Ayako, R (on the application of) v The Secretary of State for the Home Department

Certification of an asylum claim is justified where the claim is manifestly unfounded and could not succeed on any legitimate view. The assessment is fact-specific and requires consideration of the evidence as a whole, including the claimant’s age, family and social circumstances, education, location and ability to live independently. Statistical evidence must be connected rationally to the particular risk alleged. A general prevalence figure does not establish a risk of forced treatment where the relevant forms of pressure are absent or avoidable.

The claimant sought judicial review of the Secretary of State’s decision to certify her asylum claim under section 94(2) of the 2002 Act. She feared female genital mutilation if returned to Kenya because she belonged to the Kisii ethnic group. Permission was granted by Bean J on the basis that the prevalence of female genital mutilation arguably meant that her claim was not bound to fail.

The central issue was whether, having regard to the claimant’s individual circumstances and the expert evidence, her asylum claim could succeed on any legitimate view.

1. Claim dismissed. The certificate under section 94(2) of the 2002 Act was justified because the claim was bound to fail.
2. The applicable test, illustrated by Baganavicius, was whether the claim was manifestly unfounded, wholly lacking in substance, or unable to succeed on any legitimate view. The parties did not materially disagree about that test.
3. The assessment was necessarily fact-specific. The court did not intend to establish a general approach for female genital mutilation cases.
4. The claimant’s age substantially reduced the risk because the practice usually occurred at a much earlier age. The absence of living parents removed the evidence of parental pressure. Her education, Catholic background, familiarity with Nairobi and demonstrated ability to live independently were further relevant considerations.
5. The evidence that 95.9 per cent of Kisii women had undergone female genital mutilation did not establish a comparable risk of forced treatment. The statistic included women who had consented or were not opposed to the practice, whereas the claimant’s case required proof of physical force. The expert’s further assertions were inadequately supported and did not rationally address the claimant’s circumstances.
6. Returning to Nairobi appeared the most appropriate course. The claimant’s education and computing qualifications made it impossible to conclude that she could not find employment and live independently there. Taken cumulatively, the evidence showed that the claim could not succeed on any legitimate ground.

The claimant was granted an assessment of legal aid costs.

The judgment itself describes the following prior procedural steps:

• Administrative Court: Bean J granted permission on paper on 23 August 2005.
• High Court (Administrative Court): Mr Justice Lindsay heard the substantive judicial review and dismissed the claim.