The decision

JG (HIV-Kenya) Kenya [2004] UKIAT 00190


Date of Hearing : 5 April 2004
Date Determination notified:
12 July 2004


Dr H H Storey (Chairman)
Mrs M E McGregor
Mr G F Sandal



Secretary of State for the Home Department

Mr J. Jackson of Counsel, instructed by South West Law, for the appellant; Mr P. Deller for the respondent.


1. The appellant is a national of Kenya. She appeals against the determination of an Adjudicator, Mr N.J. Osborne, dismissing his appeal against the decision giving directions for removal following refusal to grant asylum.

2. The basis of the appellant's asylum claim was that she had suffered persecution at the hands of the Mungiki sect. Her husband was a member of a Mungiki family who had converted to Christianity. His family wrongly blamed the appellant for his conversion. Members of this sect had attempted to forcibly circumcise her and had killed her husband. After she had moved back to her father’s house they had raped both the appellant and her daughter, the latter died as a result. She moved again to the house of a friend in Nairobi but the Mungiki traced her through her brother. They brutally assaulted her and forced her to promise to take her children back to her father-in-law.

3. The appellant also claimed that return would violate her Article 3 right not to be subjected to ill-treatment, as she suffered from HIV, herpes, syphilis and post-traumatic stress disorder.

4. The appellant wholly rejected the appellant's account of her adverse experiences at the hands of the Mungiki. The grounds of appeal challenge his adverse credibility findings but fail in our view to undermine them. The Adjudicator correctly identified serious inconsistencies in the appellant's account in relation to the date on which she said the Mungiki raped her, and in relation to the date of the final incident which caused her to flee to Kenya. The Adjudicator also correctly identified inconsistencies in her evidence as to whether she was visited by members of the Mungiki in May 2000 before her father died and on what date she arrived in the UK. He was also quite entitled to find implausible the following aspects of the appellant's account: being saved from suicide by a “Good Samaritan” who within twenty-four hours conveyed her to the UK; her failure to know when her husband converted to Christianity; her account of the police taking no action when she reported the killing of her husband; and her account of the Mungiki simply forcing her to promise to take her children back to their father-in-law rather than taking the children there and then. The Adjudicator properly drew support for his adverse findings in respect of the appellant's claims about police inaction from the objective country materials, which described active steps taken by the authorities to crack down on the Mungiki. We do not consider that the BBC News article referred to in the grounds contraverted the Adjudicator's principal point that in general the authorities did not simply do nothing in response to reports of serious crimes committed by the Mungiki.

5. Mr Jackson sought to argue that the Adjudicator's assessment wrongly discounted the evidence of three medical experts (doctors Lilywhite, Dent and Greenhouse) each of whom had assessed her as heavily traumatised as a result of past incidents. The Adjudicator's finding regarding the PTSD diagnosis, he argued, improbably implied that the appellant had ‘managed to deceive not one, but three medical professionals’. He drew our attention to responses to the Adjudicator's determination by Dr Lillywhite and Dr Greenhouse.

6. With respect to Mr Jackson, these submissions seek to glean too much from the Adjudicator's comments on Dr Lilywhite’s medical evidence. They represent that he assumed this doctor was wholly uncritical in his acceptance of what the appellant had told them. However, what the Adjudicator actually said was that this doctor ‘did not carry out a forensic analysis of the credibility of what she said’. Having read Dr Lillywhite’s further comments and considered also what Drs Dent and Greenhouse have said, we are not persuaded that the Adjudicator's essential point was unsound. Whatever evaluation they had conducted of the appellant's evidence it was not one which subjected it to careful assessment in the light of the evidence as a whole. They had based their medical judgment on a broad acceptance of the appellant's narrative. Furthermore, the principal matter the Adjudicator had to assess was not whether, by virtue of some unfortunate experiences in Kenya, the appellant had been seriously traumatised, but, whether the specific account of adverse experiences at the hands of the Mungiki sect was credible.

7. It is further submitted that the Adjudicator erred in first finding the appellant’s account incredible and only then considering the medical evidence. Mr Jackson highlighted the Adjudicator's statement at paragraph 27 that ‘due to my above findings I can in no way be satisfied how, or indeed, when the appellant suffered the assault or the circumstances in which it was suffered’. However, in our view the Adjudicator was doing no more here than dealing sequentially with submissions. At paragraph 9 the Adjudicator reminded himself of his duty ‘to consider the evidence as a whole’. We are not persuaded that he in fact diverged from this approach.

