M v Immigration Appeal Tribunal

Internal relocation may defeat an asylum claim where the decision-maker has made clear, reasoned findings that the feared actors will not pursue the claimant outside the home area and that safe residence is available elsewhere. A finding that the claimant can live discreetly does not, on the evidence, necessarily require an impermissible denial of identity or forced modification of conduct. Where the adjudicator’s findings adequately address those issues and disclose no arguable error, permission to appeal should be refused.

The applicant, a homosexual Kenyan national, claimed asylum after his partner was lynched and killed and after he received threats from family members and a mob. The adjudicator accepted a well-founded fear of serious harm in the applicant’s home area, but found sufficient safety elsewhere in Kenya, particularly in a more distant area or large city. The Immigration Appeal Tribunal refused permission to appeal on 9 January 2002. Henriques J dismissed the applicant’s judicial review claim on 10 February 2005. The renewed application concerned whether the adjudicator had adequately considered internal relocation, the applicant’s discreet conduct, and whether relocation would effectively require him to conceal his sexuality.

1. Application refused. The adjudicator had given careful and reasoned findings. The applicant’s feared persecutors were his close family members and the mob, and neither had pursued him after he left his home area. The applicant had relocated previously, had practised his homosexuality discreetly, and could live safely in a more distant part of Kenya, including a large city. Those findings gave the renewed application no prospect of success [11], [14].
2. The Court rejected the submission that the adjudicator’s conclusion necessarily required the applicant to amend his behaviour or deny his identity. There was no evidence that he had practised his homosexuality other than discreetly, even before extensive persecution, and no explanation why the fear identified by the adjudicator extended beyond the family and mob [13].
3. The proposed analogy with a paedophile relocating within the United Kingdom was not apt. It assumed uniform hostility throughout the country, whereas the adjudicator had found that attitudes towards homosexuality in Kenya were not uniform and that homosexual conduct was not generally prosecuted unless associated with another offence [12].
4. The Convention challenge therefore failed on the adjudicator’s findings. The renewed application for permission to appeal was refused, with a detailed assessment of the applicant’s funds.

1. Court of Appeal (Civil Division) — In [2005] EWCA Civ 820, the renewed application for permission to appeal was refused.
2. High Court — Henriques J dismissed the judicial review application on 10 February 2005.
3. Immigration Appeal Tribunal — Refused permission to appeal on 9 January 2002.
4. Adjudicator — Dismissed the asylum claim, accepting a well-founded fear in the home area but finding safe internal relocation elsewhere in Kenya.