VM (FGM-risks-Mungiki-Kikuyu/Gikuyu) Kenya CG [2008] UKAIT 00049
ASYLUM AND IMMIGRATION TRIBUNAL
Date of hearing: 9 November and 18 December 2007
Date Determination notified: 09 June 2008
Before
Senior Immigration Judge Jarvis
Mrs E Hurst JP
Between
VM
|
APPELLANT |
and
|
|
| Secretary of State for the Home Department |
RESPONDENT |
For the Appellant: Mr E Fripp of Counsel instructed by Switalski Solicitors
For the Respondent: Mr S Walker Senior Home Office Presenting Officer
Interpreter: Mr Chama Omar Matata (Swahili - English)
DETERMINATION AND REASONS
1.. It is important to determine whether a Kenyan claimant who fears FGM belongs to an ethnic group amongst which FGM is practised. If so, she may be a member of a particular social group for the purposes of the 1951 Refugee Convention
2.. Uncircumcised women in Kenya, whether Gikuyu/Kikuyu or not, are not as such, at real risk of FGM.
3.. There is evidence that the Mungiki organisation seeks to impose FGM and other forms of violence, on women and children other than those who have been initiated into their sect. In particular, such women and children include the wives, partners, children and other female family members of those men who have taken the Mungiki oath. Insufficient protection is available from the Kenyan authorities for such persons.
4.. It may be possible for a woman not wishing to undergo FGM herself, or not wishing her child to do so, to relocate to another community which does not follow the practice of FGM.
5.. In general:
(a) those who practise FGM are not reasonably likely (particularly in urban areas), to seek to inflict FGM upon women from ethnic groups or sub-groups which do not practise FGM;
(b) a woman or her child who comes from, or becomes connected by marriage, partnership or other family ties, to an ethnic group (or sub-group) where FGM is practised will be at real risk only if the evidence shows that she is reasonably likely to be required by her parents, grandparents, or by others in a position of power and influence over her, to undergo FGM or allow her child to undergo it.
6.. Internal relocation may be available in Kenya to a woman who is at real risk of forced FGM in her home area if the evidence shows: (i) she is not reasonably likely to encounter anyone in the place of relocation who would be in a position of power and influence over her and who would use that power and influence to require her to undergo FGM, or would cause her presence in the place of relocation to become known to such a person or persons (e.g. the Mungiki); and (ii) that the relocation is reasonable taking into account all the relevant factors including the religious and cultural context, the position of women within Kenyan society and the need for kinship links in the place of relocation in order to sustain such movement successfully. In particular, in the case of a woman from a rural area in Kenya, internal relocation to some other region or urban centre will not be available unless her circumstances are such that she will be able to survive economically (see Januzi v Secretary of State for the Home Department and others [2006] UKHL 5).
7.. This guidance supersedes that in FK (FGM – Risk and Relocation) Kenya CG [2007] UKAIT 00041.
- This is the reconsideration of the appeal of the Appellant, a national of Kenya, whose date of birth is given as 12 December 1974. The Appellant arrived in the UK on 31 August 2002 and claimed asylum on 10 September 2002. She appeals the decision of the Respondent made on 19 February 2004, to give directions for her removal to Kenya, following refusal to grant leave to enter or remain in the UK on asylum or human rights grounds.
- The Appellant appealed to the Asylum and Immigration Tribunal ["the Tribunal") pursuant to section 82 of the Nationality, Immigration and Asylum Act 2002, (the 2002 Act), and the Tribunal has borne in mind the grounds of appeal set out in that notice, which refer to alleged prospective breach of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol, as well as prospective breach of the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms [ECHR), as that Convention has been incorporated into United Kingdom domestic law by the Human Rights Act 1998.
- Briefly, the procedural history of the matter is this. The Appellant claims that she left Kenya accompanied by an agent, with whom she arrived in the UK and who spoke to the Immigration Officer on arrival. The agent made all the arrangements. The Appellant has never had a passport or other travel document.
- A screening form was completed on 10 September 2002; a written statement of evidence lodged, dated 17 September 2002, and the Appellant was interviewed on behalf of the Respondent on 7 November 2002. The Respondent set out his reasons for refusing to recognize the Appellant as a refugee and refusing to grant leave to enter or remain on human rights grounds in a letter dated 11 February 2004.
- The Appellant appealed to an Adjudicator, Mr David A W H Chandler. Her appeal was dismissed on asylum grounds but allowed on human rights grounds under article 3 ECHR in a determination issued on 24 May 2004. The Respondent appealed to the Immigration Appeal Tribunal [IAT) and a Vice President of the IAT gave permission to appeal on 14 October 2004.
- By a determination issued on 31 January 2005, the Tribunal allowed the Respondent's appeal, finding that there was an internal relocation alternative available to the Appellant in Kenya so that she was not at real risk of serious harm contrary to Article 3 ECHR.
- The Appellant sought permission to appeal to the Court of Appeal and permission was granted by a Vice President on 29 March 2005 on the ground that it was difficult to see any significant differences between the situation which the Court of Appeal addressed in P and M [2004] EWCA Civ 1640 and the situation in this case.
- By judgment issued on 31 January 2006, the Court of Appeal allowed the Appellant's appeal to the extent that there was an order for remittal to the Tribunal for reconsideration of the question of internal relocation, upon which question the Court of Appeal found that the Tribunal had erred [VNM v SSHD [2006] EWCA Civ 47).
- On 15 February 2007 the Tribunal decided that the previous panel had fallen into material error of law and that there should be a second stage reconsideration, in the following terms:
1. "Mr Fripp, on behalf of the appellant, conceded and we are satisfied that the adjudicator made a material error of law in his determination of the appeal. This was identified in paragraph 21 of the judgement of Wilson LJ, with whom the other members of the court agreed, in their determination of the appeal by the appellant against the determination of the tribunal in the instant case, reported as VNM v SSHD [2006] EWCA Civ 47, in which he said:
"My view, however, is that there was indeed an error of law in the adjudicator's determination of this point. I have considerable sympathy for him in that he lacked any oral assistance on behalf of the Secretary of State and had to collect the latter's points as best he could from the refusal letter. But there was a material gap in the expression of the adjudicator's reasoning: for he did not purport to explain – and there is nothing in his earlier paragraphs to demonstrate that he had considered – why, lacking access to state records, the Mungiki would be likely to discover that the appellant had returned to Kenya or, if so, to discover where in Kenya she had gone. In her statement the appellant had baldly averred that she would be so discovered. Her proposition may be valid; but its validity is not self-evident and needed to be expressly considered."
2. We are not able to undertake the further reconsideration which is required since Ms Donnelly, who represents the respondent, did not have a copy of, and therefore had not been able to consider, the expert report from Dr Ben Knighton dated 8 February 2007.
