungiki,Kikuyu/Gikuyu) Kenya CG [2008] UKAIT 00049 (09 June 2008) URL: http://www.bailii.org/uk/cases/UKIAT/2008/00049.html Cite as: [2008] UKAIT 49, [2008] UKAIT 00049 |
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VM (FGM-risks-Mungiki-Kikuyu/Gikuyu) Kenya 
CG [2008] UKAIT 00049
Date of hearing: 9 November and 18 December 2007
Date Determination notified: 09 June 2008
| VM |
APPELLANT |
| and |
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| Secretary of State for the Home Department | RESPONDENT |
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
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] 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".
The Facts of the Appellant's Case
"3. 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."
4. 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).
5. 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.
6. 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.
7. 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".
8. 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.
9. 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.
10. In paragraph 42 of his determination the adjudicator found that:
"The Respondent has contended that internal flight is an option. The absence of a representative means that no particular area of Kenya has been identified. I note that the Appellant is a Kikuyu which is the predominant tribe in Kenya. I note also that the Mungiki sect is largely Kikuyu. The problems faced by this Appellant all occurred within a short distance of Nairobi, the capital and largest and most cosmopolitan city in Kenya. The Appellant makes the point that if she is free to travel anywhere in Kenya so are those who wish to persecute her. I accept that internal flight is not an option."
24. In my view the deficiency in the tribunal's reasoning lies in its failure to consider whether, working from the foot of its conclusion that the Mungiki would be unlikely to discover the appellant in a different part of Kenya, it would nevertheless be unreasonable to expect her to relocate there. Mr Tam seeks to persuade us that this second point had not been taken below on behalf of the appellant. Although it often seems regrettably difficult for this court to discern precisely which points have been argued below, it is clear, as I have shown in [9(a) and (b)] above, that, quite apart from the issue as to whether the appellant's different whereabouts in Kenya would be discovered, she and the Secretary of State were also expressly at odds as to whether it would be reasonable for her to relocate in a different area of Kenya. There was, to put it at its lowest, no basis upon which the tribunal could conclude that such was no longer a second issue; and indeed it did not so aver. Put shortly, it failed to address the second issue in any way.
25. It seems likely that the result of the appeals to the House of Lords from the decisions of this court in Januzi v. SSHD [2003] EWCA Civ 1187 and in Hamid, Gaafar and Mohammed v. SSHD [2005] EWCA Civ 1219, due to have been heard together on 18 and 19 January 2006, will clarify issues as to the arguably different factors relevant to enquiries into the reasonableness of internal relocation in the context of claims for asylum, for protection under Article 8 of the Convention of 1950 and, so one would hope albeit perhaps not directly raised, for protection under Article 3 of that Convention. In particular the result may illumine whether the enquiry in the present case should, as dicta of this court in E v. SSHD [2003] EWCA Civ 1032; [2004] QB 531 at [67] suggest, embrace consideration of the appellant's situation in the U.K. But, putting that contentious issue to one side, it is obvious that the reasonableness of her relocation in a different part of Kenya requires consideration of the practicability of her settling elsewhere; consideration of her ability convincingly to present to those in her new milieu a false history relating to herself and to her daughter, including the latter's paternity, and a false explanation for their arrival there; and, in the light of her substantial psychological vulnerability, consideration of her ability to sustain beyond the short term a reasonable life for them both on that false basis.
26. Until his receipt of the supplementary skeleton argument filed by Mr Fripp, who came late to the case, on the day of the hearing before us, the Secretary of State could not reasonably have anticipated that this appeal would turn on the tribunal's failure to address the second issue. Nevertheless Mr Tam has sought to deal with the point and does not indicate that he would welcome further time before concluding his submissions upon it. In part the trouble stems from the slightly unfocussed terms in which the tribunal proffered the point upon which it granted permission to appeal. At all events I would permit the appellant so to amend her Notice as to take the point; would allow the appeal by reference to it; would set aside the tribunal's determination; would remit the Secretary of State's appeal from the adjudicator for fresh hearing by the Asylum and Immigration Tribunal; and would recommend to the tribunal that it should not hear the appeal until determination by the House of Lords of the appeals in Januzi and in Hamid, Gaafar and Mohammed above.
The Case Of FK
"5. The decision of the AIT, before whom the appellant was represented by an advocate from the Refugee Legal Centre and the respondent by a presenting officer, is extremely thorough. Helpfully, it concludes with the following summary, intended to give guidance to other tribunals:
(1) It is important to determine whether the claimant belongs to an ethnic group, amongst which group FGM is practiced. If so she may be a member of a particular social group for the purposes of the 1951 Geneva Convention.
(2) All uncircumcised women in Kenya, whether Kikuyu or not, are not as such at real risk of FGM. The statistical evidence shows that at least fifty per cent, if not more, of women in Kenya have not been the subject of FGM. The objective evidence shows an increasing pressure to abstain from such a practice both by many of the churches and communities, by the government and non-governmental agencies, by the promotion of an alternative "initiation rite".
(3) The decision to undergo FGM is one made by the individual if adult or by the parents if a child. Such a decision will no doubt be reflective of the cultural norms which exist within the particular community in which the woman or child resides. It is, however, possible for a woman not wishing to embrace the initiation of FGM for herself or her family to live in a community which does not subscribe to such practises. Those who practice FGM are not reasonably likely (particularly in urban areas) to seek to inflict it upon women from non-practising ethnic groups (or sub-groups).
(4) A woman will only be at real risk if she comes from an ethnic group (or sub-group) where FGM is practised and the evidence shows that she is reasonably likely to be required by her parents or by others, in a position of power and influence over her to undergo FGM.
(5) There is no evidence that the Mungiki seek to impose FGM upon women or communities other than those who have been initiated into their particular sect. The objective evidence speaks of the Mungiki as being involved in organised crime, transportation in urban areas and in public order offences. There is no evidence that they are engaged in any significant activity such as imposing FGM on groups or communities who do not support their political/cultural aims.
(6) The authorities are motivated to act against the Mungiki and in the past a significant number of arrests including the arrest of one of the leaders. The Mungiki seeks to reflect the traditional or cultural base of the Kikuyu. The sect generally is not found in areas occupied by those tribes whose ethnic groups (or sub-groups) which are not Kikuyu or which do not contain an element of the Kikuyu.
(7) Internal relocation will be available in Kenya to a woman who is at real risk of FGM in her home area if the evidence shows,(sic) (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; and (ii) she can reasonably be expected to live in that place, having regard to the general circumstance prevailing in it and the personal circumstances of the appellant (paragraph 3390 of HC 395 (as amended). 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 Office and Others [2006] UKHL 5).
(8) In considering internal relocation it is important to bear in mind the religious and/or cultural context particularly whether there is any family or sub-clan support available to the woman in the area proposed. It may be considered that it would be easier for a member of the Kikuyu tribe to relocate to an area with a similar tribal culture and support, rather than relocating into a different area. That having been said, however, much will depend upon the individual circumstances of the woman and of the availability of a support structure within the proposed area of return.
(9) Credibility will usually have an important part to play in determining whether a woman is at risk. In considering the issue of relocation it is important that the family and extended family situation and context be examined particularly as to cultural context, education, economic lifestyle and work experience."
21. Mr Jorro's critique of the tribunal's reasoning is that it fails entirely, or at least adequately, to engage with the specificity of the appellant's case: that she would probably need to relocate to a Kikuyu area in order to survive; that in any Kikuyu area, and equally in a non-Kikuyu area where her name would show her to be Kikuyu, there was a real risk that Mungiki would sooner or later locate her; and that, irrespective of whether the local community welcomed them, they were likely to exact revenge upon a mother and daughter who had violated tribal custom by fleeing from a Mungiki elder to whom her grandfather had given the daughter in marriage in return for a dowry, and had done so in order to avoid both the marriage and the genital mutilation to which the mother, under coercion, had consented. He points out that Dr Knighton's report gives explicit and documented support to this possibility but is not referred to by the tribunal.
22. It was on these grounds that the appellant was found to have a fear which was both genuine and, were she to return to her home village, well-founded. The tribunal had therefore to be satisfied that, if she were to live elsewhere in Kenya, the fear would no longer be well-founded. They begin this part of their determination (§83) by noting that there are tribal areas where there is no societal pressure to undergo FGM, and that Musoma and Mombassa are multi-ethnic towns; but they base no finding on this, since the appellant's case turned not on societal pressure but on the risk of direct victimisation. This meant, if nothing else, considering with very great care whether the Mungiki, who had killed the appellant's husband for refusing to join them as his father had done, and who had evidently attempted to track down the appellant and her daughter when they fled to Nairobi, might by enquiry or by rumour learn where they were now living. If there was a real risk that they might do so, it would arguably be impossible to exclude a real risk of abduction and enforced genital mutilation.
23. In our judgment the tribunal has failed to engage properly with this critical issue. Earlier in their determination (at §81) they say: "No example has been adduced before us of communities being targeted by the Mungiki, particularly to undergo FGM." This is a surprising assertion: what had happened to the appellant and her family was a very clear example of exactly this process. It is set in context, no doubt, by what they go on to note: that there are evidently millions of Kenyan women who are not required to undergo FGM and who therefore, it can be inferred, escape the attention of Mungiki. But that, like the first sentence of §103, cited above, does not meet the particularity of the appellant's case.
24. Nor, with respect, does the second sentence of that paragraph do so. On the very clear evidence before the tribunal - both the appellant's specific evidence and Dr Knighton's generic evidence – the penetration of Mungiki into communities where they have as yet no influence has little or nothing to do with whether they are welcomed. That is not how they operate. On the evidence, they operate by recruiting individuals where they can and, for the rest, by imposing their customs and practices on the community by violence and intimidation.
