Kinuthia v Secretary of State for the Home Department

A claimant is not adequately protected from persecution merely because legal recourse or redress may be available after severe ill-treatment in detention. Subsequent judicial or administrative action may be insufficient protection against the risk of maltreatment while detained pending trial. A tribunal must determine whether a serious possibility of such ill-treatment exists and cannot treat post-event remedies as sufficient protection without addressing that risk. Where the tribunal has misdirected itself in law and its factual findings do not resolve the material issues, the appellate court should remit the matter for rehearing rather than determine the asylum claim itself.

The appellant, a Kenyan citizen, claimed asylum after being arrested and seriously maltreated on four occasions in Kenya. The Immigration Appeal Tribunal accepted her account and proceeded on the basis that she would rejoin the Mungiki organisation on return. It found that she would receive a fair trial if arrested, but held that recourse would be available for any maltreatment in detention. The special adjudicator had dismissed the appeal, and the Tribunal dismissed the subsequent appeal on 23 March 2001. The central issue before the Court of Appeal was whether post-event recourse supplied sufficient protection against a risk of persecution during detention.

Lord Justice Pill delivered the leading judgment. Lord Justices Tuckey and Jonathan Parker agreed. The appeal was unanimously allowed.

1. The Tribunal had accepted that severe ill-treatment while the appellant was detained pending trial would amount to persecution for a Convention reason. Its reasoning nevertheless treated the availability of recourse after maltreatment as sufficient protection. On its ordinary reading, the Tribunal had directed itself that remedies within the Kenyan legal and administrative system neutralised the risk.
2. That was a misdirection in law. The availability of recourse after severe ill-treatment does not itself provide adequate protection against the threatened ill-treatment. Subsequent judicial action may be insufficient protection against maltreatment occurring while a claimant is in custody. Lord Justice Tuckey emphasised that the Tribunal had made no finding on whether there was a real risk of severe ill-treatment; it had merely referred to a right of recourse. Lord Justice Jonathan Parker agreed that this constituted a legal misdirection.
3. The Court could not determine the claim itself. The Tribunal’s findings were unclear as to what risk of ill-treatment existed and what findings should apply once the correct legal direction was given. The matter therefore had to be remitted for rehearing. The Secretary of State was not barred from addressing the unresolved issues, including the serious possibility of persecution and the Convention reason, but the rehearing was to proceed fairly.
4. The Tribunal’s observations about the Mungiki organisation’s religious tenets and the international community’s attitude towards them were not relevant to the issue as presented. The question of internal flight did not arise on the agreed findings.

Order: appeal allowed with costs. Costs were subject to detailed assessment in respect of Community Legal Service funding. Remitted to the Immigration Appeal Tribunal for rehearing.

• Court of Appeal (Civil Division) allowed the appeal, holding that the Immigration Appeal Tribunal had misdirected itself in treating post-event recourse as sufficient protection, and remitted the matter for rehearing: [2001] EWCA Civ 2100.
• Immigration Appeal Tribunal dismissed the appeal on 23 March 2001.
• Special adjudicator dismissed the asylum appeal on 16 August 2000. The adjudicator’s disagreement with the statutory certificate preserved a right of appeal to the Tribunal.