3. Mr Fripp, on behalf of the appellant, identified as possible issues to be determined at the second stage reconsideration hearing the following:
(i) whether the appellant would be at risk on return of a breach of her article 3 rights throughout Kenya;
(ii) if not, did the Robinson/Januzi test in relation to internal relocation apply to an article 3 claim;
(iii) if so, did the appellant satisfy that test;
(iv) if so could the tribunal reconsider the appellant's appeal on asylum grounds in the light of the decision of the Court of Appeal in 'P' and 'M' v SSHD [2004] 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".
- It is in this way that the matter comes before us now. At the outset of the hearing we satisfied ourselves that the Appellant and the interpreter were able to understand one another. We are also satisfied that they continued to understand one another throughout the proceedings and that the Appellant (who did not give oral evidence) was able to understand, and to otherwise participate in the proceedings appropriately, including being able to follow the expert evidence of Dr Knighton and the submissions of the representatives.
- We have before us all the documents referred to above including interview records, and the Respondent's letter of 11 February 2004, in which he sets out his reasons for refusing the Appellant's application. Also before us were the parties' bundles and authorities which are detailed at the end of this determination, as well as the parties' skeleton arguments.
- The matter first came before us on 9 November 2007 when it was adjourned part-heard, for lack of court time, to 18 December 2007 when the oral hearing was concluded. Not long after, there followed a series of extraordinary events in Kenya, as a result of which the parties were invited to lodge further submissions should they so wish as the Tribunal and the parties were concerned that the Tribunal should have before it all relevant evidence. An administrative delay in sending out directions meant that the further written submissions of the Appellant, and documentary evidence relied upon were not received by the Tribunal until late February 2008.
- The Respondent has lodged no further submissions or evidence.
- On 26 February 2008 the Court of Appeal issued its judgment in the case of FK (Kenya) v SSHD [2008] EWCA Civ 119, holding that the determination of the appeal of FK by the Tribunal could not stand.
- On 25 March 2008 we received a letter from the Appellant's solicitors, Switalski's, referring to the power sharing agreement made between the leaders of the main parties in Kenya and attaching an article from the Economist of 28 February 2008 and an article from IRIN dated 1 March 2008, to which we return below.
The Facts of the Appellant's Case
- As Mr Fripp states in his skeleton argument, the claimed factual basis of the Appellant's claim to international protection is usefully summarized by Wilson LJ at paras 3-10 of his judgment in the proceedings before the Court of Appeal in VNM:
"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."
- The Court of Appeal in VNM found that both the Adjudicator at first instance, and the Tribunal on appeal, had materially erred in law:
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
- It is helpful at this stage to set out the Tribunal's guidance in the case of FK. The Court of Appeal noted the summary guidance given by the Tribunal in FK, and that they had not been invited to decide whether the global appraisal of risk in sub-paragraphs (2) to (4) of that guidance fully reflects the accepted evidence, because FK and her daughter manifestly come within the real-risk category described at (4).
"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."
- In that light, we set out some detail about FK and the core of the findings of the Court of Appeal in FK, which are to be found in the judgment of Sedley LJ. It is important to note that the Court of Appeal did not find it possible to uphold Mr Jorro's complaint that the Tribunal's appraisal of the expert evidence was so flawed as to undermine their overall conclusion about the situation of women in Kenya. Their findings, however contentious, lay within their remit and were supported by evidence. What remained for the Court of Appeal to consider was whether, against that background, the Tribunal made a proper and adequate appraisal of the Appellant's own prospects of safe relocation with her daughter. In that regard, it was found that the Tribunal in FK had materially erred in its treatment of the testimony of Dr Knighton, when considering and assessing the risks to the Appellant upon return to Kenya, and that the Tribunal had not addressed adequately the questions of the reasonableness and safety of moving elsewhere in Kenya.
- Presumably the position is the same for the Appellant in this case and the daughter (IWM) to whom she gave birth in the UK on 5 January 2003. It must also be recalled that the Appellant has a son, (EMM) born on 19 February 2007. It was accepted by Mr Walker that the fact of the existence of the Appellant's son was to be taken into account by the Tribunal based upon the information provided as to the child's birth, within the skeleton argument.
- At paragraphs 21 -30 the Court of Appeal in FK come to the nub of the case and their reasons for finding that the determination of the Appellant's case cannot stand:
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.
- We have very much to the forefront of our minds the similarities between the facts in the case of FK and the facts in this case and we are mindful of the reasons given by the Court of Appeal for holding that the appraisal of Dr Knighton's evidence is flawed.
The Issues
- In the case of FK the question whether she is a refugee is in play, but only insofar as the issue of internal relocation is concerned, it being accepted that FK and her daughter each has a well-founded fear of being persecuted in their home area, by having FGM and/or worse violence imposed upon them, at the hands of the Mungiki, from whom the state would be unwilling or unable to protect them, as well as the question whether she and/or her daughter faces a real risk of serious harm contrary to Article 3 ECHR.
- In the appeal before us, as matters stand, only Articles 3 and 8 ECHR are clearly in play given the history which we have outlined.
- A number of points arises, as indicated in the reasons for finding an error of law, as to the scope of the reconsideration before us which were not specifically dealt with by the Tribunal when directing that there be a second stage reconsideration:
- 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
- As Mr Fripp has argued, although the Appellant did not, at the time, appeal the adjudicator's decision to refuse to recognize her as a refugee, which was based upon his finding that it had not been shown that the Appellant's fear of being persecuted was for one or more of the reasons set out in Article 1(A)(2) of the 1951 Refugee Convention, in hindsight, it appears plain that the Adjudicator erred in law in rejecting the Appellant's refugee claim on the basis of his conclusion that women did not constitute a particular social group for the purposes of the Refugee Convention.
- Mr Fripp draws attention to a number of cases to support his contention in this regard:
- FK (FGM - risk and relocation) Kenya CG [2007] UKAIT 00041 (and now, of course, the judgment of the Court of Appeal in FK on unrelated points. The Court of Appeal heard the appeal of FK in December 2007 and in a judgment of 26 February 2008 ( [2008] EWCA Civ 119 ), remitted the appeal of FK to the Tribunal to enable full and proper determination of the critical issue of the reasonableness of internal relocation.
- Mr Fripp submits that it is strongly in the interest of timely and comprehensive resolution of the Appellant's claim to international protection that the Tribunal now consider not only whether Article 3 ECHR avails the Appellant, but also whether she is a refugee. He relies upon DK (Serbia) and Ors v SSHD [2006] EWCA Civ 1747 at paras 20-22 to support his argument that there is a greater degree of flexibility within reconsideration proceedings under section 103A of the 2002 Act than was previously possible (this case falling under the transitional provisions as it does is to be treated as if it began its life under the current Tribunal regime).