25. The tribunal's earlier remark (at §81) that "If whole communities came under such pressure with such violence, it is perhaps surprising that nothing in the media has been published" is not only speculative but appears to overlook the fact that the material part of Dr Knighton's report gives sources in the Kenyan press, the second of them derived from a statement by the provincial chief of police for Nairobi, for the Mungiki's revanchist policy and practice towards renegades. If a distinction is intended by the tribunal between the penetration of communities and the oppression of them, it does not seem to us illuminating in the present context.
26. It is in §101 that the tribunal set out to deal with the case they have set out in the previous paragraph. They begin by describing that case as a generalised statement, which in our judgment it is not. They then assert that there is little support for it in the detail of the evidence. For reasons we have already given, this too is incorrect: both the appellant and Dr Knighton had given detailed evidence capable of making out the case. Contrary to what the tribunal next assert, there was every reason, given such evidence, to suppose that the appellant both had been and would remain of particular interest to the sect because of what happened in Kiambu in 2002. The finding in the final sentence of the paragraph seems to us to verge on the perverse: by focusing solely (and dubiously) on the appellant and her father, it ignores the real agent of mischief, her father-in-law, and the strong likelihood that both the insult to him and the elder's lost dowry would be very well remembered.
27. A similar imbalance is apparent in §103-4. The suggestion that only the willing are drawn into the Mungiki orbit, contrasting the father-in-law on the one hand with the appellant and her husband on the other, fails to take account of what happened first to her husband, who was murdered, and then to the appellant's daughter, who narrowly escaped FGM. And the tribunal's further finding that "there is nothing advanced before us to indicate that [Mungiki] seek systematically to impose FGM upon non-initiates" overlooks the clear evidence that FGM is initiation, and that the appellant, in fear after the killing of her husband, had agreed to it: clear evidence, in other words, of systematic imposition.
28. Lastly, the finding that there was no reason to suppose that the appellant would necessarily stand out in a community where FGM is not practised fails to engage with Dr Knighton's evidence that her name would always identify her as Kikuyu and – to Mungiki – as a renegade. Whether her name stands out may therefore be beside the point: the question is whether it may sooner or later enable her to be identified and targeted.
29. For all these reasons we consider that the specificity of the appellant's case – which, we reiterate, relates not to the existence of a well-founded fear in her home village but to the reasonableness and safety of moving elsewhere in Kenya - has not been adequately addressed. We would add in this connection that the reasonableness of a particular relocation is not necessarily confined to what is objectively to be feared there, although that is ordinarily conclusive. There may be cases where the tribunal is satisfied that, objectively, the appellant can be safe on relocation, but the appellant is so traumatised by past events that she remains in genuine terror of being returned there. The Home Secretary, by her counsel, accepts that cogent evidence to such effect may be relevant to whether internal relocation is unduly harsh.
30. In spite of the time that has gone by – not, so far as we know, through the fault of the appellant or her advisers – it seems to us that this case requires remission to the AIT so that the critical issue of the reasonableness of internal relocation can be properly determined. We invite counsel's submissions, initially in writing, as to what form the remission ought to take.
The Issues
- Can the Appellant revive her claim to refugee recognition?
- If yes, is she a refugee by reason of there being no internal protection alternative available to her and her children?
- If she cannot rely here upon a claim to refugee status, has she made good a claim to humanitarian protection?
- Has she made good her case under article 3 ECHR?
- Or is it the law that she must show that there is either a real risk of her experiencing serious harm contrary to article 3 ECHR throughout the whole of Kenya? Or, is the case that it must be shown that there is such a real risk in her home area, and that there is no other part of Kenya to which it would be reasonable to require her and her daughter and son to relocate to?
- Will removal of the Appellant and her two children to Kenya cause the UK to be in breach of its obligations under article 8 of the ECHR?
Revival of the Claim to Recognition as a Refugee
- P and M v SSHD[2004] EWCA Civ 1640
- SSHD v Fornah; K v SSHD [2006] UKHL 46, [2007] 1 AC 412, [2006] 3 WLR 733
- FK (FGM - risk and relocation) Kenya
CG [2007] UKAIT 00041 as he takes the view that the Appellant's situation is on all fours with that of FK so that her appeal should be dismissed. The Respondent submits that in FK the Tribunal made findings when considering the evidence presented by Dr Knighton, which he had again presented in this appeal, and that this Tribunal should follow FK in dismissing this appeal.
37. First, on the evidence available, there was no reason why the Adjudicator should not have come to the conclusion that women in Kenya are a particular social group. If the position was not made clear by the decision in Shah & Islam, it is made clear by the decision of the Australian High Court in Applicant S v MIMA [2004] 8 CA 25, that we would apply also in this jurisdiction. The Adjudicator's decision was correct on her findings of fact as to the position of women in Kenyan society.
26. First, claims based on fear of FGM have been recognised or upheld in courts all round the world. Such decisions have been made in England and Wales (Yake v Secretary of State for the Home Department, 19 January 2000, unreported; P and M v Secretary of State for the Home Department [2004] EWCA Civ 1640 [2005] Imm AR 84), the United States (In re Kasinga (1996) 21 I & N Dec 357, Abankwah v Immigration and Naturalization Service 185 F 3d 18 (2d Cir 1999), Mohammed v Gonzales 400 F 3d 785 (9th Cir 2005), Australia (RRT N97/19046, unreported, 16 October 1997), Austria (GZ 220.268/0-XI/33/00, unreported, 21 March 2002), and Canada (Re B(PV) [1994] CRDD No 12, 10 May 1994; and Compendium of Decisions, Immigration and Refugee Board, February 2003, pp 31-35). Secondly, such agreement is consistent with clearly expressed opinions of the UNHCR. Representative of its consistent view is a memorandum of 10 May 1994 on Female Genital Mutilation, which in para 7 says:
"On this basis, we must conclude that FGM, which causes severe pain as well as permanent physical harm, amounts to a violation of human rights, including the rights of the child, and can be regarded as persecution. The toleration of these acts by the authorities, or the unwillingness of the authorities to provide protection against them, amounts to official acquiescence. Therefore, a woman can be considered as a refugee if she or her daughters/dependents fear being compelled to undergo FGM against their will; or, she fears persecution for refusing to undergo or to allow her daughters to undergo the practice."...
31. Departing from the submission made below, but with the support of the UNHCR, Miss Webber for the second appellant submitted that "women in Sierra Leone" was the particular social group of which the second appellant was a member. This is a submission to be appraised in the context of Sierra Leonean society as revealed by the undisputed evidence, and without resort to extraneous generalisation. On that evidence, I think it clear that women in Sierra Leone are a group of persons sharing a common characteristic which, without a fundamental change in social mores is unchangeable, namely a position of social inferiority as compared with men. They are perceived by society as inferior. That is true of all women, those who accept or willingly embrace their inferior position and those who do not. To define the group in this way is not to define it by reference to the persecution complained of: it is a characteristic which would exist even if FGM were not practised, although FGM is an extreme and very cruel expression of male dominance. It is nothing to the point that FGM in Sierra Leone is carried out by women: such was usually the case in Cameroon (GZ, above) and sometimes in Nigeria (RRT N97/19046, above), but this did not defeat the applicant's asylum claim. Most vicious initiatory rituals are in fact perpetuated by those who were themselves subject to the ritual as initiates and see no reason why others should not share their experience. Nor is it pertinent that a practice is widely practised and accepted, a contention considered and rejected in Mohammed v Gonzales, above. The contrast with male circumcision is obvious: where performed for ritualistic rather than health reasons, male circumcision may be seen as symbolising the dominance of the male. FGM may ensure a young woman's acceptance in Sierra Leonean society, but she is accepted on the basis of institutionalised inferiority. I cannot, with respect, agree with Auld LJ that FGM "is not, in the circumstances in which it is practised in Sierra Leone, discriminatory in such a way as to set those who undergo it apart from society". As I have said, FGM is an extreme expression of the discrimination to which all women in Sierra Leone are subject, as much those who have already undergone the process as those who have not. I find no difficulty in recognising women in Sierra Leone as a particular social group for purposes of article 1A(2). Had this submission been at the forefront of the second appellant's case in the Court of Appeal, and had that court had the benefit of the UNHCR's very articulate argument, it might, I think, have reached the same conclusion. If, however, that wider social group were thought to fall outside the established jurisprudence, a view I do not share, I would accept the alternative and less favoured definition advanced by the second appellant and the UNHCR of the particular social group to which the second appellant belonged: intact women in Sierra Leone. This was the solution favoured by Arden LJ, and in my opinion it meets the Convention tests. There is a common characteristic of intactness. There is a perception of these women by society as a distinct group. And it is not a group defined by persecution: it would be a recognisable group even if FGM were entirely voluntary, not performed by force or as a result of social pressure.
"108. While the Quijano decision explains why Mrs K's case had to reach this House, it is much harder to explain why Miss Fornah's had to do so. We have been referred to case law from many different jurisdictions in which FGM has been held, not only to be persecution, but persecution for a Convention reason. We have been referred to none at all where it has not. The United Kingdom is apparently alone in the civilised world in rejecting such a claim. Nor do we reject them all: the Court of Appeal in P and M v Secretary of State for the Home Department [2004] EWCA Civ 1640; [2005] Imm AR 84 had no difficulty in accepting the claim of a young Kenyan Kikuyu woman who feared that her father would force her to undergo FGM."
