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

In a renewed application for permission to seek judicial review of a fresh-claim decision, a claimant relying on the impact of required discretion must at least assert, and support with evidence, that discretion would be oppressive or intolerable. Evidence that the claimant previously concealed his sexuality does not itself establish that proposition.

An expert report cannot be discounted solely because it lacks cited sources where its relevant conclusions, based on the expert’s research and experience, could realistically persuade an immigration judge to reach a different conclusion. The permission threshold concerns whether the claim may succeed, not whether the court considers the expert’s conclusions likely to be accepted.

The claimant, a homosexual Kenyan national, sought permission to challenge the Secretary of State’s refusal to treat further representations as a fresh claim. An immigration judge had previously rejected his appeal, finding that he could relocate safely within Kenya and live discreetly.

The renewed application relied on two grounds. The first concerned an expert report about the spread of information and risks faced by homosexual people in Kenyan society. The second relied on the development of the law concerning whether a claimant could reasonably be expected to live discreetly. The central issues were whether the new material created a realistic prospect of success before another tribunal and whether the claimant had established an arguable error of law by the Secretary of State.

1. Ground 2 dismissed. The authorities establish that a claimant relying on the proposition that required discretion would breach his rights must, at the very least, assert that discretion would be oppressive or intolerable and provide evidence capable of supporting that conclusion. The claimant’s evidence that he had previously concealed his homosexuality because of fear following his cousin’s death did not establish that maintaining discretion had been oppressive then, or would be oppressive on return. There was therefore no factual platform for an arguable challenge based on the development of the law concerning discretion.
2. Ground 1 granted permission. An expert report may create a realistic prospect of success even where it does not cite sources or objective country materials, provided its relevant conclusions are sufficiently clear and, if accepted by an immigration judge, could lead to a different result. The expert’s research and experience were capable of carrying sufficient weight for that purpose.
3. The report contained material that did not assist the claimant, including concessions about social pressure and the limited proportion of attackers. However, its conclusion that family, kinship and the wider public domain were closely connected in Kenyan society, so that discreet homosexual practice might become public knowledge, arguably undermined the assumption that discreet individuals were unlikely to face persecution.
4. The court was not deciding whether the report was correct or whether an immigration judge would accept it. The issue was whether the Secretary of State might have erred in discounting it for lack of sources and in failing to recognise a realistic prospect of success. Permission was therefore granted on ground 1 only.

The judgment records a renewed application for permission to apply for judicial review following the claimant’s unsuccessful appeal before an immigration judge in 2005. No citation for that earlier decision is stated.