- In short, Mr Fripp says that the point is 'Robinson obvious' and that as it has, in effect been so within these proceedings since the hearing before the Court of Appeal on 19 December 2005, it is right that it be dealt with now, rather than the Appellant having to make yet further applications.
- Although the matter had been listed as an intended country guidance case, there was no skeleton argument lodged by the Respondent at or before the hearing on 9 November 2007, so that when the matter was adjourned part-heard, for lack of time, after receipt of expert evidence from Dr Benjamin Paul Knighton (see below), it was directed that the Respondent file and serve a skeleton argument, addressing all the issues, including the questions whether the concept of internal relocation and its associated learning applies when considering a deciding a case under Article 3 ECHR; and as to whether the Appellant could now revive her claim to recognition as a refugee, in the light of jurisprudence that has clarified the meaning of 'particular social group' when considering women who fear FGM, the Appellant relying upon the submission that it is now a "Robinson obvious" point.
- Mr Walker, in his skeleton argument of 14 December 2007 makes clear that the Respondent relies upon the case of 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.
- The Respondent has lodged no further skeleton argument or written submissions in these proceedings.
- The skeleton argument of 14 December 2007 does not address the issues relating to Article 3 ECHR or to the proposed revival of the claim to recognition as a refugee. We therefore proceeded on the basis that the refugee appeal was to be included as potentially live before us and requested Mr Walker to address us upon those points at the reconvened hearing on 14 December 2007, but he had no real point to make, whether for or against revival of the refugee claim or in relation to the existence or otherwise of an 'internal relocation test' within article 3 ECHR.
- We turn then, to consider whether the refugee claim is to be treated as in play. A key point, when reviewing the history of this case, is that the adjudicator who decided the appeal, Mr David Chandler, did not have the benefit of hearing from a presenting officer, and thus, as the Court of Appeal has stated, the hearing lacked focus.
- The adjudicator reaches his findings on the question whether the Appellant is a refugee at paragraph 33 of his determination, where we see that Counsel for the Appellant relied upon the case of Shah and Islam [1999] Imm AR 283 to support the Appellant's claim that she is a refugee by reason of her membership of the particular social group of women in Kenya. The adjudicator did not agree because, he states, "…the overall picture does not show that women in Kenya are unprotected by the state to the same extent as in Pakistan…The government appears to be alive to gender concerns."
- Counsel for the Appellant then apparently agreed with the adjudicator that the Appellant could not claim to be a member of the social group "women facing FGM" as this would be outside the definition provided in Shah and Islam."
- Mr Fripp, who has more recently come to represent the Appellant, had to accept that there was no challenge on behalf of the Appellant to the refugee aspect of the adjudicator's decision. It must be said that this is somewhat surprising given the adjudicator's dubious reasoning and findings. However, that cannot be regarded as the fault of the Appellant who must, perforce, rely upon her lawyers. Mr Fripp submits that the issue has been 'live' since this matter was itself before the Court of Appeal, although it would not appear that the Court of Appeal was specifically requested to consider the arguments now raised, as Mr Fripp conceded before the Court of Appeal that because the Appellant did not cross appeal the decision of the adjudicator, no question of legal error on the part of the tribunal in that regard could arise. Mr Walker may perhaps be regarded as resting his submission on this point.
- Mr Fripp refers us to the judgment of the Court of Appeal in P and M v SSHD [2004] EWCA Civ 1640. We note that neither the adjudicator nor the parties had the benefit of this guidance as it was not issued until 8 December 2004, whereas the adjudicator heard the appeal on 10 May 2004. However, the Court takes the view that 'women in Kenya' are capable of forming a particular social group for the purpose of Article 1A2 of the 1952 Refugee Convention:
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.
- Mr Fripp further relies upon subsequent express endorsement of that judgment in speeches in the House of Lords in SSHD v Fornah and K v SSHD [2006] UKHL 46, [2007] 1 AC 412, [2006] 3 WLR 733. Per Lord Bingham of Cornhill at [26] and [31], expressing views concurred in by other members of their Lordships' House:
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.
- Per Baroness Hale of Richmond at 108:
"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."
- We were then referred to FK (FGM) - risk and relocation) Kenya 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...".
- We would agree with Mr Fripp that it is strongly in the interest of timely and comprehensive resolution of the Appellant's protection claim that the AIT be able to consider not only whether the Appellant's removal would breach article 3 ECHR but also whether the Appellant, given the clarification of the law in the decisions referred to above, is a refugee.
- Procedurally, the situation appears to be as follows. The Appellant's appeal to the Court of Appeal from the IAT led to that Court's remittal to AIT by application of section 103B (4) NIAA 2002 (as amended): Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 (Commencement No 5 and Transitional Provisions) Order 2005. It might appear that the present proceedings may be rendered more comprehensive only by the Appellant's bringing of an out-of-time application for reconsideration of the Adjudicator's decision under section 103A NIAA 2002, leading to grant of an Order for Reconsideration and formal inclusion of the Appellant's claim to Refugee Convention status within the scope of the present reconsideration. Against that, the judgment of Latham LJ giving the judgment of the Court of Appeal in DK (Serbia) & ors v SSHD [2006] EWCA Civ 1747 [20]-[22] suggests that in reconsideration proceedings under section 103A NIAA 2002 a more flexible approach than previously possible might be required:
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.
- Mr Fripp has argued, and we would agree with him, that the ability to raise "an obvious or manifest point of Convention jurisprudence" presumably applies to 'protection claims' whether under the Refugee Convention or under article 3 ECHR: there is no principled basis at all for any other conclusion. Once this is accepted, and given the unitary nature of the reconsideration process, there is no reason why, faced with a relatively unusual situation such as the present one, a claimant should not be allowed to revive consideration of the Refugee Convention aspect of the protection claim.
- On this basis, though with some reticence, Mr Fripp suggests that the Tribunal is able to raise the question of Convention reason under the Refugee Convention in present proceedings. Thereafter, says Mr Fripp, resolution of that aspect of the appeal would turn on consideration of internal relocation issues, the Adjudicator's earlier consideration whether applied to article 3 ECHR or to the Refugee Convention being erroneous for the reasons given by the Court of Appeal.
- We find ourselves in agreement with Mr Fripp as to the way forward in this regard, for the reasons that he has advanced. Like him we also express some reticence, but we bear in mind all of the jurisprudence and the other relevant factors to which he has so ably referred us, not least of which are the 'unitary nature' of the reconsideration, the undesirability of yet further applications and proceedings in this matter, and, extremely importantly, that the decision of the adjudicator was wrong in law. We accept that the latter is a 'Robinson obvious' point and bear in mind that any such point can only be 'Robinson obvious' in a situation where the law is correctly understood, argued, and applied by those responsible for so doing. Whilst the argument should, of course, have been raised earlier by her lawyers, upon whom the Appellant must rely, in particular before the Court of Appeal, she is not to be treated as fixed with their failings so that she is left without recourse. It is understood that the present representatives were only involved relatively recently so that in the circumstances it may be regarded as understandable that this was not done.