CG [2007] UKAIT 00041, at [63], the AIT accepted that the evidence before it
"strongly supports the view, in the light of the proper legal criteria now clarified by [Fornah] that Kenyan women belonging to those ethnic groups where FGM is practiced are properly to be regarded as falling within a particular social group for the purpose of being a refugee...".
20. For my part, I consider that the reasoning of the Tribunal was essentially sound as to the jurisdictional ambit of a reconsideration. But that does not provide the complete answer to what should be the scope in practice of any particular reconsideration. The jurisdiction is one which is being exercised by the same tribunal, conceptually, both at the first hearing of the appeal, and then at any reconsideration. That seems to me to be the key to the way in which reconsiderations should be managed in procedural terms.
21. In the first instance, in relation to the identification of any error or errors of law, that should normally be restricted to those grounds upon which the immigration judge ordered reconsideration, and any point which properly falls within the category of an obvious or manifest point of Convention jurisprudence, as described in Robinson (supra). Therefore parties should expect a direction either from the immigration judge ordering reconsideration or the Tribunal on reconsideration restricting argument to the points of law identified by the immigration judge when ordering the reconsideration. Nothing in either the 2004 Act or the rules, however, expressly precludes an applicant from raising points of law in respect of which he was not successful at the application stage itself. And there is no appellate machinery which would enable an applicant who is successful in obtaining an order for reconsideration to challenge the grounds upon which the immigration judge ordered such reconsideration. It must however be very much the exception, rather than the rule, that a Tribunal will permit other grounds to be argued. But clearly the Tribunal needs to be alert to the possibility of an error of law other than that identified by the immigration judge, otherwise its own decision may be unlawful.
22. As far as what has been called the second stage of a reconsideration is concerned, the fact that it is, as I have said, conceptually a reconsideration by the same body which made the original decision, carries with it a number of consequences. The most important is that any body asked to reconsider a decision on the grounds of an identified error of law will approach its reconsideration on the basis that any factual findings and conclusions or judgments arising from those findings which are unaffected by the error of law need not be revisited. It is not a rehearing: Parliament chose not to use that concept, presumably for good reasons. And the fact that the reconsideration may be carried out by a differently constituted tribunal or a different Immigration Judge does not affect the general principle of the 2004 Act, which is that the process of reconsideration is carried out by the same body as made the original decision. The right approach, in my view, to the directions which should be considered by the immigration judge ordering reconsideration or the Tribunal carrying out the reconsideration is to assume, notionally, that the reconsideration will be, or is being, carried out by the original decision maker.
i. whether on return there is a well-founded fear of being persecuted under the Geneva Convention;
ii. whether on return there are substantial grounds for believing the person would face a real risk of suffering serious harm within the meaning of paragraph 339C of the amended Immigration Rules; and
iii. whether on return there are substantial grounds for believing that the person would face a real risk of being exposed to a real risk of treatment contrary to Article 3 of the ECHR.
- Whether there is a sufficiency of protection available to the Appellant and /or her daughter, from the authorities, anywhere outside her home area in Kenya, so that she would not then be a refugee or at real risk of serious harm contrary to article 3.
- Whether, in the event that there is such a sufficiency of protection, it would nevertheless be unreasonable, in the sense that it would be unduly harsh to require the Appellant and her children to relocate to the place (one of the places) where it is said that she may reasonably be expected to go, so that she is nevertheless a refugee.
- Whether, if the Appellant is not a refugee, she is entitled to humanitarian protection.
- Whether, in considering and deciding a claimed prospective breach of article 3 ECHR, there is a requirement to apply the concept of 'internal flight' or 'internal relocation' or 'internal protection alternative.'
- Whether, further or in the alternative, removal would be contrary to the United Kingdom's obligations under article 8 of the ECHR.
The Expert Evidence of Dr Knighton
"I have lived and worked in Uganda and Kenya for nine years altogether, starting in January 1984. My work there for the Anglican church involved hundreds of interviews to test the probity, financial and personal inter alia, of many categories of people. Most of my time in the UK since 1983 has been spent in the study and research of East Africa, including my doctoral thesis in the University of Durham (Knighton 1990). I lived south of Mount Kenya and worked among the Agikuyu (Kikuyu) from 1991-8. I have returned there in connection with my academic work about annually on average, and did so in December-January 2005, when I interviewed Agikuyu women about their initiation which involved Female Genital Cutting (FGC) in every case. I have taken an interest in Muingiki (Mungiki in the English press) for more than four years. I am part of the African Studies circle in University of Oxford and Ph.D Programme Leader in the Oxford Centre for Mission Studies. I have ongoing contact with many Kenyans and Agikuyu, some among my research students. I am thus in a relatively advantageous position to understand the context from which FK, 'the Appellant', comes.
"The exact membership figures of the movement remain as controversial as its operations, ranging from 1.5 million, 2 million, 4 million and more recently 7 million, according to its leaders. (Daily Nation, 24 June 2007).
Sadly, the Kenya government's iron-clad response to the Mungiki extremists – estimated at between 1.5 and 2 million and mainly youths between 18 and 40 years, with 400,000 of them as women-reveals an unsettling lack of appreciation in official circles of the depth and complexity of Africa's youth crisis. (Kagwanja, Peter 'Africa Insight' : When Africa ignores the youth, its warlords celebrate' (Daily Nation, 22 June 2007)."
"82. There are millions of Kikuyu women in Kenya who live their lives in a way which might not find approval by the Mungiki sect members. As we have indicated, there is nothing within the objective evidence to indicate any widespread or significant targeting of such women by the Mungiki sect. The activities of this sect, as can be gleaned from the reports, link it more to their criminal activities and business interests rather than seeking to enforce the widespread use of FGM. Were an individual to frequent the minibus premises in Nairobi she is more likely to come to meet Mungiki sect members than were she to live in a town or village that did not espouse such values as the sect reflects."
"67.It is noted that there is opposition to the practice from many churches both Pentecostal and Roman Catholic. Dr Knighton speaks of the lack of feasibility of individual church congregations giving refuge in the long term. Such seems to us, however, to fundamentally misunderstand the nature of the relocation which is being sought. Clearly it would not be right to expect an individual to remain in hiding or be sent to some remote area in a dry desert or a cold climate to live virtually as a prisoner. However, from what we understand of church culture in Kenya a church informs the morality and the community spirit of the community which forms around it and worships within it. There may indeed be churches which, according to Dr Knighton, would say one thing and practice another. We are concerned, however, with those congregations, and we find that there would be many, who provide a focus for the community. We do not consider that Dr Knighton's view, that such church communities would demand that the individual be self sufficient, is consonant with the evidence showing the active work done by the church to help all of the congregation. It is difficult to understand what he means by such terms. We can see little reason why a caring church community would not offer assistance and support. There are a number of CBOs and NGOs operating within Kenya. We have regard to the letter from the British High Commission in Nairobi of 14 November 2005. All these organisations that are set out therein could potentially provide support and assistance. The letter from the British High Commission is, as we so find, fairly balanced in its response to the questions posed. There are indeed high unemployment rates, "throughout Kenya the CPO's, NGOs and self-help groups do give assistance to the destitute and those girls and woman attempting to avoid FGM". Dr Knighton sought to dismiss that letter as emanating from an organisation with a "cloistered existence". Once again that is somewhat of an overstatement of reality. For our part we can see no basis for that statement. It is the function of the embassy to be well informed and there is nothing to indicate that it is not so.
93. The appellant in her village worshipped as part of Christian family. There is no reason to believe that she would not be welcome in other churchgoing communities. We have no doubt that a caring church community would offer assistance to the appellant in order for her to establish herself and her family. After all, her own experience has been of receiving considerable generosity from a church with which she had only the briefest association; the Priest being willing indeed to provide the funds for her to come to the UK. It is of course to be recognised that without her husband the appellant may be at a disadvantage. However, there must be many widows who survive within the Kikuyu community".
"3.6.2. Treatment. The law prohibits FGM; but it is still practised particularly in the rural areas. According to the Government's August 2004 Demographic and Health Survey, 32% of the women had undergone FGM. FGM is usually performed at an early age. In September 2004, an international conference on FGM in Nairobi reported that, of the county's 42 ethnic groups, only four (the Luo, Luhya, Teso and Turkana) did not practise FGM. According to an NGO (Development of Women), the percentage of girls undergoing the procedure was 80%-90% in some districts of Eastern Nyanza and Rift Valley Provinces.
3.6.3. In 2006 there was more public awareness and programmes to stop the practice, in which government officials often participated. Some churches and NGOs provide shelter to girls fleeing their homes to avoid the practice, but community elders and some politicians frequently interfered with attempts to stop the practice. A media report in January 2006 noted that the frequency had dropped in one district to 54% compared to 93% in 1999. In 2005 there were a number of arrests of individuals accused of applying forced FGM. In 2006 government officials continued to attempt to stem FGM. In December 2006 the provincial commissioner of Rift Valley Province was quoted as having declared that any civil servant condoning or supporting FGM(such as nurses or local chiefs) would be fired. He added that the parents of girls subjected to the practice would be arrested.
At 3.6.5. and 3.6.6. there is reference to examples of the authorities arresting and prosecuting those accused of performing forced FGM and to the creation of 'no cut' initiation rites for girls, for example, by the Family Planning Association of Kenya ('initiate me through education').
3.6.7 Internal relocation. The law provides for freedom of movement and the government generally respected that right in practice… FGM is a regionalized practice, mainly in Eastern, Nyanza and Rift Valley Provinces. Having regard to the guidance in FK,…it is unlikely to be unduly harsh for those who fear being forced to undergo or perform FGM to internally relocate to another region to escape this threat."
