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

In an internal-relocation case, a tribunal must determine whether an established fear of persecution remains well-founded in the proposed location. It must engage closely with the claimant’s particular history and with evidence that persecutors may identify, locate or target her. General evidence that others live safely elsewhere is insufficient where the case concerns direct victimisation. The tribunal must also assess whether relocation would be reasonable and not unduly harsh under paragraph 3390 of HC 395 (as amended). Cogent evidence of trauma may be relevant even where objective safety is established. A tribunal may reject expert evidence, but must give adequate reasons and should not rely on evidential gaps without inviting further evidence where appropriate.

The appellant, a Kenyan woman, claimed asylum for herself and her elder daughter because of a well-founded fear of female genital mutilation by the Mungiki sect. Her account of persecution in the Kiambu area was substantially accepted. The Asylum and Immigration Tribunal nevertheless dismissed the appeal on reconsideration, finding that she and her dependants could safely and reasonably relocate elsewhere in Kenya.

The appeal concerned whether the Tribunal had properly assessed the specific risk that the Mungiki might trace and target the appellant and her daughter after relocation, and whether it had fairly evaluated the expert evidence and the information available about the appellant’s personal circumstances.

Appeal and remission. The Court of Appeal allowed the appeal and remitted the case to the Asylum and Immigration Tribunal for a proper determination of the reasonableness and safety of internal relocation. Lord Justice Rix and Lady Justice Arden agreed with Lord Justice Sedley.

1. The accepted framework under paragraph 3390 of HC 395 (as amended) required consideration of whether the appellant was reasonably likely to encounter anyone in the proposed location who could require her or her daughter to undergo female genital mutilation, and whether she could reasonably be expected to live there having regard to general and personal circumstances. The Tribunal’s guidance also recognised the need to consider economic survival, cultural context and available support. The Court noted that no issue was taken with that account of the relocation test, including the economic-survival point in [2006] UKHL 5.
2. The Tribunal had failed to engage with the particular case. The issue was not merely whether women generally could avoid female genital mutilation elsewhere, or whether the Mungiki would be welcomed locally. It was whether, having killed the appellant’s husband and pursued the appellant and her daughter, the sect might identify, locate and target them through enquiry, rumour, their name, the family connection, the lost dowry or the repudiated marriage. The Tribunal’s generalised findings did not answer that question and overlooked material evidence.
3. A tribunal is entitled to disagree with an expert, provided it gives adequate reasons. The criticism of Dr Knighton as partisan and insufficiently objective was unwarranted, and the Tribunal had not properly appreciated that his remit was to provide contextual evidence rather than determine the appellant’s individual case. This criticism alone did not undermine the Tribunal’s general conclusions about risk, but formed part of the wider failure to assess the appellant’s circumstances fairly.
4. Where a tribunal considers that further evidence about a claimant’s family or circumstances is required, it may invite that evidence and draw an adverse inference if the claimant declines without good reason. It was not justified in holding supposed omissions against the appellant where no such invitation had been made and relevant information was already contained in the record.
5. The Court added that reasonableness is not necessarily confined to objective safety. In an appropriate case, cogent evidence that past persecution has left a claimant traumatised and genuinely terrified of return may be relevant to whether relocation is unduly harsh, although objective safety will ordinarily be conclusive.

1. Court of Appeal (Civil Division): In [2008] EWCA Civ 119, allowed the appeal and remitted the case for proper determination of internal relocation.
2. Asylum and Immigration Tribunal: After initially finding a material error of law, dismissed the appeal on full reconsideration, holding that relocation elsewhere in Kenya would be safe, reasonable and not unduly harsh.
3. Adjudicator: Following refusal by the Home Office, dismissed the appeal, while accepting substantially the appellant’s account of the events leading to her departure.