- We therefore proceed on the basis contended for by Mr Fripp, and applying the guidance of the House of Lords, and of Lord Bingham in particular, as summarized above, in Fornah and K; namely, on the basis that the refugee appeal is live before us.
- In those circumstances, we re-visit the question of the issues that are now before us in the light of the current legal framework as it applies to this case, albeit that the appeal began under a previous regime.
- In the event that we are wrong in treating the refugee appeal as live before us, then our consideration and finding in this determination will serve to deal obiter with the Refugee Convention issue, and, as Mr Fripp submits, the Appellant will in due course have to consider (taking into account the outcome of the reconsideration of article 3 ECHR issues) whether to enter into correspondence with the SSHD seeking acknowledgment of representations as amounting to a fresh claim to protection as a refugee, under para 353 Immigration Rules HC 395.
- Apart from the refugee appeal, article 3 ECHR is in play before us, on the basis that the Appellant has already shown that she is at real risk of serious harm contrary to Article 3 in her home area, by reason of her fear of forced FGM, whether in respect of herself only, or herself and her daughter.
- In his skeleton argument, Mr Fripp has also submitted that following the Practice Direction of 9 October 2006, consideration must be given to the question whether the Appellant is entitled to humanitarian protection, although we cannot see that he has pursued this argument in his oral submissions. However, given the history of the matter and what we have said relating to the unitary nature of the AIT, its proceedings, and the transitional provisions, it seems to us that in the light of the Practice Direction, it would follow that humanitarian protection would fall to be considered in the event that we were to find that the Appellant is not a refugee, and that procedurally, that aspect would fall to be considered before moving to consider the article 3 aspect.
- The provisions of SI [2006] No.2525 "The Refugee or Person in Need of International Protection (Qualification) Regulations 2006" now bring into United Kingdom domestic law the Council of the European Union Directive 2004/83/EC of 29 April 2004 on 'minimum standards' for the qualification and status of third country nationals or stateless persons as refugees or as person who otherwise need protection and the content of the protection granted, normally referred to in the United Kingdom as the Qualification Directive. Commensurate changes were made in the Immigration Rules by means of Statement of Changes in the Immigration Rules also taking effect on 9 October 2006.
- The determination we have made has approached the issues in this appeal from the perspective of the 2006 Regulations and in particular has applied the definitions contained there, in deciding whether the Appellant is a refugee under the 1951 Geneva Convention. We have also applied the amended Immigration Rules. These have permitted us to consider whether the Appellant is in need of Humanitarian Protection as being at risk of serious harm, as defined in paragraph 339C of the Rules. Finally, we have gone on to consider whether the Appellant is at risk of a violation of her human rights under the provisions of the ECHR.
- The burden of proof is upon the Appellant. The standard of proof has been defined as a 'reasonable degree of likelihood', sometimes expressed as 'a reasonable chance' or a 'serious possibility'. The question is answered by looking at the evidence in the round and assessed at the time of hearing the appeal. We regard the same standard as applying in essence in human rights appeals although sometimes expressed as 'substantial grounds for believing'. Although the 2006 Regulations make no express reference to the standard of proof in asylum appeals, there is no suggestion that the Regulations or the Directions were intended to introduce a change in either the burden or standard of proof. The amended Rules, however, deal expressly with the standard of proof in deciding whether the Appellant is in need of Humanitarian Protection.
- Paragraph 339C of the Immigration Rules defines a person eligible for Humanitarian Protection, as a person who does not qualify as a refugee but in respect of whom substantial grounds have been shown for believing that the person concerned, if returned, would face a real risk of suffering serious harm. It seems to us that this replicates the standard of proof familiar in the former jurisprudence and, by implication, applies the same standard in asylum cases.
- Accordingly, where below we refer to 'risk' or 'real risk' this is to be understood as an abbreviated way of identifying respectively:
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.
- In reaching our conclusions as to whether the Appellant will be at real risk on return, we have been further mindful that the amended Immigration Rules (Cm 6198) contain among other provisions, paragraph 339K which deals with the approach to past persecution and serious harm, and paragraph 339O headed "Internal Relocation".
- It follows that the questions to be answered here are:
- 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.
- Before deciding any of these issues, we return to the evidence before us, and consider next the expert evidence of Dr Knighton which is relevant to the questions that we have identified, as well as the other background evidence to which the parties have drawn our attention.
The Expert Evidence of Dr Knighton
- As was noted by the Court of Appeal in FK, Dr Knighton's credentials are impressive. He is a fellow of the Royal Anthropological Institute and gives this account of his qualifications:
"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.
- Since then, we note (page C1-C2 of the Appellant's bundle, first report of Dr Knighton in this matter, 8 February 2007) that he has made a further visit to Kenya in November-December 2006 during which time he undertook field work in and around Karen, Ngong, and when in Central Province, stayed at the vicarage at Wangige, whilst conducting interviews.
- He states at paragraph 2 that he has read the relevant documentary evidence in this matter as there listed, and that the Appellant is not known to him, nor is any member of her family, so that he is able to be as objective as possible about the case, which would be his academic tendency in any event.
- Dr Knighton has prepared reports dated 8 February 2007 and 24 October 2007 (Appellant's bundle, section C, pp C1-C61 and pp C62-C108). His second report is able to include responses to findings and conclusions reached by the Tribunal in FK (which determination was, it will be recalled, remitted by the Court of Appeal on 26 February 2008).
- Before hearing oral evidence from Dr Knighton, we requested that the Appellant's daughter leave the hearing room, accompanied by an appropriate carer, our having taken the view that it was not in her best interests to remain to hear the rest of the proceedings or to witness any response her mother may have during the course of the hearing.
- In summary, as stated in his two reports, Dr Knighton's opinion is that given the particular history, characteristics and circumstances of this of the Appellant, a lone Gikuyu woman who has a young daughter (a child born of rape) and a young son, who has defied the Mungiki, who has no home or known family members to turn to, and who is unlikely to be able to seek protection with a new husband, she cannot return in safety to Kenya.
- Given the history of the matter, we here set out a detailed summary, the oral evidence of Dr Knighton, who adopted the content of his two reports, bearing in mind the width and complexity of the issues and that we are 'looking at a moving target'.
- Dr Knighton explained that the Tribunal has used "Kikuyu" whereas the orthography that he uses is "Gikuyu". Kikuyu is from the Imperial age and is an Anglicisation. The orthography is Gikuyu, also written with vowel marks to help with the pronunciation.