"Mungiki Sect
Apologetics Research Resources on religious movements, cults, sects, world religions and related issues has reported on Mungiki that: "The formation of Mungiki sect remains a mystery to many Kenyans. There have been contradicting statements. Some reports say the group possibly started in 1988 with the aim of toppling the government of immediate former president of Kenya, Daniel Torotich arap Moi. Those who share this thinking believe the group was an offshoot of Mwakenya, an underground movement formed in 1979 to challenge the Kenya African National Union (KANU) regime. Other reports indicate that Mungiki was founded in 1987 by some young schoolboys." (Apologetics Research Resources) [41]
Confronted by authorities, their swift defence would be that theirs was a group of traditionalists interested only in re-introducing and promoting traditional way of life among the Kikuyu ethnic group. They posed as a traditional religious group, but an unusual one because taking snuff during worship was their trademark. But their hardline stand against Western idiologies put them on a collision course with the police. They started stripping naked in public, ladies wearing miniskirts and long trousers, and violently promoted female cut [Female circumcision - AI]. They would engage police in fierce running battles, and on a number of occasions, violently raided police stations to 'free arrested members'." (Apologetics Research Resources) [41]
Their violent activities intensified. They systematically and forcefully began taking over management of commuter service vehicles, popularly known as Matatu. In March last year, they clashed with a vigilante group in Nairobi, and later unleashed terror on residents of a slum area, killing 23 people and injuring several others. This prompted the government to outlaw their grouping. They however, continued to exist, and even more openly propagated their warlike activities." ...Apologetics Research Resources) [41]
BBC News has reported in an article 'Kenya's secretive Mungiki sect', dated 24 May 2007, that: "Today, Mungiki followers no longer sniff tobacco in public and have traded in the dreadlocks and unkempt appearance for neat haircuts and business suits. The religious bit is just a camouflage. It's more like an army unit. They extort, engage in fraud, robbery, murder and even kidnap their victims. Media reports say the sect has evolved over the years into an organised and intimidating underworld gang with bases in the capital, Nairobi, and parts of Central and Rift Valley Provinces. They control public transport routes and demand illegal levies from operators. Mungiki followers reign supreme within city slums, notably Mathare in the east of the capital. Here they provide illegal water and electricity connections to hundreds of makeshift shacks." (BBC News, 24 May 2007) [10f]
The BBC article also reports that: "Residents of the slums also have to pay a levy to the sect to be able to access communal toilets and for security during the night in the crime infested slums. Following the latest gruesome murders, the government has vowed to wipe out the group but many Kenyans feel there is a lukewarm approach to counter activities of the sect. Its leadership has openly claimed to have two million members around the country and to have infiltrated government offices, factories, schools and the armed forces. "Mungiki is a politically motivated gang of youths," says Ken Ouko, a sociology lecturer at the University of Nairobi. Mr Ouko suggests that security forces should infiltrate Mungiki to be able to counter its growing influence in Kenya. But the sect is known to operate in secrecy, a fact that is complicating efforts by the police to identify its members as the crackdown on them continues." (BBC News, 24 May 2007) [10f]."
"Women
Although all forms of violence against women are prohibited, domestic violence against women was a serious and widespread problem. The penal code does not contain specific provisions against domestic violence, but treats it as an assault. Police generally would not investigate in cases of domestic violence, which they considered private family matters. The 2004 Kenya Demographic and Health Survey revealed that more than half of women had experienced domestic violence after the age of 15 years. Wife beating was prevalent and largely condoned by much of society. NGOs, including the Law Society of Kenya, provided free legal assistance to victims of domestic violence. On July 14, [2006] President Kibaki signed into law the Sexual Offenses Act, which criminalized rape, defilement, child pornography and sex tourism, and sexual harassment; the law had not been implemented by year's end." (US State Department: Human Rights Practices Kenya 2006) [4a](section 5)
The new law maintained the existing penalty of up to life imprisonment for rape, although actual sentences usually were no longer than 10 years. The law established minimum sentences for both rape and defilement, with higher penalties for the latter. The rate of prosecution remained low because of cultural inhibitions against publicly discussing sex, a fear of retribution against victims, the disinclination of police to intervene in domestic disputes, and the unavailability of doctors who otherwise might provide the necessary evidence for conviction. Moreover, traditional culture permitted a husband to discipline his wife by physical means. Neither the new law nor previously existing laws specifically prohibit spousal rape. According to police statistics, there were 2,736 rapes nationwide during the year [2006] compared with 2,867 reported in 2005.Available statistics underreported the problem, since social mores discouraged women from going outside their families or ethnic groups to report sexual abuse. Human rights groups estimated that over 16,000 rapes were perpetrated annually." (US State Department: Human Rights Practices Kenya 2006) [4a](section 5)
Female Genital Mutilation (FGM)
The law prohibits FGM, but is still practiced, particularly in rural areas. According to the UN Children's Fund (UNICEF), 32 percent of women had undergone FGM. In 2004 an international conference on FGM in Nairobi reported that of the country's 42 ethnic groups, only four (the Luo, Luhya, Teso, and Turkana, comprising 25 percent of the country's population) did not traditionally practice FGM. According to the NGO Maendeleo Ya Wanawake (Development of Women), the percentage of girls undergoing the procedure was 80 to 90 percent in some districts of the Eastern, Nyanza, and Rift Valley provinces. There were more public awareness and programs to stop the practice in which government officials often participated. For example, in December a Methodist and a Presbyterian church group conducted alternative ceremonies for 500 girls and boys." (US State Department: Human Rights Practices Kenya 2006) [4a](section 5)
FGM usually was performed at an early age. Some churches and NGOs provided shelter to girls who fled their homes to avoid the practice, but community elders frequently interfered with attempts to stop the practice. A January media report noted that the frequency had dropped in one district to 54 percent compared to 93 percent in 1999 before awareness campaigns began targeting FGM. Despite anti-FGM programs, which increasingly focused on young men to convince them to marry women who had not undergone FGM, women and children who had not undergone FGM faced social stigma." (US State Department: Human Rights Practices Kenya 2006) [4a](section 5)
In December 2005 there were a number of arrests of individuals accused of applying forced FGM. For example, four parents were arrested along with a man who performed FGM. In mid - December 2005 a woman in Nyandarua District plead guilty in court for subjecting four girls to FGM. During the same month, the Kuria district commissioner called for police to arrest parents who forced their daughters to undergo the procedure. In April 2005 17 girls in Marakwet District fled to avoid FGM and were given shelter in Eldoret by the NGO Center for Human Rights and Democracy. In April 2005 police forcibly removed the girls from the shelter and returned them to their villages. According to a media report, 20 girls were still in hiding with the aid of a church in Marakwet District three years after they fled their homes to avoid FGM. Government officials continued to attempt to stem FGM. In December, the provincial commissioner of the Rift Valley Province was quoted as having declared that any civil servant condoning or supporting FGM (such as nurses or local chiefs) would be fired. He added that the parents of girls subjected to the practice would be arrested." (US State Department: Human Rights Practices Kenya 2006) [4a](section 5)
HIV/AIDS
The [HIV/AIDS] epidemic in Kenya peaked in the late 1990s with an overall HIV prevalence of 10% in adults; this declined to 7% in 2003, and the most recent sentinel surveillance evidence indicates that adult prevalence has now fallen to 6.1% as of end 2004. (UNGASS)[8a](p5) Currently all provincial hospitals and 70 district hospitals are providing comprehensive HIV care including core components of counselling services, prevention and treatment of OIs [opportunistic infections] and ARV [anti-retro virals]. … Because of reduced costs, mobilisation of resources, and the development of guidelines and systems, there has been a six-fold increase in the number of patients on ARV therapy, from 3,000 patients in 2002 to 54,000 by September 2005 (Report on the Joint AIDS Programme Review 2005, NACC). Just over nineteen and a half percent (19.7%) of women and men with advanced HIV infection received antiretroviral therapy in the first 3 quarters of 2005." (UNGASS) [8a] (p26)"
a. Psychiatric reports of Dr Christopher Buller dated 27th April 2005 and 17th November 2006 (A's bundle section A pp 162-177 and section B pp 1-21);
b. Letter of Karen Williams CPN for SW Yorkshire Mental Health NHS Trust dated 22nd January 2007, with annex copy note of Dawn Hart CPN (A's bundle section B pp 22-24);
c. Report(s) of Anne Wilkinson of Kirklees Rape and Sexual Abuse Counselling Centre dated 28th April 2004 and 19th January 2007 (A's bundle section A pp 37-38, section B p 25)
The Law and the Burden and Standard of Proof
"Owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality, and is unable, or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence is unable, or, owing to such fear, is unwilling to return to it."
Submissions, Consideration and Findings
"The mayhem that killed hundreds of people following Kenya's election on 27 December completes a depressing cycle of democratic abuses in Africa's biggest countries…In stealing the election, Mr Kibaki has also invited a dangerous backlash against his Gikuyu tribe, the country's largest. Tense tribal divisions have long threatened to widen as the minority groups, including opposition leader Raila Odinga's Luo, have come to feel marginalized by the concentration of power in Gikuyu hands. If the current violence does evolve into something worse, perhaps even civil war, Mr Kibaki and his henchman will bear much of the blame"
"The reaction to the swearing-in was immediate. Nairobi's slums exploded in rage. The poor killed each other. Across the country came a swelling up of tribal violence, sometimes Kikuyu against Mr. Odinga's Luo tribe, more often Luo and other tribes against Kikuyu. Hundreds have been killed so far and 80,000 displaced. Gang rapes and mutilations are widespread. Police have orders to shoot to kill. There has been looting in Kisumu, riots in Mombasa and pitched battles in Eldoret... Kikuyu hiding in a church near Eldoret were burned alive by a mob…
Taken together, this amounts to a pulling apart of Kenya's rich national fabric. Some 97% of Kikuyu voted for Mr. Kibaki. Everywhere else he was trounced. Muslims, for instance, voted against Mr. Kibaki by 70% or more. The Kikuyu highlands encircling the glaciers of Mount Kenya increasingly feel like a state within a state. The division is even more troubling when the parliamentary vote is taken into account. Mr. Kibaki lost half his cabinet, including his vice-president, as well as a large number of seemingly unassailable members of parliament. This government may find it impossible to pass a budget."
