Kagema v Secretary Of State For Home Department

Whether conduct amounts to persecution is ordinarily a question of fact, applying the ordinary meaning of the word and considering all relevant circumstances in the round. An appellate court may intervene only for an error of law or where the decision was one that no reasonable adjudicator could reach. Past persecution is relevant to, but does not determine, whether a claimant has a well-founded future fear. Ethnic harassment may amount to persecution, depending on its frequency, extent and effect. The appeal was dismissed because the adjudicator had properly directed herself and her conclusion on future risk was not irrational.

The appellant, a Kikuyu citizen of Kenya, claimed asylum on ethnic and political grounds after displacement from his home and successive camps in Kenya. The Secretary of State refused the claim. A Special Adjudicator dismissed his appeal, and the Immigration Appeal Tribunal dismissed a further appeal on 29 April 1996. Permission to appeal to the Court of Appeal was granted.

Before the Court of Appeal, the appellant challenged only the assessment of ethnic persecution. The central issue was whether the adjudicator had erred in law, or reached a conclusion that no reasonable adjudicator could reach, in finding that there was no well-founded fear of persecution for a Convention reason.

1. Appeal dismissed. The Court of Appeal held that the Special Adjudicator had made no error of law and had not reached a Wednesbury unreasonable conclusion.
2. The word persecution was an ordinary English word. Following Cozens v Brutus [1973] AC 854, its application to proved facts was ordinarily a question of fact, not law. The adjudicator was required to consider whether the appellant had a well-founded fear of persecution for a Convention reason, taking all relevant circumstances into account and viewing the matter in the round.
3. The appellate question was limited. Where the adjudicator had properly directed herself, the Court of Appeal could not substitute its own assessment of the facts. Intervention required an error of law or a decision that no reasonable Special Adjudicator could have reached.
4. The court observed that ethnic harassment could amount to persecution. Its assessment depended on the actions taken, their frequency, extent and effect. Past events could be persuasive evidence of future risk, but could not by themselves determine whether the fear was well-founded at the date of the proceedings.
5. On the accepted facts, the appellant had access to food, basic shelter and toilet facilities at Kiambu, was not detained there, could go to Nairobi and could leave Kenya. Evidence of an advancing resettlement programme also supported the adjudicator’s conclusion that a future well-founded fear had not been established. Legal aid taxation was ordered for the appellant.

1. Court of Appeal (Civil Division) [1996] EWCA Civ 927: appeal dismissed.
2. Immigration Appeal Tribunal: appeal dismissed on 29 April 1996.
3. Special Adjudicator: appeal dismissed by decision dated 31 January 1996.
4. Secretary of State for the Home Department: asylum application refused by letter dated 24 July 1995.