- "Mbara" means "Sub-clan"- most easily represented by a portion of land marked out by a clan member from forestland and is very important for the determination of land rights. It is very difficult to split family title without agreement of all the elders of a sub-clan – it is important socially and economically and the sub-clan has unity and follows the same customs.
- The level below, that is between the Gikuyu people and Mbara. The strata used to be age and class but that is now vestigial. Agikuyu is the tribe and is hardly ever a political people because it is so large but it is limited by language and united in particular by the next level down, the clans, which are matrilineal and known as "the nine clans" and they still figure in feminine names and the sub-clan is part of the clan and a person remains in a clan until they marry out. The "full nine" is the correct number which of course means ten. Mbara is the unit below the clan. Districts reflect this in the Nyeri, Kirinyagu, Murangu, and Kiambu – where they were expanding when the British arrived. Kiambu spread west and are widely dispersed. They spread wide and there are other areas of Kikuyu across the country often where British settlers are.
- The terms FGC and FGM are not used locally in Kenya, although they are referred to on occasion in the English press. The used term is female circumcision and circumcision. "Cut" is less pejorative and value laden as a term and is a word used in Kenya rather than mutilation. A great many people do not see the cutting as a form of mutilation, rather it is seen as an act which is enhancing of a woman's standing and seniority.
- The normal strategy for someone in the position of the Appellant, who was moving around inside Kenya, would be, if she were able to identify a member of her family or her husband's family, to rely on them, if possible. The usual strategy is to move around with your kith and kin – this is famously how Nairobi is made up and reinforced by the British – you will be known/recognised in Nairobi as being of your tribe.
- For many reasons, people do live elsewhere than with their tribe. For example, land appropriation, to do business, to escape problems. However, the Kikuyu are notorious for colonising Kenya in terms of business and land appropriation. Business is done by who you know and who you can trust – very much to the forefront today is resentment against the Kikuyu because of their advantages in the past and they do tend to do better. For them, that the President may be removed may mean it is very difficult to buy land even though much of the land is still in common ownership in Kenya and most are pastoralists and anyone coming as a new person comes at the mercy of the pastoralists who practise very high levels of FGC except the Turkana who are in the north west rift in a very difficult area of Kenya.
- As to whether successful relocation is connected to or dependent upon the sex of the individual, Dr Knighton stated that normally the son or first son is required to go out and open a new "Kibeka" – a tract of land, and once he has done this, he then attracts women around him. Kikuyu women can be very enterprising and are to the fore in local markets and can be big as cereal dealers.
- At page 40, paragraph17, of his report, the possibilities of internal relocation are referred to, and the question was raised with him as to how "the city" as a place of relocation applies to this Appellant. Dr Knighton noted that the Appellant has had a secondary education and shown early proclivity to trade, but that this depends on being in the forefront of the public eye, meeting people and knowing people. In the slums there will be a Mungiki presence and a Gikuyu presence. The more you trade the more you become known, and when there are Gikuyu and where there are Gikuyu there are Mungiki or there were recently, or will be in future, Mungiki. The Mungiki are, said Dr Knighton, luminous in the transport area, and are very often "Mutatu Touts" – a person who shoos people into taxis and takes the money from them.
- In terms of transport, including in the country areas, the Mutatu are, said Dr Knighton, very, very important. There are large buses to do long journeys and of course lorries. These buses and lorries are slow. The railway is slow and is not a real passenger business and in fact is decreasing in the number of passengers it carries. Most people rely on Mutatu. The Gikuyu are dominant in the Mutatu in ownership and in running it. In 2006 there was a newspaper report which says that the Mungiki have returned to the whole country via the Mutatu industry.
- As to what forms of Mungiki are on the transport, Dr Knighton observed that David Anderson in Oxford has written to say that the Mungiki are an urban protection racket over controlling the Mutatu, but they are also very much present in rural areas where people have been oathed, including because of land clashes. The Mungiki are, in the main, said Dr Knighton, a core of unemployed, semi-dispossessed Gikuyu youth with distinctly dim prospects of becoming honoured men. This was the bedrock of the Mau Mau and the children of the Mau Mau are the Mungiki. It is not just a socio-political organization, it is also religious. He referred to his first report – religion is used through the secret oath of secrecy and loyalty and in this it is close to the Mau Mau. There is reliance on the wrath of God and there are similar methods and initiation to the Mau Mau. Backsliders from the Mungiki are murdered in Nairobi and it is very difficult for researchers to penetrate the organisation. The oath is very strong and secretive: "May this oath kill me if I disclose the secrets of the oath". Other Mungiki will lean on potential backsliders and that is why the government finds it so difficult to deal with them – there had been eight years of emergency powers under British rule to deal with the Mau Mau. Now, the government is speaking of use of emergency powers again and it has spoken of the Mungiki as a "national crisis".
- Referred to his written evidence at C41, regarding internal relocation, Dr Knighton was asked to comment on someone in the Appellant's position, seeking to escape a risk of contact with the Mungiki, in particular as to what ability she would have to develop a new tribe, new Mbara, family.
- Dr Knighton was clear that the only tried and tested route is to marry out of the tribe. This is very difficult when there are children because children belong to the first husband and the system is patriarchal in that the wife goes to live in the husband's house. But even in Meru, to the west, women who have married into a cutting tribe or family, find that even their husband cannot guarantee bodily integrity. Gikuyu women also have a reputation for leaving a marriage with all the household goods so there is a reluctance to marry such women (who have left a husband) even if they will engage in sexual relations. Further, if you marry a Gikuyu you do not know if he will turn into a Mungiki.
- Dr Knighton was referred to the judgment of the Court of Appeal in VNM (D45, paragraph 25) (Mr Fripp read to the words to the end of paragraph 25). He was then asked how practicable it is, for this appellant, seeking to avoid her own tribe, to maintain a false account of her identity and history or to say nothing about her background. Dr Knighton explained that society in Kenya is not as private as in the United Kingdom – there is no such proverb as "home is a castle". People like to associate communally and go to church and meet. People are concerned with where you are from and who your father is. What is your sub-clan will be the second question after what is your name. Even in an urban area you do not belong to Nairobi, you belong to the land outside Nairobi where you have come from and where you want to be buried. Most people want to be buried in their homeland. This is a normal part of daily intercourse to pry, to ask questions – you cannot come from nowhere and you will be pinpointed and connections will be made. That is so even here in the UK. In her home area and wandering across Kenya are the platoons of Mungiki and they will know of her as a one time leader's wife. Wangiku is a thoroughfare. The same applies to Kiambu and other areas.
- As to how much interest a person would take, given that this story is in the past, Dr Kinghton's evidence was that it is an event in Mungiki history, and a person who had taken the Mungiki oath would be duty bound to report the Appellant's presence. Also it is good gossip and would come out unless an individual took pity on her.