"Every day women turn up at the doors of Nairobi's hospitals and clinics telling the same story.
"I could not run away. They gagged my mouth and pinned me down," one woman remembers.
"After raping me they blindfolded me and led me to a nearby forest. That's where they left me."
Her experience - doctors, officials and the UN say - is echoed by hundreds of other women who have survived a spiralling number of sexual attacks.
Many are gang rapes, carried out by groups of armed men.
Staff in the Nairobi Women's Hospital - one of Kenya's leading centres for the treatment of rape and sexual violence - say they have seen double the number of cases affecting women, teenagers and girls since January.
"Since the beginning of the month, we have had 140 cases of rape and defilement," said Rahab Ngugi, patient services manager at the hospital.
"We were used to seeing an average of about four cases a day, now there is an average of between eight and 10."
Almost half of the cases at the hospital's specialised clinic are girls under the age of 18, Ms Ngugi said. One case was a two-year-old baby girl.
She knows that such a dramatic rise in numbers presenting at the clinic indicates that the reality beyond is far worse.
Tip of iceberg
Only a small percentage of women actually come to receive medical treatment and counselling in the immediate aftermath of a sexual attack, she said. It means they do not get access to the drugs which might prevent the onset of HIV.
"It is the tip of the iceberg," Ms Ngugi said. "At any time of unrest, of violence, or rioting, women and children are targeted. It is revenge, it is war. People are fighting and the weakest ones get abused."
…
"Women's position of relative weakness in society is emphasised in times of conflict" Kathleen Cravero, Director of the UNDP's Bureau for Crisis Prevention and Recovery said.
"Battles are fought on women's bodies as much as on battlefields. It is not so much that women are targeted in some deliberate way but their vulnerability makes them easy targets for anger, for frustration, and for people wanting to cripple or paralyse other segments of the community in which they live."
She says there is no evidence as yet that Kenya's high levels of sexual violence are ethnically motivated rather than opportunistic and criminal.
But the doubling of rape cases, she says, is "a very, very strong indicator of a serious problem" adding that the actual numbers are without doubt far higher."
"A Kenyan (who wishes to remain anonymous) in the Rift Valley town of Naivasha describes how members of an outlawed sect - the Mungiki - are forcibly recruiting members of their Kikuyu ethnic group to kill non-Kikuyus - allied to the opposition.
The BBC observed that: "Kenyan politics is polarised and because of this, when a community feels threatened, groupings or gangs arise in their defence."
"The Rift Valley has become a hub for much of the ethnic violence that has worsened sharply in the past fortnight. In Nakuru, north-west of Naivasha, at least 80 people have been killed. Now it is often a case of simple revenge, Kikuyus striking back against their Luo and Kalenjin tormentors who, in turn, did most of the killing immediately after the disputed election of December 27th. At least 1,000 have since died and 200,000 been driven from their homes. The cycle of bloodshed may be gathering its own momentum beyond the control of Kenya's political leaders…
In any event, the shooting dead, in separate incidents, of two Orange MPs, set off more spasms of lethal riots in the capital's slums and elsewhere. One was Mugabe Were, a Luhya who was popular in Nairobi; the other was David Too, a Kalenjin. In the Luos' provincial capital, Kisumu, more Kikuyus were butchered and "necklaced" with burning tyres by Luo youths.
Kenya is rife with rumour. Some say there are furious disagreements within Mr. Kibaki's circle in State House. Others say he is poised to impose a state of emergency. Among Kikuyus, there is fearful talk of Luo militias loyal to Mr. Odinga being trained in southern Sudan…
All sides realise that an escalation in violence from machetes to machineguns would be ruinous for all Kenyans. So far, the use of traditional weapons, including clubs and poisoned arrows, has caused the flight of several hundred thousand Kenyans who belonged to ethnic minorities in their places of abode—for instance, Luos in Central Province and Kikuyus in the west. Wholesale slaughter has yet to occur on the scale of Rwanda in 1994, but the prospect hovers in people's minds. Indeed, the fear spreading across the country may offer Mr. Annan his best chance of success.
… if there is no breakthrough, Kenya could tear apart even more drastically along ethnic lines, with Mr. Kibaki's Kikuyu-dominated government controlling the wealthy centre of the country up to Nakuru, north-west of Nairobi, while Mr. Odinga's Orange opposition holds sway over the west and much of the north. Most of the Kalenjin people in the Rift Valley are hostile to Kikuyu political domination.
For many Kenyans this is both an appalling and, until recent events, incredible prospect. The country's largest newspaper, the Daily Nation, which had slightly favoured Mr. Kibaki during the election campaign, has lost patience with him. An editorial declared that the government's "inertia and ineptitude" were "exposing base instincts and driving the country back to pre-colonial times".
"During the last few weeks, the world has watched in horror as rival gangs of Kenyan slum dwellers attack and kill one another. Even Members of Parliament are now being targeted.
The anti-government vigilantes from the Luo tribe have come to call themselves "Taliban" (this despite the fact that these Luo are mostly non-Muslims). Pitted against them are the Kikuyu --in particular, Kikuyu followers of the "Mungiki.
On Jan. 9, Maina Kiai, head of the state-funded National Commission of Human Rights, accused President Mwai Kibaki's Kikuyu dominated government of "activating" members of this mysterious, formally banned sect. Government spokesmen have dismissed the claim as groundless. But Muthoni Wanyeki, the chairperson of an independent Kenya-based human rights monitoring group, suggests politicians from both tribes are financing and encouraging semi-organized tribal militias. Given the Mungiki sect's particularly violent history, it would be surprising if one side or the other hadn't sought to co-opt them."
("From Mau Mau to Mungiki: 50 Years Later, Kenya is Still a Bloody Mess" (National Post (Canada), 5th February 2008).
"As the road approaches Kisumu, Kenya's third-biggest city and capital of the Luos, the country's third-biggest but angriest ethnic group, it becomes littered with rubble and burnt vehicles. A man beats at a smouldering ambulance's number-plate with his machete. "See," he explains, "this belongs to the government of Kenya." Mobs cry out for their fellow Luo, Raila Odinga, to be made president of Kenya. They plead for guns. An earnest man pushes to the front of one mob. "What we are saying is give violence a second chance."
On a bridge outside Oyugis, a small town a couple of hours' drive south of Kisumu, angry Luos have overturned a lorry, pulled down a telegraph pole and are waiting. When your (white) correspondent happens along, they take aim with stones, machetes and poles. But what they wanted was a Kikuyu to kill—any Kikuyu. All the main roads in the area are punctuated with road blocks. Some travellers do not get through. At least 25 have been hacked to death or killed with poisoned arrows in Nyanza in the past few days.
Across Luoland, from the unlettered to the university-educated, they tell the same tale of woe: that they have been politically and economically maltreated since independence. Provision of electricity and roads is far worse than in Kikuyuland. Many government projects in Nyanza, including cotton- and rice-growing, have failed. It irks Luos that the fish they catch in Lake Victoria are processed by Kikuyus in distant Central Province. A brain drain of able Luos into Kenya's civil service has dried up. Luos say that a Luo name is sometimes a handicap in getting a job in business. Poverty among Luos has risen, even as Kenya's economy has grown.
In the past few weeks, Kisumu has been ethnically cleansed. The Luos have driven out 20,000 or so Kikuyus from a population of 380,000; few will return. Every Kikuyu business and home has been looted and burned. The UN recently chose Kisumu as a "millennium city", with plans to turn it into a kind of hub. Now many of its streets are gutted and charred. Thousands of jobs have been lost; nearly three-quarters of Kisumu's people are out of work…
Nobody has been angelic
Kenya's 4m or so Luos, most of them in Nyanza, voted overwhelmingly for Mr. Odinga in the disputed election on December 27th. The Kikuyu-led party backing his rival, the incumbent president, Mwai Kibaki, was most blatant in ensuring that his tally of votes in the Kikuyu heartland north of the capital, Nairobi, was inflated. But Mr. Odinga's Orange Democratic Movement was not spotless; some ballot boxes in Nyanza were reportedly stuffed on his behalf. In any event, nearly all Luos still want Mr. Kibaki forced from office. If he stays, they say, it will mean civil war. There is a risk that Luoland might peel off—and a further risk that Mr. Kibaki may feel forced to send in troops to stop that happening. For the time being, the Luo areas look ungovernable by Mr. Kibaki or by any Kikuyu-led administration.
In other parts of Kenya, not just in Luoland, the mood is so febrile that it is hard to see how the social fabric can be restored. Atrocities have been widespread. Most of the Luhya (the country's second-biggest group, unrelated to the Luo), most of the ten or so Kalenjin-speaking peoples of the Rift Valley, most of Kenya's Muslims and most of Kenya's poor in the vast slums that ring Nairobi backed Mr. Odinga. Many of them are angry. Some have vented their spleen against Kikuyus living among them, often chasing them away, burning their houses and shops and sometimes killing them.
