CM (Kenya) v Secretary of State for the Home Department

When deciding whether an asylum claimant can safely relocate internally, a tribunal must apply the unduly harsh standard and confront material evidence about conditions in the proposed place of relocation. A conclusion cannot silently reject a distinct and significant expert opinion which may show that relocation is unsafe or unduly harsh. If the tribunal prefers conflicting objective evidence, it must identify the conflict and give at least an outline reason for rejecting the expert evidence. Failure to address such material evidence is an error of law.

The appellant, a Kenyan woman, claimed asylum after fleeing her family because her father intended to subject her to female genital mutilation. An adjudicator dismissed her appeal in December 2004 after disbelieving her account.

Following an error-of-law appeal, the Asylum and Immigration Tribunal ordered a full reconsideration. On reconsideration, the tribunal accepted that the appellant faced persecution in her home area and would not receive state protection. It nevertheless held that she could relocate to Nairobi because her father was unlikely to find her there and relocation would not be unduly harsh.

The appeal concerned whether the tribunal had lawfully considered expert evidence of a separate risk to the appellant as a single woman in Nairobi, including gender-based violence and witch-hunt attacks.

1. Appeal allowed. Moses LJ, with whom Rix and Buxton LJJ agreed, held that the tribunal was entitled to find that the appellant’s father was unlikely to find her in Nairobi. It was also entitled to take account of her previous employment and support there, the objective evidence concerning single women in Nairobi, and her abilities.
2. The tribunal had correctly directed itself by reference to the internal-relocation standard in [2006] UKHL 5. The issue was whether relocation would be unreasonable because it would be unduly harsh, having regard to the claimant’s ability to live a relatively normal life in the proposed area and to reach it without undue hardship or difficulty.
3. However, the tribunal failed to address a distinct and important part of Dr Aguilar’s expert evidence. That evidence did not merely concern the risk that the appellant’s father would locate her. It identified a separate risk arising from conditions for women in Nairobi, including violence by groups hostile to women who rejected female genital mutilation.
4. A tribunal need not deal with every point advanced. But where expert evidence bears significantly on both safety and whether internal relocation would be unduly harsh, it cannot be rejected silently or by implication. If conflicting objective material justifies rejecting it, the tribunal must identify the conflict and state at least in outline why it prefers the other material. Its failure to do so was an error of law.
5. The court formally allowed the appeal. It observed, without directing the further course, that the Secretary of State should consider whether fair immigration control required further proceedings after the appellant’s prolonged, blameless involvement in the asylum process.

• Court of Appeal (Civil Division): Allowed the appeal: [2007] EWCA Civ 312.
• Asylum and Immigration Tribunal: On reconsideration, held that the appellant could reasonably relocate to Nairobi and that relocation would not be unduly harsh.
• Asylum and Immigration Tribunal: On 22 December 2005, allowed an appeal on errors of law in the original decision and directed a full reconsideration.
• Adjudicator: On 14 December 2004, dismissed the appellant’s asylum appeal after rejecting her account.