The decision

Heard at Field House

JK (Risk-Kikuyu) Kenya CG [2003] UKIAT 00044
On 25 April 2003

Dictated 25 April 2003


Date Determination notified:



Mr H J E Latter (Chairman)
Mr D Bremmer
Mr P Rogers, JP






For the appellant: Mr A Durance of Counsel
Instructed by AS Law, Solicitors
For the respondent: Ms D Prentice, Home Office Presenting Officer


1. This is an appeal by Joseph Kamau, a citizen of Kenya, against the determination of an Adjudicator (Mrs J Baker) who dismissed his appeal against the decision made on 22 November 2001 refusing to grant him leave to enter under the provisions of the Human Rights Act 1998.

2. The background to this appeal is that the appellant arrived in the United Kingdom on 28 March 1998 claiming asylum on arrival. This application was refused on 22 May 1999. An appeal was dismissed by an Adjudicator but remitted for a fresh hearing. The appeal was again dismissed and the subsequent application for leave to appeal was refused. The appellant then asserted that a refusal to grant him exceptional leave to remain would be a breach of his rights under the Human Rights Convention. For the reasons which the Secretary of State has set out in letter dated 2 November 2001 he was satisfied that there would not be a breach of Article 3 if the appellant were to be removed to Kenya.

3. The Adjudicator heard the appeal against this decision on 24 October 2002. It is the appellant’s assertion that he would face harassment, discrimination and ethnic cleansing in the Rift Valley. He asserted that he had no home to return to and no means of livelihood or support there. The Secretary of State noted that the appellant’s mother and younger brothers had relocated to Kiambu in the Central Province to live with his grandparents after the 1994 ethnic clashes. He noted that there were Kikuyu communities all around Kenya and Kikuyus who had been displaced by ethnic clashes in the Rift Valley were able to travel freely to other parts of Kenya where they could integrate with other Kikuyu communities.

4. Having reviewed the evidence the Adjudicator found that the appellant was a healthy, single young man. He might find himself living in quite primitive conditions on his return but in that regard he would be in a no different situation to other people who lived in rural areas in Kenya. He may have difficulties with employment but he was in a better position than most people in rural communities as he had acquired a good command of spoken and written English. The Adjudicator took into account the objective evidence on Kenya and the fact that there were still occasional sporadic outbreaks of ethnic violence even outside the Rift Valley. She was not satisfied on the evidence as a whole that the life of a Kikuyu in Kenya was such that it put the appellant at risk of being subjected to a regime where racial discrimination was part of everyday life. It was not reasonably likely that there would be an interference with his rights under Article 3 if returned.

5. The grounds of appeal argue that the Adjudicator applied the wrong standard of proof when she referred to what was reasonably likely in paragraphs 19, 22 and 24. It is also alleged that her findings are irrational as she failed to take into account that the ethnic persecution of Kikuyus was not as a result of acts of third parties but was a policy orchestrated by the government. To that extent internal relocation was not an appropriate alternative. The appellant had been the victim of targeted harm because of his ethnicity outside the Rift Valley and in the area where his family had relocated. Attacks on the Kikuyu were not limited to the Rift Valley. It was further argued that the Adjudicator failed to show by any or any adequate reasoning whether she had taken account of these factors. She was referred an Adjudicator’s determination in Wanjiku dated 6 August 2002 where an appeal by an ethnic Kikuyu had been allowed on both asylum and human rights grounds.

6. When granting leave to appeal, the Vice President commented that the Adjudicator appeared to have confused the assessment of whether the appellant had shown substantial reasons for concluding that he would be at risk of treatment contrary to Article 3 in his home district with the considerations required for the internal flight/protection alternative. She should have decided firstly whether there was a well-founded fear or real risk in his home district of the Rift Valley and then gone on to consider the issue of internal flight.