8. In relation to the medical evidence stating that injuries to the appellant's vagina were consistent with her account of Mungiki attacks on her person, the Adjudicator plainly did bear this in mind, and specified himself that: ‘I further accept that she has a 2 cm jagged scar in her vagina area which I am satisfied is consistent with a serious assault’. Once again, we consider that in the context of the evidence as a whole he was entitled to conclude that he could not be satisfied with the appellant's account of the circumstances in which she suffered these injuries.

9. Mr Jackson also submitted that the Adjudicator failed to consider whether the appellant’s ability to give coherent evidence might have been adversely affected by her PTSD. However, none of the doctors in the medical reports submitted in this case identified cognitive impairment at a level preventing the appellant from giving a coherent account.

10. As regards the Adjudicator’s approach to the demeanour of the appellant whose distress at the hearing was said to be evident, it is true he did not refer in his determination to her displaying any distress. That is perhaps unsurprising since Adjudicators who specialise in asylum appeals are often required to conduct hearings in which a witness is distressed to a greater or lesser extent. However, as the written grounds themselves recount, the Adjudicator asked the appellant to compose herself on a number of occasions throughout the hearing. Accordingly we are satisfied he was sensitive to the fact that the appellant was distressed to some extent and took active steps to ensure this did not prevent her giving a proper account of herself.

11. He did not consider her degree of distress in giving evidence demonstrated that her account of persecution at the hands of the Mungiki sect was true. We see nothing unsustainable about such a conclusion.

12. We do not propose to address each and every point raised in the extremely prolix grounds of appeal, although we would observe, in relation to grounds 5.1.2 and 5.1.3, that the Adjudicator was not obliged to accept the appellant's explanations for her difficulties with dates. As regards the complaint raised about the Adjudicator's assessment that the appellant's purpose in coming to the UK was to obtain medical treatment, whether or not this assessment was sound, it remains that the appellant had not shown that she had a well-founded fear of the Mungiki.

13. We do not consider that it has been shown that the Adjudicator's adverse credibility findings were unsustainable.

14. It remains, however, to consider whether the appellant's medical condition meant or would mean that return would cause serious harm to her physical and moral integrity.

15. Before addressing the medical evidence directly, we would observe that, as a consequence of the Adjudicator's adverse credibility findings, there is no proper basis for concluding that if the appellant is returned to Kenya she will be without family support of some kind. On her own evidence she had left her children in good hands; that was sufficient to indicate that she would herself have some family or extended family network to return to.

16. That brings us to the medical evidence. As we observed to Mr Jackson, the benchmark for how the appellate authorities are to approach cases of persons who are HIV positive has been set by the Court of Appeal in N [2003] EWCA Civ 1369 in two respects. Firstly it defines the correct legal test, that the person’s case must be extreme and exceptional. Secondly, it identifies by reference to the particular case of N, what level of illness and life expectancy is required to cross the threshold of Article 3.

17. What is clear in this respect about the appellant's condition is that it is much less serious than that considered in N. In N the appellant's CD4 count prior to commencement of treatment was 20. In this case her CD4 count was 33. In N life expectancy (without treatment) was assessed as less than twelve months. In this case Dr Gompels, on the basis of her initial (very low) CD4 count of 33 and her viral load of 33,847 copies, estimated that she had an 85% probability of progressing to AIDS in three years and a 97.9% probability of progressing to AIDS in six years time. In addition to being HIV positive the appellant in N had additional medical complications. The appellant in this case had a history of syphilis but it is not suggested that she still has this condition. Otherwise she has an ongoing herpes virus and she also suffers from PTSD. As sympathetic as we are to these difficulties they do not constitute serious ongoing conditions and they do not identify her overall medical condition as extreme or exceptional. The only additional factor cited by Mr Jackson was that the appellant has an allergy to sulphur-based drugs. We will return to this factor in a moment.

18. Bearing in mind that the appellant's illness was not as advanced or as serious as that of N, we turn next to consider what would be her situation on return to Kenya.