- At the time when Dr Knighton gave his evidence, we did not yet have the benefit of the judgment of the Court of Appeal in the case of FK in which Dr Knighton's evidence upon very similar issues was considered. (See tab L of the appellant's bundle of authorities and see page 17 of FK at paragraph 66). Asked to comment on the Tribunal's view of his evidence in that case, Dr Knighton stated that it is a rather mangled understanding of what he was saying. It is true a substantial number of Gikuyu do not cut their daughters, but there is no division in district/territorial terms of this, neighbours would not even know because the cutting is done secretly now. Even government employed medics will perform it. So there are Mbara who will perform it even though Christian and some who, with influence of the church, will not. A mother may be against and a grandmother for it and if she is father's mother then she (grandmother) may win. There is a great deal of diversity and the finding by the Tribunal at para 66 that there are many areas within the Gikuyu territory in which the inhabitants do not seek to practise FGM, does not hold. It is not static either, because Mungiki bring back FGC and the rise of secret communal ceremonies have been known. There used to be public communal ceremonies of cutting and the British stopped them.
- Dr Knighton was taken to paragraph 67 of the determination of the Tribunal in FK where the Tribunal expresses disagreement with the opinion of Dr Knighton that church communities in Kenya would not provide protection to the Appellant. Asked to comment, he explained that he was taken to Africa by the church and worked for the church for nine years. Importantly, the church does not come to replace culture but to establish itself as the church and has hardly even tried to change the socio-cultural base and has even tried to reinforce the land based, self sufficiency goal and the Kenyatta, Kiabi line of self- sufficiency holds. The Kenyan Church does not have the long Augustinian tradition of the Western Church. Rather, it is the extended family of the Kenyan nation as a whole and there is no social service and there are no abbeys or church-based organisations to run institutions to provide shelter to persons, whether ladies or children. After the police round up people or round up children they will be returned home. It is, in his personal experience, very difficult to run church-based organisation against this tradition. The church does not accommodate people. A domestic servant or a spouse is the only woman who will be taken in, plus divorced women do return to their families. There is now murderous pressure on land and self-sufficiency is increasingly difficult.
- Dr Knighton was of the opinion that domestic service is an 'escape route' for some women, but one would be considering the 'ex-patriot' service because of the Appellant's age and her children. Usually no cash is paid and the benefits are all in kind. It is usually a phase in life for poor young girls from poor families who then go on to marry. The usual form of protection is a husband, but a Gikuyu woman with a son is unlikely to find a husband because you do not bring another man's son into your home and in addition there are also inheritance problems.
- Ex-patriots usually have staff who are of Gikuyu origin, so even in the ex-patriot community there is a strong Gikuyu presence. Also one would need a recommendation from an ex-patriot or to go through an agency, or one would need to be the relative of an existing employee.
- Dr Knighton stated, referring to his supplementary report, that the year 2007 has brought the most intense violence yet from the Mungiki ('Muingiki' as he refers to them) and the most violent and unrestrained response from the police, following a decision by the inner cabinet of President Kibaki to confront the Mungiki with no holds barred. This destabilized areas where Mungiki activity has been visible to the authorities. It follows clashes between Mungiki and police in Kiambu district in March and April with police alleging 112 deaths in June around highly populated Gikuyu areas, including 27 killed by the Mungiki, of whom 11 were police officers (Daily Nation 3 July 2007).
- The Archbishop of the Anglican Church of Kenya, the Most Reverend Benjamin Nzimbi said that "…the peace that had in the past been in the country was being replaced with fear. These killings are scaring and we ask the Government to intervene now and find a lasting solutions (sic) to these senseless criminal attacks" (Daily Nation 9 July 2007). Dr Knighton continued that scores of bodies have been found in Ngong forest, apparently dumped there by anti-Mungiki police squads, having been killed at close quarters (Mukinda, Fred "Killings Linked to the War Against the Mungiki sect", Daily Nation 23 October 2007). There remains plenty of lethal activity in Kiambu (which is a town, district centre and district but not a village as stated by the Tribunal in FK). Reference is made to the shooting dead by police of two suspected Mungiki said to have been engaged in extortion.
- Young women who discover that their partners are or may be Mungiki are obliged to remain with them or risk ill treatment including gang rape and other forms of torture and serious harm should they try to leave the home and they dare not divulge that a partner is or may be Mungiki (Daily Nation, 27 September 2007).
- Nobel Laureate Wangari Maathai has submitted that in the first nine months of 2007 the police had shot dead 476 suspects, at least 50 in circumstances indicating summary execution [Daily Nation 9 August 2007).
- Dr Knighton noted that the Tribunal in FK had stated that he had not given any specific figures for membership of the Mungiki. He points out that there is inevitably no reliable census of membership of a secret society, but that he did give a range of reported numbers that newspapers have seen fit to print and country reports to quote. He draws attention in his supplemental report to more recent figures, mostly going back to Mungiki leaders, who do know best, if believed, as it is they who keep registers of members:
"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)."
- Dr Knighton points out that when giving evidence in FK, he gave 500,000 as a very likely bottom- of -the –range estimate of those who have been oathed. Even Archbishop Beecher considered that 95 percent of his own Anglican Agikiyu had been oathed by the Mau Mau.
- Although the Mungiki is abhorrent to the much larger middle class of today, it is perfectly possible that many more have been oathed, if insincerely, than 500,000. He points out that at para 34 of its determination in FK, the Tribunal states that half a million Agikuyu are said to amount to '1.47 per cent' of the Agikikyu. However, since it is accepted that there are at least 6 million Agikuyu of all ages, this indicates that there are at least 8.5 per cent of the post adolescent population who are Mungiki, or one in 12. Yet, at para 71 of the determination in FK, the Tribunal does not take note of Dr Knighton's evidence as to the minimum figure of 500,000, and then goes on to hold that this would in any event represent but a very small percentage indeed of the Gikuyu population as a whole. Dr Knighton adds, referring to his supplemental report (C66) that the percentage of about 1 in 12 or 1 in 13 is a significant number, in particular when it is considered that children are not registered.
- Dr Knighton states that whilst JA (Mungiki-Not a Religion) Kenya [2004] UKIAT 00266 found the Mungiki to be 'small', that does not alter the facts on the ground. Further the news in 2007 clearly and widely portrays Mungiki to be one of the biggest challenges to the Kenyan state and to peace for its citizens. Whatever the number of active adherents at any one point in time, its impact is huge.
- As to what is stated in the Appellant's submissions in FK regarding FGM, (FGC as Dr Knighton prefers), (para 50) he reiterates that only those women well past child bearing age would be spared FGC if that were to be forced. As to para 81 of FK, of course the Mungiki target small numbers if they want to force actual operations of FGC.