7. At the hearing before the Tribunal Mr Durance submitted that the Adjudicator’s findings were confused. She had referred to the 11 risk factors in Sayandan but these were specific to Sri Lankan appeals. It was not clear from her conclusions what her findings were. Mr Durance referred the Tribunal to background evidence relating to the current situation in Kenya and in particular to paras 5.45-52 of the CIPU report 2002. He submitted that there would still be a real risk to the appellant of treatment contrary to Article 3 because he was a Kikuyu. His experiences in the past would put him at risk. There was no other particular characteristic in the appellant’s background which would put him at risk.

8. Ms Prentice submitted that even though it was arguable that the Adjudicator had not made clear findings about the risk of Article 3 treatment in the Rift Valley, her findings were clear that the appellant would be safe in other areas and that it would not be unduly harsh for him to return. She was entitled to give little weight to housing and employment problems.

9. The Adjudicator has arguably conflated the issues of whether the appellant would be at risk of treatment contrary to Article 3 in his home area with factors relevant to the issue of whether it would be unduly harsh for him to relocate elsewhere in Kenya. The risk factors identified in Sayandan are helpful to illustrate the kind of factors which should be taken into account when assessing internal flight but inevitably they are of limited application when considering the situation in Kenya as opposed to Sri Lanka.

10. As the Adjudicator has commented in paragraph 16 of her determination the history of the ethnic clashes in Kenya is set out in paragraphs 5.42-51 of the CIPU report. Two years of violence in the Rift Valley had by 1993 forced 300,000 people to flee their homes. However, by November 1999 President Moi made a statement that those remaining displaced should return and that maximum security would be ensured although local human rights observers did question the commitment behind this statement. Ethnic violence is also dealt with in paragraph 5.52 but this relates to incidents in 1998. The Tribunal also notes that in January 2000 President Moi announced that additional security forces would be deployed to areas including the Rift Valley Province. There was an allegation from the then opposition leader Mwai Kibaki that the government had failed to protect its citizens and claiming that only Kikuyus had been targeted. In this context the Tribunal notes that Mwai Kibaki is now the President of Kenya following the elections in December 2002.

11. In assessing the risk to the appellant the Adjudicator was entitled to take into account the Adjudicator’s determination in March 2000 dismissing the asylum appeal. The Adjudicator had found the appellant to be an unreliable and inconsistent witness. He had relied in support of his claim on episodes in 1992 and 1994. The Adjudicator considered that it was probable that the appellant and his family might have been affected by the clashes in 1992 and 1994 resulting in the family relocating to the Kiambu area. She commented that the appellant had not given any reasons as to why he did not relocate from the Rift Valley at that time. He had travelled to Mombassa where he had stayed for some months and managed to find to a job. There had been no evidence that he had suffered any harassment there. The Adjudicator rejected his assertion that there was no place where he could live in safety in Kenya. She was satisfied that it would not be unreasonable or unduly harsh for him to follow his family’s example by relocating in Kiambu.

12. The situation has continued to improve since then and there has now been a change of government in Kenya. In the light of the passage of time since the appellant left Kenya and the current circumstances, the Tribunal are satisfied that there is now no real risk of treatment contrary to Article 3 were the appellant to return to his home area. Even if this is not the case, the Tribunal agree with the Adjudicator’s conclusion that it would not be unduly harsh for him to settle elsewhere than in the Rift Valley as other members of his family have done. She commented that even if he did not know what had happened to other members of his family as he asserted and was unable to be reunited with them, there were Kikuyu communities in various parts of the country outside the Rift Valley to which he could go.

13. Mr Durance accepted that there were no factors other than the appellant’s account of what had happened to him in the past to support a contention that there was anything particular in his background or circumstances which would put him at risk of treatment contrary to Article 3. The Tribunal were referred to the Human Rights World Watch Report 2002 referring to sporadic clashes between members of ethnic groups allied to the ruling party and those perceived to support the opposition in the run-up to the 2002 election. However, the elections have now taken place. There is no reason to believe that there is any particular risk to the appellant because of his Kikuyu background. The Tribunal were referred to the determination in Wanjiku but this determination was clearly decided on its own particular facts at the date of hearing. Accordingly, for these reasons, in our view the Adjudicator’s conclusions were correct.

14. This appeal is dismissed.

H J E Latter
Vice President