The violence has been especially bad in parts of the Rift Valley where different groups had intermingled as a result of the redistribution of former white-owned land since independence. In other parts of the country, especially in the Kikuyu heartlands, Mr. Kibaki's backers have treated Luos with similar harshness.
But it is wrong to paint a picture simply of Kikuyus and the closely related Embu and Meru, who together make up about 28% of Kenyans, pitted against the rest. Many groups have mixed allegiances. Most of the Kamba, Kenya's fifth group, which has been traditionally well-represented in the army, backed a 54-year-old former foreign minister, Kalonzo Musyoka, who won about 9% of the presidential poll and was promptly appointed vice-president by Mr. Kibaki. As a result, many Kamba may rally to his cause—and perhaps even join a pro-Kibaki coalition in the (so far unlikely) event of a fresh election. Other tribes, such as the Kisii (6% of the total) have been divided, though most of them voted against Mr. Kibaki.
Amid this messy ethnic mayhem, peace talks in Nairobi look unlikely to restore calm any time soon. A former UN secretary-general, Kofi Annan, has managed to bring representatives of Mr. Kibaki's government and Mr. Odinga's movement to the negotiating table, which is progress of a kind. But the president has so far shown no sign of making serious concessions. Mr. Annan has also gathered some of the country's leading businessmen to stress the damage being done to the economy. Tourism and agriculture have been badly hit… Meanwhile, the human toll is rising. The local Red Cross says that more than 1,000 people have been killed in the past five weeks or so, and more than 300,000 displaced."
"First they sent leaflets saying they would avenge the killings of their tribesmen when violence flared following Kenya's disputed election. Then they told other tribes to leave certain areas.
People's fears had come true. The Mungiki were back.
Hundreds of men wielding machetes and clubs, attacked their opponents beheading and dismembering them in characteristic style.
The violence has largely abated for now, as politicians negotiate their way towards a political settlement, but the re-emergence of this quasi-religious group could plague Kenya for years to come.
The Mungiki has been outlawed by the authorities, with whom it has been engaged in a protracted battle spanning more than 20 years.
At first they styled themselves as the guardians of Kenya's largest community, the Kikuyu, who include President Mwai Kibaki among their number, saying they would re-establish ancient traditions.
Attracting large numbers of jobless teenagers, the group soon became an underground youth wing for politicians, who used it to unleash terror on their opponents.
Mungiki became a criminal gang terrorising urban slums and demanding protection money from transport operators.
"We received leaflets warning us to leave or face death," Amunga, a resident of a town in central Kenya, told the BBC.
"They said they would behead anyone who supported the opposition. They gave us just seven days to leave.""
"Re-emergence
Before the elections, police vowed to eliminate the Mungiki once and for all.
At one point human right organisations accused the police of executing more than 500 members of the group.
Although the police denied the accusation, the recovery of hundreds of bullet-ridden bodies on the outskirts of Nairobi made some think the Mungiki had at last been wiped out.
But the post-election violence appears to have breathed new life into this group.
Their re-emergence followed the killing of hundreds of Kikuyus in opposition strongholds in western Kenya.
The Mungiki scented blood and wanted vengeance.
Soon Mungiki gangs were attacking members of other tribes and hacking them to death.
It is not clear who finances the Mungiki, although it has been suggested they are in the payroll of some politicians.
Recently the Mungiki have been confronting women wearing trousers, forcing them to change into skirts or long dresses.
They say wearing trousers goes against the Kikuyu culture.
It is feared that if the electoral crisis persists, the gangs could become even more dangerous."
"NAIROBI, 29 February 2008 (IRIN) - While lauding the agreement between Kenya's two main political parties on power-sharing, humanitarian actors say the hard work has yet to begin - resettling the displaced and reconciling all Kenyans.
[…]
Under their agreement, Kibaki and Odinga will share power, with the creation of a prime minister's post to accommodate Odinga's Orange Democratic Movement.
In Nakuru, IDPs had mixed reactions to the deal. "Most IDPs here in the camp [almost entirely Kikuyu] feel President Kibaki has sold them out - they see this agreement as strengthening their enemies," Jesse Njoroge, the camp's coordinator, told IRIN. "Similarly, many Kalenjin people in town feel shortchanged - the post of prime minister, they feel, should have gone to William Ruto, and so they feel all the hard work they did in the run-up to the election has been lost to Nyanza Province."
The Nakuru Showground is hosting at least 12,800 IDPs.
"The announcement has had no major effect here," Njoroge said. "The IDPs feel that an agreement at the national level does not guarantee their safety and security at the grassroots level - these agreements don't always trickle down."
He said the IDPs would only consider returning to the homes once the security situation improved significantly, "to a point where they are able to live safely side by side with the people who evicted them. A few IDPs are ready to leave the camp yet they are waiting to see if they will be compensated for what they've lost," he said.
He added: "What is important is not co-existence of leaders, but co-existence of Kenyans.""
"Mr Odinga will become prime minister, with wide-ranging executive powers; Mr Kibaki will stay as president. Cabinet posts will be shared between their nominees. Parliament will entrench some constitutional amendments to shift the balance of power between president and prime minister.
It remains to be seen how the sharing of power will work in practice, especially after all the bad blood that has been spilt between the pair over many years. But the creation of the post of prime minister, which had not existed, was a victory for Mr Odinga. Mr Kibaki's people had previously insisted that, if there were to be a prime minister, he should have limited executive powers. This, it seems, will not be the case.
The other most ticklish issue was whether the presidential election, which most independent observers reckoned was rigged, would be run again—and, if so, when. It is unlikely to be held in the near future. But it remained unclear whether Mr Kibaki would serve a full five-year presidential term.
It will take time for confidence to be rebuilt. Well over 1,000 people have been killed in the post-election violence. At least 300,000 people have been displaced by ethnic cleansing. Many of them will be wary of returning to their old homes soon. Kenya's economy has taken a bad knock. Above all, the country's reputation as a hub of stability and moderation in a volatile region has been sorely damaged. Even if the agreement signed this week holds, things will not easily return to normal."
"Kenyan police have shot dead two members of the outlawed Mungiki sect in a chase in a slum of the capital.
Police spokesman Eric Kiraithe confirmed that the two had been evading arrest and were killed after they ignored orders to surrender.
The incident comes a day after Charles Ndungu, chairman of the sect's political wing, was shot dead.
No date has been given for talks due to be held between the new government and Mungiki leaders to stop the violence.
There have been fears that the planned meeting would be aborted following Mr Ndungu's killing, but sect members have not commented on the incident.
Police have denied involvement in the killing and have launched an investigation.
They suspect he may have been killed by a rival group within the Mungiki sect.
The Mungiki, mainly drawn from President Mwai Kibaki's Kikuyu ethnic group, run transport rackets in the capital, Nairobi, and are likened to Kenya's version of the mafia.
Deadly riots
Correspondents say the sect has a large presence in Dandora slum to the east of the capital, the scene of Tuesday's shooting.
"The two were wanted for a robbery and a string of murders and beheading within and outside Nairobi and our officers caught up with them in Dandora," Mr Kiraithe told the BBC News website.
Two weeks ago the wife of the Mungiki's jailed leader was found beheaded, sparking deadly riots in the capital and surrounding areas.
It was only after Kenya's new Prime Minister Raila Odinga agreed to meet the group and address their concerns, that threats of further disruption were withdrawn.
Last year, more than 100 suspected sect members were killed in a police crackdown after a series of grisly beheadings blamed on the sect.
Sect members accuse the police of extra-judicial killings and want a special unit set up to counter their activities to be disbanded."
Refugee Convention Reason
CG [2003] UKIAT 00207 Ouseley J, President of the IAT as he then was,, in starting with a consideration of the case of Islam and Shah (above), begins with a caution which we consider worth repeating here:
"We emphasise what both Lord Steyn and Lord Hoffmann said: everything depends on the evidence and findings of fact in the particular case: 'generalisations as to the place of women in particular countries are out of place when dealing with issues of refugee status".
a. There is no requirement for there to be a voluntary, associational relationship
b. Members need not be homogenous nor does the group have to exhibit any particular degree of internal cohesion
c. A particular social group may include large numbers of persons.
d. The group may not be defined simply on basis of a shared fear of being persecuted. The persecution must exist independently of and not be used to define the social group.
a. Groups defined by an innate or unchangeable characteristic; whatever the common characteristic that defines the group it must be one that the members of the group either cannot change or should not be required to change because it is fundamental to their individual identities or conscience.
b. Groups whose members voluntarily associate for reasons so fundamental to their human dignity that they should not be forced to forsake the association
and
- Groups associated by a former voluntary status, unalterable due to historical permanence.
Internal Relocation
(i) Among Gikuyu the influence of the Mungiki is likely to be deeper and more pervasive than previously, by reason both of its ability to inflict retribution unhindered by the state and its de facto role as defender of Gikuyu communities from other militias, such the as Luo Taliban. This greatly increases the risk of detection of the Appellant by Mungiki attached to any attempt at relocation and the motivation of other Gikuyu, even if not themselves Mungiki, to act as informers to them;
(ii) the claimed option of relocation to non-Gikuyu areas relied upon on behalf of SSHD has effectively been foreclosed by the large scale ethnic division in Kenya, enforced by violence, seen since the elections and unlikely to disappear in the short or medium term due to the political stalemate between government and opposition. Insofar as violence has decreased, this evidently is due to the effective partition of almost the whole territory of the country following so-called ethnic cleansing of minority populations;
(iii) The very recent beheading of the wife of one of the Mungiki sect's leaders (BBC News 29 April 2008) can only increase concerns as to the risks to family members of those belonging to the Mungiki sect, particularly those who may have had a leadership role, as did the Appellant's partner.