19. Much space is devoted in the grounds to highlighting the lack of likelihood that the appellant would be able to obtain adequate medical treatment. In the UK the appellant was on combination therapy and was also been prescribed nebulised pentamidine as a prophylaxis against pneumocystis carinii pneumonia (PCP) an acute terminal illness, which she is at risk of developing. She is prescribed nebulised penatamadine because she is allergic to the normal sulphur drugs. Professor Barnet’s and Dr Meadway’s expert opinions were before the Adjudicator. The former expert stated that without the prophylaxis the appellant was likely to develop PCP rapidly. The latter expert said that the special nebuliser which is required to administer pentamidine would not be available in Kenya.

20. The Adjudicator did not find the unavailability of a special nebuliser an insuperable problem. He considered on alternative treatment regime could be implemented. Since his determination was promulgated there has now been adduced to us further responses from Dr Gompels and Dr Meadway. These make clear that the only alternative to pentamidine is Atovaguone ‘which is exorbitantly expensive even by UK standards’ and within Africa is only available in South Africa in any event.

21. In the light of these additional responses we are prepared to accept that the Adjudicator was wrong to find that an alternative prophylaxis against PCP would be available.

22. In relation to the availability of treatment for persons who are HIV positive generally, the Adjudicator was right to identify a number of initiatives undertaken the Kenyan government to combat AIDS and treat HIV and to describe its approach as ‘serious and urgent’. He was also correct to give weight to the fact that the Kenyan government is set to receive 179.4 million dollars from the United Nations Global Fund to fight AIDS and other diseases in the next five years. Equally, however, we accept that he was wrong to deduce from this body of information that anti-retroviral drugs are available to HIV-positive sufferers generally. Mr Jackson’s grounds cite figures which suggest that only 32,000 of the 200,00 people requiring AVRs will benefit from the UN Global Fund.

23. There is thus no certainty that the appellant would be able to access appropriate medical treatment within the context of public of voluntary sector medical provisions.

24. However, in considering the appellant’s ability to access appropriate treatment the Adjudicator also took account of the fact that she had not shown she would be unable to access needed treatment to some degree. At paragraph 33 he found it “likely that she has more money available to her than she has disclosed ... I am not satisfied she would be unable to pay for necessary drugs in Kenya upon her return”. In the context of the evidence as a whole we consider that this was an entirely sustainable finding. So far as access to normal combination therapy in the form of AVRs, therefore, we are satisfied that the Adjudicator was entitled to conclude the appellant would in fact be able to obtain proper treatment.

25. The only outstanding difficulty the appellant would face in respect of available medical treatment, therefore, relates to the prophylaxis she needs to prevent the onset of PCP.

26. At this point, however, we consider it is necessary to remind ourselves of the benchmarks set by the Court of Appeal in N. N was considered to have a life expectancy of less than twelve months. Depressing though the prognoses of Drs Meadway, Gompel and Professor Burnet are on the assumption that no prophylaxis regime is maintained, none suggest that this appellant's life expectancy in such circumstances would be similarly short.

27. We come back, therefore, to this simple fact. The Court of Appeal in N did not consider that her circumstances brought her within the category of an extreme and exceptional case. Notwithstanding the commendable care taken by all the medical experts who have given their valuable time to write reports and responses in this case, the medical evidence considered overall does not demonstrate that the appellant's case falls within the extreme and exceptional category.

28. Mr Jackson sought to argue that even if we were not persuaded to allow the appeal on Article 3 grounds, we should do so on Article 8 grounds. However, we would once again return to the view of the Court of Appeal in N that the facts of that case did not engage Article 8 in any specific way. We accept that in this case the appellant in addition to being HIV positive, suffers from PTSD. However, she failed to show that her psychological difficulties were related to her claimed fears of ill-treatment at the hands of the Mungiki sect and we see no basis in this case, therefore, for considering that return would significantly aggravate her PTSD condition, a condition for which she is currently being treated by way of antidepressant medication.

29. Even considering the appellant's physical and mental conditions cumulatively, therefore, we are not satisfied that return would pose a serious threat to her physical and moral integrity so far as to give rise to a breach either of Article 3 or her right to respect for private life under Article 8.

30. Our conclusion is that although the Adjudicator's determination contains some errors, these were not fundamental. Notwithstanding the considerable body of additional further evidence, including medical evidence, placed before the Tribunal, we have not been persuaded that the Adjudicator was wrong to dismiss the appeal.