- On the matter of figures and statistics, Dr Knighton noted that the Tribunal in FK had held that 'many millions' of women and girls have not been subject to FGC, but even on KHDS figures, only two million at the most, more likely 1.5 including infants and young children, have not experienced FGC. Assuming that adolescent girls or 'young women', constitute a quarter of the female population, then we are talking of 850,000 young females, of whom 561,000 might not have undergone FGC, certainly not 'many millions'. The Kenya Demographic and Health Survey (KDHS) statistics cannot be relied upon as hard facts. He had dealt with them meticulously before the Tribunal, explaining the necessary caveats, in particular under reporting, for numerous reasons. The outcome of this scrutiny is that 34 percent is a figure on the extreme bottom range of the proportion of Agikuyu over 15 years of age who have experienced FGC, whilst the top end could be around 50 percent. Of course, all statistics in the region, except where customs are near universal, should be taken with a great deal of caution. For example, a Zambain research student reported a respondent stating that he had a black and white television when she knew full well that he had no television at all. The desire to appear acceptable to modern trends can be very deceptive. It is still possible that any marked changes in this very private area of life are more due to under reporting than to a shift in practice. [We recall the concern of the late President Jomo Kenyatta that an end to FGM would signal the end of the Gikuyu tribe (A51]).
- With regard to the wider issue of risk to women in Kenya, at para 42 of the determination in FK, it is stated that the Tribunal were not addressed on that wider issue, but, Dr Knighton pointed out, he had dealt with the matter at length at paras 5-9 of his first report (C6-C17, and also paras 10-12, C17-C22), see post].
- As to the Tribunal's view in FK, at para 83, that the Appellant could go to live in another tribal area, such as that of the Luo and Luyia who do not practise FGM, in particular Musoma, Dr Knighton referred to an earlier report of his in another matter, in which he included evidence of a Gikukyu woman being at real risk of forced FGM in a strongly Luyia area.
- Regarding the report of a German agency (this is a reference to the German Development Organization, which is quoted by Miss Sigley Presenting Officer, in her submissions to the Tribunal in JA (above). This organization's report refers to a: "'successful' education programme aimed at eradicating FGM in Kenya, which involves an alternative rite of passage in which girls were taken through all the formalities attending FGM but not the actual cut. Some five thousand girls had participated. Those who had been circumcised were now condemning FGM in impressive numbers".
- Dr Knighton points out that reliance upon this report ignores his evidence from a Gikuyu woman campaigner against FGM who was committed to promoting the alternative, that this programme had, if anything, a negative effect in deterring young girls who were later going in for the 'real thing'. In his judgment, her evidence has the ring of objectivity and not self-interest.
- Dr Knighton deals with what he refers to as the 'NGO industry' at para 10 of his first report (C17-C20). The explicit aims of an NGO project tell little if what it actually accomplishes in the long term…when we see an NGO fulminating against FGM, what we see mostly is an expression of the West's abhorrence of a selected African custom (though its origins are Semitic) rather than any fundamental change in the custom and its practitioners. Kenyan NGOs national presence can be interpreted as office premises in a number of urban centres with a limited number of office workers. The shift toward advocacy means that an NGO may have no hands on project, and refuge accommodation is extremely rare, for it would be inundated by the poorly housed. Although there is mention of the Centre for Rehabilitation of Abused Women (CREAW), which provides legal aid to abused women, there is no mention that the safe house for 15 women ever found the funding that it needed (IRIN 25 October 2005). The V-Day Safe House for Girls, started in 2002 in Narok, a semi-arid area, is said to operate the first safe house in Kenya for young Maasai girls (Daily Nation, 8 December 2004). World Vision is said to have a rescue centre for Sabawot girls on Mount Elgon (Daily Nation 8.12 2004). Whether the personal funding continues for the planned 40 bed safe house after 2004 is not at all clear.
- The UN Family Planning Association of Uganda claims to produce and disseminate information, education and communication focused on youth sexual and reproductive health, but not to implement its teaching. Maendeleo Ya Wanawake (MYWO 2000) claims to have 600,000 groups and two million members paying an annual subscription of KSh 20 each, but it does not answer all enquiries and has not finished constructing its website which was last updated in June 2000. Its Advocacy Strategy for the Elimination of FGM has been funded by the Ford FoundatIon, yet it offers nothing for young women who choose to leave home to avoid it. The Chair is a KANU MP. Although MYWO has been a means of aligning women with a political party, it has not enjoyed the mass support which KANU lost in the 1960s.
- NGO's will apply for what funding is available, but that any NGO will achieve its stated aims can never be presumed. There are said to be 80,000 development projects in Africa spending $2-3 billion pa (Cleobury and Morgan 2004) with a general lack of accountability and indulging in 'mission creep', following funding availability rather than their own expertise. If 7 NGOs followed up by Cleobury and Morgan, six had vanished. In de Waal's words [1997:143): "…there is in fact a tendency towards systemic duplicity. The language that relief agencies use to their peers, donors, and constituents, is a systemic distortion of the realities of their work on the ground…This is the language of pragmatic deals, compromises and turning a blind eye."
- Dr Knighton was reminded that he has given evidence about the level and mode of transportation rates by the Gikuyu. Asked to comment on the conclusion by the Tribunal in FK that most activities are in Nairobi and the absence of arrests shows a lack of activity by the Mungiki, he said that the reports are in Nairobi papers and Nairobi-based, and the reports come into Nairobi. This stretch of Kiambu is very much the breeding ground of the Mungiki, incidents are recorded in the area although less than the slums of Nairobi. Mungiki has been particularly strong in these areas. There are many more areas of societies of Mungiki wielding power over the masses in Kiambu. Groups of men go out at night after dark and stop anyone going out and they insist that they escort people home and insist on payment of 50 shillings. The Mungiki are willing to attack the police and they disrespect the police.
- Dr Knighton said that he has been advised by a Christian pastor with integrity that he should not risk interviewing a Mungiki. There has been 'the mother of all crackdowns' on the Mungiki and the Mungiki say they will 'fight fire with fire' so this finding, (by the Tribunal in FK) that because there are no reports nothing is happening, is wrong. Now we have heard that police have shot 500 in the back of the head. The Kenyans do not think that the Mungiki have gone away. Numbers of Members of Parliament are implicated with the Mungiki and Professor Anderson supports him on this. An election is due and he was going in two weeks to Kenya. Everyone fears that the Mungiki are the youth wingers, the warriors to support the political parties. It is fair to say that the president has tried to deal with them because most voters do not like the Mungiki and so a shoot to kill policy has been used against this politico-religious movement of great persistence over the years.
- Dr Knighton was asked to comment on para 82 of FK. (We here insert para 82 for completeness):
"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."