(iv) Assuming that it were actually to be safe for the Appellant, with her children, to relocate, which we have not found, we ask whether it would be reasonable to require her to do so. We are satisfied that the economic circumstances which would permit a lone Gikuyu woman with two young children and the characteristics and history of this Appellant, to survive in Kenya, have been shown on the evidence not to exist in the absence of assistance from family and fellow mbari or tribe members. Even if the Appellant could, pre-election, have found work of some lawful nature, for example as a domestic servant to ex-patriots, through an agency, of which we are not persuaded, not least bearing in mind her ethic origin, compromised health, and her need to provide safety and care to her two young children, any such possibility has now been fundamentally undermined as a consequence of post-election violence and division;
(v) Other socio-economic circumstances, because of the large scale displacement of populations and disruption in food and health systems brought about by the post-election violence and ethnic division, would additionally tend to show relocation to be unreasonable in the sense that it would be unduly harsh.
CG [2007] UKAIT 00041, there is no sufficiency of protection in Kenya for a woman in the Appellant's position.
"But, putting that contentious issue to one side, it is obvious that the reasonableness of her relocation in a different part of Kenya requires consideration of the practicability of her settling elsewhere; consideration of her ability convincingly to present to those in her new milieu a false history relating to herself and to her daughter, including the latter's paternity, and a false explanation for their arrival there; and, in the light of her substantial psychological vulnerability, consideration of her ability to sustain beyond the short term a reasonable life for them both on that false basis.".
Article 8 ECHR
- R(Iran) and Others v SSHD [2005] INLR 637
- AG(Eritrea) v SSHD [2007] EWCA Civ 801
- HB(Ethiopia) and Ors v SSHD [2006] EWCA Civ 1713
- Huang[2007] UKHL 11
- Kugathas v SSHD [2003] EWCA Civ 31
- Senthuran v SSHD [2004] EWCA Civ 950
- Mukarakar v SSHD [2006] EWCA Civ 1045
- MT(Zimbabwe) v SSHD [2007] EWCA Civ 455
- AT(Guinea v SSHD [2006] EWCA Civ 1889
- CH(Jamaica) (Effects of delay-HB reaffirmed) [2007] EWCA Civ 792
- KR(Iraq) v SSHD [2007] EWCA Civ 514
- AC v IAT [2003] EWHC 389
- GS(Article 8-public interest not a fixity) Serbia and Montenegro [2005] UKAIT 00121
- MG(Assessing interference with private life) Serbia and Montenegro [2005] UKAIT 00113
- AL(Serbia) v SSHD [2006] EWCA Civ 1619
- AG and Others (Policies; executive discretions; Tribunals powers) Kosovo[2007] UKAIT 00082.
- AB(Jamaica) v SSHD [2007] EWCA Civ 1302 6 December 2007
Conclusions
"We have not been addressed on the tribunal's findings under these heads. Without doubt deliberately, these are not expressed as conclusions because the tribunal have yet to come, as they do next, to the appellant's own situation. The provisional findings are, in short, that within Kikuyu areas FGM can often be avoided; that Mungiki are not as serious a threat there as Dr Knighton suggests; and that in any event relocation to a non-Kikuyu area is feasible for a Kikuyu woman. We would comment only that in relation to a country where, despite laws forbidding it, up to half the women have undergone FGM and about a third are still expected or required to undergo it, it is particularly important to keep distinct the existence of a risk to women and the possibility of their finding safe refuge from it."
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. A decision to undergo FGM is said to be one made by the individual woman if an adult and by the parent(s) or other family members (e.g. a grandparent) if a child. However, since the practice is outlawed under the Children Act 2001, it would not appear that an adult could lawfully consent on behalf of a child. A child cannot lawfully consent to such a procedure. In law, an adult woman who does not consent to FGM may only rely upon making a complaint of assault under the criminal law. A woman may be placed under undue pressure by family, including her husband or partner and his family, and/ or community members, to agree to FGM for herself or for her child (see 6 below). There are only one or two examples of prosecution of those who have performed FGM, whether on children or women and sentences have been lenient.
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. A thorough examination of all the relevant factors must be undertaken in each case given the position of women within Kenyan society and the usual need for kinship links in the place of relocation in order to sustain such movement successfully. For example, under the customary law of most ethnic groups, a woman cannot inherit land and must live on the land as a guest of males who were relatives by blood or marriage.
5. Those who practise FGM are not, in general, reasonably likely (particularly in urban areas), to seek to inflict FGM upon women from ethnic groups or sub-groups which do not practise FGM.
6. In general, a woman and/or her child will only be at real risk of FGM if she comes from, or becomes connected by marriage, partnership or other family ties, to an ethnic group (or sub-group) where FGM is practised and 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.
7. There is evidence that the Mungiki seek 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. There is also evidence of the Mungiki imposing political and cultural beliefs upon others, for example by confronting in public women who are wearing trousers, stripping them and forcing them to change into skirts or long dresses.
8. The Mungiki is an organization that both uses and is used by government, with links to some politicians. It is an extremely secretive sect, the origins of which are unclear, whose members are oathed, and which, since at least the 1990s has left behind a trail of violence in its rejection of western culture. It is said to be the politically motivated wing of a religious organization, and to also have an armed wing akin to an army unit. Mostly drawn from the Gikuyu/Kikuyu and inspired by the Mau Mau rebellion of the 1950's against British colonial rule, thousands of young Kenyans flock to the sect. It is claimed by the leadership that it has at least 2 million members around the country, many of whom have infiltrated government organizations, offices, factories and schools, albeit mostly at a low level. They have been involved in battles with the police and have raided police stations to free detained members. Instead of or as well as clubs, machetes and swords, they also use AK-47 assault rifles. The authorities are unwilling or unable to control the Mungiki and the authorities use the Mungiki as agents of political violence, in particular at election time, which has been seen most recently following the first elections of the new millennium and the elections of 27 December 2007.
9. Through its Gikuyu/Kikuyu members who move around the country for work and those who run or are connected to the country wide taxi business (Matatu), the Mungiki has both a presence and an information network, particularly in urban areas and around bus and other transport stations across the country, albeit that the information network is not one that necessarily works speedily.
10. 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, in particular where the appellant is a Gikuyu/Kikuyu woman, when the Mungiki may be expected to take more particular interest in her and in any Mungiki connections that she may have, so that she may, dependant upon her characteristics and history, then become of adverse interest, and persecution or other serious harm may ensue. Although the Mungiki may also target those of other ethnic origin, for example the Luo, for political reasons); and (ii) she can reasonably be expected to live in that place, having regard to the general circumstances prevailing in it and the personal circumstances of the appellant (paragraph 3390 of HC 395). 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 Office and Others [2006] UKHL 5).
11. In considering internal relocation it is important to bear in mind the religious and/or cultural context, particularly as to whether there is any family or sub-clan support available to the woman in the proposed area of relocation. In general it will be easier for a member of a particular tribe to relocate to an area where there are others from her tribe to provide shared culture and support, rather than relocating to an area populated by a different tribe. Much will depend upon the individual circumstances of the woman and the availability or otherwise of a support structure within the proposed area of return. See also 4 above. In considering the issue of relocation it is important that the situation of the family and extended family be examined, particularly as to cultural context, education, economic lifestyle and work experience.
Decision
The appeal is allowed on asylum grounds.
By reason of paragraph 339C (ii) of the Immigration Rules, the Appellant is not entitled to the grant of humanitarian protection.
The appeal is allowed on human rights grounds (Article 3).
The appeal is allowed on human rights grounds (Article 8).
