VNM v Secretary of State for the Home Department

Where internal relocation is relied upon in an Article 3 protection claim, the decision-maker must address each issue properly raised. It must assess both whether those feared could discover and locate the person in the proposed area and whether it would be unreasonable to expect relocation there. A finding that the person is unlikely to be found does not resolve the latter question.

The reasonableness inquiry requires an individual assessment of the practicality of settling elsewhere, including any need to conceal personal circumstances and the effect of psychological vulnerability on the ability to sustain a reasonable life. Failure to determine that issue is an error of law requiring reconsideration.

The appellant, a Kenyan Kikuyu woman, claimed that members of the Mungiki sect had raped her and threatened her with forced female genital mutilation. The adjudicator accepted her account, dismissed her asylum appeal, but allowed her appeal under Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950. He found that internal relocation within Kenya was not an option.

The Immigration Appeal Tribunal, in decision HX05078-04 dated 17 January 2005, reversed that determination. It held that the appellant could avoid discovery by relocating within Kenya and that she had a viable internal flight alternative. The appellant appealed on the basis that the adjudicator had made no legal error or, alternatively, that the tribunal had itself erred. The central question was whether the tribunal could decide internal relocation without determining whether it would be reasonable to expect her to settle elsewhere in Kenya.

1. Appeal allowed. The tribunal’s determination was set aside and the Secretary of State’s appeal from the adjudicator was remitted for a fresh hearing before the Asylum and Immigration Tribunal.

2. Per Wilson LJ, with whom Moore-Bick and Brooke LJJ agreed, the adjudicator’s finding on internal relocation contained a material gap. He had not explained why the Mungiki, without access to state records, would be likely to learn of the appellant’s return to Kenya or locate her in a different area. The appellant’s assertion that they would find her required express consideration. The tribunal was therefore entitled to set aside the adjudicator’s determination on that ground.

3. The tribunal nevertheless committed a separate error of law. It considered only whether the Mungiki were unlikely to find the appellant in another part of Kenya. It did not determine the distinct issue of whether it would be unreasonable to expect her to relocate there. That issue had been raised by both parties and had not ceased to be material. The inquiry required consideration of the practicability of resettlement, her ability to maintain any necessary false personal and family history, and whether her psychological vulnerability allowed her and her daughter to sustain a reasonable life on that basis.

4. The tribunal’s refusal to hear further oral evidence was robust but remained within its procedural discretion. The safeguards identified in P and M [2004] EWCA Civ 1640 did not directly govern because internal relocation had been raised and considered before the adjudicator.

5. Brooke LJ added that an Article 3 claim required strong grounds for believing that return would expose the appellant to a real prospect of inhuman treatment, which forced female genital mutilation would constitute. He observed that relocation hardship may more readily engage Article 8, and that earlier Court of Appeal observations must be read in light of R (Ullah) v Special Adjudicator [2004] UKHL 26 and R (Razgar) v Home Secretary [2004] UKHL 27. The fresh hearing was recommended to await the House of Lords’ decisions in Januzi v SSHD [2003] EWCA Civ 1187 and Hamid, Gaafar and Mohammed v SSHD [2005] EWCA Civ 1219.

1. Court of Appeal (Civil Division) — in [2006] EWCA Civ 47, allowed the appellant’s appeal, set aside the tribunal’s determination, and remitted the matter to the Asylum and Immigration Tribunal.
2. Immigration Appeal Tribunal — by decision dated 17 January 2005 (HX05078-04), allowed the Secretary of State’s appeal, reversed the adjudicator’s Article 3 determination, and held that internal relocation within Kenya was viable.
3. Adjudicator — accepted the appellant’s account; dismissed her asylum appeal but allowed her appeal under Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950, finding that internal relocation was not an option.