P & Anor v Secretary of State for Home Department

An appellate immigration tribunal must respect the adjudicator’s primary findings. It may substitute a different factual conclusion only where objective grounds show that the different conclusion is the right one. An identified error of law justifies intervention only if it affected the outcome.

Serious domestic violence or forced female genital mutilation by a private individual can constitute persecution where discriminatory state inaction deprives women of effective protection. Women may constitute a particular social group, although each claimant must still establish the required persecution, Convention nexus and well-founded fear.

An internal-relocation issue ordinarily need not be investigated by an adjudicator unless the evidence or the Secretary of State raises it. If first raised on appeal, fairness may require oral evidence from the claimant.

Two Kenyan women appealed from decisions of the Immigration Appeal Tribunal which had reversed adjudicators’ determinations granting them asylum. P relied on prolonged domestic violence by her husband, discriminatory police inaction and risks under Articles 3 and 8 of the European Convention on Human Rights. M feared forced female genital mutilation by her father and members of the Mungiki sect.

The Secretary of State conceded that the Tribunal’s treatment of “particular social group” was flawed in both cases and that its approach to sufficient protection was unsustainable in P’s case. He nevertheless argued that P could relocate within Kenya and that both matters should be remitted for fresh hearings.

The central questions were whether the Tribunal had exceeded its appellate role, whether the women faced Convention persecution through serious private violence coupled with discriminatory lack of state protection, and whether the adjudicators’ decisions should be restored.

1. Both appeals were allowed. The adjudicators’ asylum decisions were restored. P’s decision was also restored under Article 3, but not under Article 8.

2. The Immigration Appeal Tribunal had to perform an appellate rather than a first-instance function. A first-instance decision was treated as correct until objective grounds showed that a different factual view was the right one. It was insufficient that the Tribunal might reasonably have preferred another view. Although an error of law was not subject to the same inhibition, the appeal could be allowed only if that error affected the outcome.

3. The Tribunal had identified no proper basis for displacing the adjudicator’s findings about P’s mistreatment and the discriminatory unwillingness of the Kenyan police to protect her. Serious domestic violence by a private individual, coupled with discriminatory lack of state protection, was capable of constituting persecution. On the accepted evidence, Kenyan women formed a particular social group, P’s persecution was connected with her membership of that group, and her fear was well founded.

4. P’s return would create a foreseeable real risk of serious ill-treatment contrary to Article 3. Whether treatment reaches the Article 3 threshold is a judgment of fact and degree. Article 8 required an exceptionally strong case involving a flagrant denial or gross violation of the right. Since the adjudicator had not applied that standard, her Article 8 conclusion was not restored and the point was left open.

5. An adjudicator was not ordinarily required to investigate internal relocation independently where the Secretary of State had not raised it and the evidence did not suggest a safe alternative location. An issue raised for the first time before the Tribunal should be admitted cautiously and, if admitted, the claimant must be permitted to give oral evidence. It was unjust to decide relocation against P without hearing her evidence.

6. M’s accepted account established a real risk of forced female genital mutilation, discriminatory absence of effective state protection and persecution for membership of a particular social group. The adjudicator’s determination was plainly right. Remittal was therefore inappropriate.

7. The decision did not establish that every woman exposed to domestic cruelty qualified for asylum or Article 3 protection. Each claim remained fact-sensitive, including any properly investigated possibility of safe internal relocation.

• Court of Appeal (Civil Division): In [2004] EWCA Civ 1640, allowed both appeals and restored the adjudicators’ asylum determinations. It also restored P’s Article 3 determination, but not her Article 8 determination.
• Immigration Appeal Tribunal: Allowed the Secretary of State’s appeals and reversed both adjudicators’ asylum determinations. It also rejected P’s human-rights claims. In M’s case, the parties agreed before the Tribunal that the adjudicator’s human-rights determination was erroneous.
• Adjudicators: Allowed P’s appeal on asylum and Articles 3 and 8 grounds. A different adjudicator allowed M’s appeal on asylum and human-rights grounds.