Senior Immigration Judge Jarvis Date: 14 May 2008
| Respondent |
| Undated | Map of Kenya | ||
| Circa 1974 | Map of distribution of ethnic groups in Kenya — from Map No. 501721, 1974, Perry -Castaneda Library Map Collection (page 79) | ||
| April 2003 | Country Assessment Documents for Kenya | ||
| December 2005 | Banking on Women — internet article, (date unclear but at least December 2005) | ||
| March 8 2006 | U.S. State Report Country Assessment Documents for Kenya | ||
| Circa 2007 | Internet articles from Catholic Relief Service, Kenya - 2007 | ||
| January 2007 | Key Documents | ||
| 6 March 2007 | USSDR on Kenya | ||
| 4 April 2007 | FK (FGM — Risk and Relocation) Kenya CG [2007] UKA1T 00041 |
||
| 6 November 2007 | BBC News: 'Keizi'a police accused over deaths' | ||
| 3 September 2007 | Operational Guidance Note, Kenya |
| Appellant |
| Undated | Appellant's Statement and Responses to Reasons for Refusal | ||
| Undated | Beyond Religion | ||
| Undated | Censur - Various News Articles | ||
| Undated | Chronology | ||
| Undated | Human Rights Information Pack: Female Genital Mutilation — Amnesty International |
||
| Undated | Human Rights Information Pack: Stop Violence Against Women |
||
| Undated | Immigration and Nationality Directorate: Human Rights Specific Groups: Guidelines |
||
| Undated | Index | ||
| Undated | International Planned Parenthood Federation: Statement on Female Genital Mutilation |
||
| Undated | Kikuyu: Features of the Mungiki - The Politics of the Mungiki |
||
| Undated | News Article: Police Lethargy | ||
| Undated | News Articles: Selected Articles on the State of Religion on Africa |
||
| Undated | Net Message Board: Religious Cults And Sects — Mungiki |
||
| Undated | Report from Amnesty International: Kenya | ||
| Undated | Report: Female Genital Mutilation | ||
| Undated | Report - Metareligion: Mungiki Sect | ||
| Undated | Report - Religious Cults and Sects: Mungiki Disciples claim it is a home-grown Religion |
||
| 07 May 2000 | News Article - Sunday Nation: Secrets of Mungiki Movement |
||
| September 2000 | Report - New Internationalist: Kenya -Retro Vision: Rise of Ethnic Sect Creates Anxiety |
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| 23 October 2000 | News article - Daily Nation: What Makes Mungiki Tick |
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| 24 October 2000 | News article - The National (Nairobi): Fury At Attacks Against Women |
||
| 27 October 2000 | News article - The National (Nairobi): The Mungiki Mystique, Just Shattered To Pieces |
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| 01 November 2000 | News article: The People of the Mungiki And the Kikuyu Question |
||
| 09 December 2000 | News article - Panafrican News Agency: Mungiki Sect Members Torch Slum ViUage | ||
| 14 December 2000 | News article - CNN: Kenyan Women Lawyers Call for Law Against Female Circumcision |
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| 14 December 2000 | News article - The Associated Press: Kenyans End Genital Mutilation |
||
| 09 September 2001 | News article - Sunday National: Why Mungiki's Change? |
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| 18 November 2001 | News article - East African Standard Is Mungiki A Religious Sect or a Political Body? |
||
| 08 March 2002 | Amnesty International: Kenya Rape, The Invisible Crime |
||
| 13 March 2002 | Report — Genocide Watch News Monitor: Africa |
||
| 25 April 2002 | News Article: IRIN News Org: Kenya Rights Activists Decry Mungiki Circumcision Threat |
||
| 03 August 2002 | News article: The East African Standard: 30 Naked Mungiki Men Arrested in City Swoop |
||
| 19 December 2002 | Letter from The Medical Foundation | ||
| 19 December 2002 | Letter from Medical Foundation | ||
| 06 January 2003 | Letter from Ogunfeibo Solicitors | ||
| 06 January 2003 | Letter from Anthony Ogunfeibo & Co to A | ||
| 13 January 2003 | Letter from Varvara Zhyvets, Therapist Counsellor at Refugee Support Centre | ||
| 13 January 2003 | Report of Dr Liz Herbert, Department of Genitourinary Medicine | ||
| 13 January 2003 | Letter from Refugee Support Centre | ||
| 24 January 2003 | Letter from Department of Genitourinary Medicine, Mayday University Hospital |
||
| 11 February 2003 | BBC News: News article —Profile: Kenya's Secretive Mungiki Sect |
||
| 13 February 2003 | News article - American Anglican Council: Shadowy Mungiki is Feared by Kenyan Churches and Government |
||
| 27 August 2003 | Letter from Kirklees - Rape and Sexual Abuse Counselling Centre | ||
| 24 December 2003 | News article: The Nation (Nairobi): Stripping Women Barbaric |
||
| 27 January 2004 | Letter from the Home Office | ||
| 27 January 2004 | Letter from Home Office requesting Medical Foundation Report | ||
| 12 February 2004 | Letter from Anthony Ogunfeibo & Co | ||
| 24 April 2004 | Newspapers article - The East African Standard (Nairobi): Get Circumcised, Mungiki Sect Tells Women |
||
| 27 April 2004 | Psychiatric Report of Dr BuUer | ||
| 28 April 2004 | Letter from Kirklees Counselling Centre | ||
| 28 April 2004 | Report of Anne Wilkinson - Kirklees Rape and Sexual Abuse | ||
| 24 May2004 | Determination of D Chandler allowing the Article 3 appea | ||
| 28 June 2004 | Application for Permission to Appeal to the IAT | ||
| 14 October 2004 | IAT Decision extending time to appeal | ||
| 21 January 2005 | IAT Decision overturning Art 3 decision of Adjudicator | ||
| 07 February 2005 | Grounds of Application for permission to appeal to the Court of Appeal | ||
| 29 March 2005 | IAT grant of permission to appeal | ||
| 27 April 2005 | Psychiatric Report of Dr Buller | ||
| 31 January 2006 | Judgement of Court of Appeal in VNM | ||
| 17 November 2006 | Updated Evidence Psychiatric Report of Dr Buller |
||
| 11 January 2007 | Updated Evidence Update Statement of the Appellant |
||
| 19 January 2007 | Updated Evidence Letter from Kirklees Rape & Sexual Abuse Counselling Centre |
||
| 22 January 2007 | Updated Evidence Letter from North East Community Mental Health Team |
||
| 08 February 2007 | Expert Report of Ben Knighton | ||
| 24 October 2007 | Updated Expert Report of Ben Knighton | ||
| 3 January 2008 | The Economist: "Kenya: A very African coup" | ||
| 3 January 2008 | The Economist: "Kenya's Elections: Twilight robbery, daylight murder" | ||
| 23 January 2008 | BBC News: "Gang rape spirals in violent Kenya" | ||
| 29 January 2008 | BBC News: "Kenyans "forcibly recruited to fight" | ||
| 30th January 2008 | BBC News: "Targeted for marrying a Kikuyu" | ||
| 31 January 2008 | The Economist: "Kenya: More mayhem than mediation" | ||
| 5 February 2008 | National Post (Canada): "From Mau Mau to Mun 50 Years Later, Kenya is Still a Bloody Mess" | ||
| 7 February 2008 | The Economist: 'Kenya: Ethnic cleansing in Luoland" | ||
| 11th February 2008 | BBC News: Kenyan militia strike back" | ||
| 20 March 2008 | Letter from Switalski's Solicitors | ||
| 29 April 2008 | BBC News: Kenya banned sect members killed |
| List of Authorities |
| Circa 1998 | Decisions of the Court of Appeal: Robinson (Anthonypillai Francis) v SSHD and AIT [1998] QB 929; [ Imm AR 568 , CA (internal relocation principles: claimant entitled to refugee status if internal relocation unduly harsh or unreasonable: pages 939-940) | ||
| Circa 2001 | Decisions of IAT/AIT: Kacaj (Article 3, Standard of Proof, Non-State Actors) Albania * [2001] UKIAT 00018 (19 July 2001); [2001] INLR 354 (standard of proof common as between article 3 ECHR and/or Refugee Convention claims: paras 35-39) | ||
| Circa 2002 | Decisions of the Administrative Court: Dhima V Immigration Appeal Tribunal [2002] EWHC 80 (Admin); [ INLR 243 (applying sufficiency of protection test to article 3 ECHR cases paras 29-34) | ||
| Circa 2003 | Decisions of the Administrative Court: R (AC) V IAT [2003] EWHC Admin 389; [2003] INLR 507 (Relevance of human rights of affected persons when not directly party to proceedings) | ||
| Circa 2003 | Decisions of the Court of Appeal: Bagdanavicius et anor V SSHD [2003] EWCA Civ 1605; [2004] 1 WLR 1207; [2004] INLR 163 (comparison of factors relevant on article 3 ECHR and/or Refugee Convention claims: para 55) | ||
| Circa 2003 | Other: Blake and Husain, Immigration, Asylum, and Human Rights Oxford, 2003, pp 94-97 (comparison of factors relevant on article 3 ECHR and/or Refugee Convention claims) |
||
| Circa 2004 | Decisions of the Court of Appeal: AE and FE v SSHD [2003] EWCA Civ 1032; [2004] QB 531; [2004] INLR 475 (internal relocation principles: comparison not with conditions in the United Kingdom but with those in the area of habitual residence: paras 23 and 64-67) | ||
| 22 September 2004 | JA (Mungiki – not a religion) Kenya [2004] UKIAT 00266 | ||
| 8 December 2004 | Decisions of the Court of Appeal: P & M v SSHD [2004] EWCA Civ 1640; [2005] INLR 167 (Women in Kenya facing FGM as social group for purposes of Refugee Convention: para 37) | ||
| Circa 2006 | Decisions of the House of Lords: SSHD v Fornah; K v SSHD [2006] UKHL 46, [2006] 1 AC 412; [2006] 3 WLR 733; [2007] INLR 1 (Women facing FGM as social group for purposes of Refugee Convention: paras 26, 31, 108) | ||
| 31 January 2006 | VNM [2006] EWCA Civ 47 | ||
| 15 February 2006 | Decisions of the House of Lords: Januzi v SSHD; Hamid, Gaafar, and Mohammed v SSHD [ UKHL 5; [ INLR 118 (Internal relocation: "reasonably normal life" test elucidated: paras 20 and 47) | ||
| Circa 2007 | Decisions of the Court of Appeal: AH (Sudan) [ EWCA Civ 297 (correct approach to internal relocation following Januzi pam 33) | ||
| Circa 2007 | Decisions of the Court of Appeal: DK (Serbia) & ors v SSHD [2006] EWCA Civ 1747; [2007] 2 All ER 483 (Continuity of reconsideration process under 2002 Act: paras 20-22) | ||
| Circa 2007 | Decisions of the European Court of Human Rights: Salah Sheekh v The Netherlands (Application no. 1948/04) [2007] ECHR 36 (approach to internal relocation in article 3 ECHR cases: paras 138-144) | ||
| Circa 2007 | Decisions of IAT/AIT: FK (FGM)- risk and relocation) Kenya CG [2007] UKAlT 00041 (Kenya CG; Women in Kenya facing FGM are social group for purposes of Refugee Convention: para 63) |
||
| Circa 2007 | Decisions of IAT/AIT: IM (Sufficiency of protection) Malawi [2007] UKAIT 00071 (continuing validity of Bagdanavicius comparison of factors relevant on article 3 ECHR and/or Refugee Convention claims: paras 35-39) | ||
| 26 February 2008 | FK (Kenya) [2008] EWCA Civ 119 |