- In Dr Knighton's opinion, it is very generalised and he was not sure where the Tribunal took their figures from. He referred to his supplemental report. 850,000 eligible Gikuyu women have not been circumcised. Those against the Mungiki and FGC may be in the Pentecostal and other Churches. They are against the Mungiki who are a minority of the Gikuyu, but are a virulent minority that penetrates all activities save perhaps in the Protestant Churches. He stated that he did not want to sensationalise, but that the Mungiki have assumed targets against women. The main form of disciplining women is at the level of the home and the sub-clan and it is mother, grandmother and aunt who will persuade and carry power.
- Paragraph 83 (of FK) – refers to the Luo. The Luo do not circumcise. But because it is said that FGC prevents HIV, which has been backed by the USA and the Bill Gates Foundation, it is now being taken up.
- Asked could the Appellant go to a Luo area to be safe, as the Tribunal in FK had suggested, Dr Knighton replied that when the Tribunal say 'Musoomu' in the determination in FK they mean Kusumo which is the third largest town in Kenya. "Musoma" is an "educated person". What they were doing here, said Dr Knighton, was to look, in his presence, for an area to which the Appellant might relocate. The Luo are a very self confident people who hope to have the next president. Their land is very, very overcrowded and unhealthy and there is no land available. Also they are at odds with the Gikuyu so there would be a problem. The election will be between the Luo young blood and the Gikuyu. There is a great deal of animosity between the Luo and the Gikuyu and very little trust. The Luo had the wrong end of the stick after the end of independence and the Gikuyu the right end. There is fighting between the Luo and the Gikuyu.
- In cross examination, Mr Walker noted that Dr Knighton had said that a colleague had an interpretation of the Mungiki as a quasi religious group. Dr Knighton agreed that Anderson wrote to give a secular interpretation of them as an urban group based on protection rackets. As to whether the Mungiki had changed since its conception, he said that it was founded in 1989 on a religious basis on the other side of the Rift Valley when the Gikuyu were pushed out by the Kalenjin. It is still a politico-religious movement which does not depend on any particular leader. Of course it changes and it has confrontation with and collaboration with agents of the state – there are membership drives. People are obliged to go underground.
- The ethos is not a 'mafia' ethos, it is seen as a form of traditionalism and Kenyans see a religious side, not a Mafia. It is not so simple as traditionalists wanting to go back to their forefathers, it is the answer to marginalisation in the contemporary world. As to how that sits with protectionism and vigilantism, Dr Knighton said that it is a form of discipline and of power and an alternative government. It is taking power back and promoting the unity of the people – the oath is one of unity, like the Mau Mau, and so the old chiefs and loyalists and collaborators will be marginalised.
- Mr Walker pointed out that before the Immigration Judge at first hearing (page 80 of the February 2007 bundle) there is an article by Grace N. Wamue. She describes the Mungiki as mostly low earners, as Jua Kali – running small businesses in the open air. Dr Knighton agreed that many of the Mungiki are poorly educated. Many of them are against Western education whereas most Kenyans are incredibly for education. Although they have money and power over land and people from their activities of extortion and theft such as 'selling title' to land that they do not own.
- Dr Knighton agreed that to go to school until 19 years of age equals being well educated. The Appellant's husband was an estate agent in Nairobi. As to whether that would be a "middle class" occupation, Dr Knighton did not know. It was unclear whether he was involved in the unlawful selling of land or had been targeted for membership of the Mungiki because of his work. He was relatively young, living at home in his family area and had not spread his wings. Dr Knighton does not confine the Mungiki merely to the Jua Kali. Many are in transport too, or living on a little patch of land.
- The Appellant's husband lived in Nairobi, just thirteen miles from his home. Dr Knighton would not class this as well off, although they might have become so. The Mungiki also inhabit government offices. The husband very quickly became the Chair of Wangiku branch in the location so that would go toward becoming middle class. A youth in Kenya equals at least up to 35 years and it will attract a discontented older person as well as a discontented youth.
- The appellant is believed to be Roman Catholic. The Roman Catholic Church in Kenya has never taken a public stance against FGC and saw it as a means of benefiting at the distress of the Protestants. That does not stop some individuals from standing out against it.
- Dr Knighton understood that the Appellant has not undergone FGC. One can assume that it was not done to her sisters either, because they reached marriageable age and normally it would be done at around the time of the arrival of menses. He agreed that it is very difficult to know how many undergo FGC after 13 years old. The 2003 survey by the KDHS only interviewed those between 15 and 49. Dr Knighton had done a calculation that if you added in the women of 50 and over it would equal 41% of the population and of the Gikuyu population 43%. That assumes that the sample was representative and he knows the interviewers did not go to outlying areas in Kenya, and assumes that people were truthful with the young surveyors. He regards the survey as showing a minimum rate of FGC. The more rhetoric there is in the media the more secret it becomes or the more they want to please the interviewer so that it is not a question of importing hard facts but a matter of social negotiations.
- To add in those aged 50 and over would include women who were subjected to it before. There have been changes since the Missionaries attacked the practice in the 1920s. The Wamue family were against it. It is taken to be a Protestant family given the use of Isaiah as a name.
- It was put to Dr Knighton that he had explained about Gikuyu in Nairobi and that it is difficult for them to move outside. Dr Knighton was clear that he did not say that. Rather, he said they are very happy to go anywhere where they can insert themselves without too much trouble.
- As to whether the Mungiki have a base in Mombassa, Dr Knighton stated that it rises and falls with the position of the Agikuyu who are there because it is a port. There is low-level paid employment or there are shops and small traders and so the Mungiki is present. He was there in 1997 and the Agikuyu were driven out. It is a coastal area and very Islamic as a place and there are local politics and it is not an anonymous place. It is not to be regarded as a melting pot. There are many tribes represented. There are Mungiki in Mombassa. Dr Knighton had read a report only the day of the hearing, of the Mungiki saying "we are opening an "official branch" now" implying that there had been an unofficial branch before.
- At page 35 the Kenyan police were accused over deaths – he said that the Mungiki were fighting fire with fire. The police are doing the same and they have shot more people than the Mungiki. Whether they shot the right people he does not know. The strength of this response shows that they have been unable to deal with the Mungiki despite crackdown after crackdown. The Cabinet is not at one. An Inner Cabinet Minister is often accused of being pro-Mungiki. Many say that talking and reconciliation will bring the Mungiki into the fold. The Mungiki have been used by the government as its strong arm. But the Luo leader uses the Luo Taliban in the slums of Kibera. The Luo vigilante group in the slums of Nairobi who fight in the slums take the name Taliban from the Afghans and use it for their own purpose. They also take names such as "Hitler" and the like.
- As to relocation, Dr Knighton was referred to FK at paragraphs 67 and 93 bottom of page 17 "We can see little reason …" and asked to comment. We set out those two paragraphs for completeness.
"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