Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/10398/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 17th November 2016
On 05th December 2016

Before

UPPER TRIBUNAL JUDGE RIMINGTON

Between

R M C
(aNONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Pipi, Direct Access
For the Respondent: Mr P Duffy, Senior Home Office Presenting Officer

DECISION AND REASONS
1. The appellant is a national of Kenya born on 24th November 1954 and is 61 years old. She appeals with permission against the decision of First-tier Tribunal Judge Malcolm who dismissed her appeal against the decision of the respondent dated 10th July 2015 refusing her claim for international protection.
2. The appellant asserted she was married in 1975 and in 1997 she learnt her husband had joined the Mungiki; he then became violent towards the family. In her statement the appellant detailed that her husband forced her to join the Mungiki although initially she was not required to undertake the initial ceremony. She claimed that she was threatened with death if she did not carry out the said orders properly. She claimed that she managed to escape one day, obtained a visit visa for the UK, arrived in the UK on 1st October 1999 and then claimed asylum which she promptly abandoned in January 2000 only to return to Kenya. On her return she was found by associates and taken back to the compound and was forced to undergo the initiation ceremony and circumcision. It was at this point she became a member of the Mungiki and performed FGM ceremony on new recruits. She persuaded her husband to allow her to visit the UK again in July 2003 to see sick relatives and she again returned to Kenya in 2003 and once again escaped the compound. She claims that she again was taken by the police and detained and imprisoned and beaten but again managed to escape, obtained a visit visa for the UK and left. That is the history and background of this account.
3. The challenge to the decision was based on various grounds asserting that the appellant was a Mungiki defector and would be persecuted on return to Kenya where there was no state protection for her.
4. It was argued that there were three issues in the appeal that the judge failed to address.
(1) Could a Mungiki member be allowed to leave the sect or will the person still be regarded as member or backslider even after he/she had left?
(2) In the alternative did the Immigration Judge consider what happened to Mungiki backsliders or defectors?
(3) In the alternative should the judge have considered her mental state as witnessed by the medical report.
5. In relation to Ground 1, it was argued that the judge had failed to consider whether the Appellant could leave the Mungiki and that once the oath was taken a person became a member for life as such she would be regarded as a backslider and subjected to severe persecution including murder. The judge effectively had failed to consider VM (FGM-risks-Mungiki-Kikuyu/Gikuyu) Kenya CG [2008] UKAIT 00049 and the Country of Origin Report 2013 specifically paragraph 3.17.11 and the Immigration and Refugee Board of Canada.
6. In relation to Ground 2 the question was whether the judge had considered what happened to defectors. The credibility findings did not affect the centrepiece of the appellant's case namely that as a defector or a backslider she would be persecuted on return.
7. Finally (Ground 3), it was alleged and asserted that the appellant was tortured and diagnosed as having PTSD type 2 and the Immigration Judge failed to say whether this evidence was accepted or rejected.
8. Mr Pipi asked to amend his grounds of appeal to include that the judge had applied the wrong standard of proof. He argued that the essential question of whether she was a defector or backslider had not been addressed. She had managed to escape when her husband had been effectively duped by her stating that she had obtained his permission. Of key importance was the judge had not addressed the medical evidence or her state of mind.
9. Mr Duffy submitted that there was a sufficiency of protection for the appellant and a possibility of relocation. The appellant had been able to leave Kenya on numerous occasions. He further submitted that VM was effectively on FGM and these were matters that were not before the judge. The judge was not expected to do his or her own research and VM was a red herring as it concentrated on FGM. Fear of Mungiki was not part of the ratio.
10. He disputed that the standard of proof was applied in error and that 'reasonably likely' was the reverse of 'highly unlikely'. The judge may have mixed the first and second escape, but if she had returned there would be internal relocation available.
11. Mr Duffy submitted that the decision should be looked at as a whole.
12. In conclusion, I take the last ground first. Although the judge at paragraph 94 stated in relation to the psychotherapy assistance that the appellant could access this through telephone that with respect is not quite the point of the report. The report as I understand it, asserted that the appellant suffered with post traumatic stress disorder as a result of her treatment and it was necessary therefore for the judge to apply the vulnerable witness guidelines specifically when considering matters of credibility. That does not appear to have been factored into the judge's determination. The judge accepted that she was a member of the Mungiki but did not accept the overall credibility of her account of her subsequent treatment. I can appreciate that the judge considered that the appellant had entered and re-entered the United Kingdom and did not claim asylum until 2015 but nonetheless the judge largely rejected the appellant's evidence in relation to her account and made adverse credibility findings [82]-[89] but needed to view the evidence of the appellant against the context and background of her mental state and further consider the appeal in the light of the medical evidence.
13. In essence a fact-finder must not reach his or her conclusion before surveying all the evidence relevant thereto Mibanga v SSHD [2005] EWCA Civ 367. I consider this to be an error of law.
14. In relation to the first two grounds, of key relevance is that the judge found at paragraphs 79 and 80 the following
"79. The Appellant has claimed that she is unable to return to Kenya due to her membership and association with the Mungiki, that she has in the past been imprisoned and ill-treated.
80. I accepted that the Appellant had been a member of the Mungiki."
15. The judge made detailed findings in relation to whether the appellant had escaped or not, but, as indicated by Mr Pipi made no assessment, having found that she was a member of the Mungiki, as to whether she would be considered to be a backslider or a defector and the treatment that she might receive on her return.
16. The judge makes a reference to the Operational Guidance Notes in December 2013 on Kenya and states that he or she considered that there was sufficient protection for the appellant in Kenya, but the judge makes no detailed assessment of that guidance in view of the acceptance that she had been a member of the Mungiki, and how the appellant would be perceived and treated on return. At paragraph 3.17.2 there is reference to gross human rights violations against citizens, adversaries and defecting members and further reference to the fact that the Kenyan authorities have not succeeded in their attempts to limit Mungiki's influences or abuses despite crackdowns which reportedly also included summary executions of suspected adherents. As Mr Duffy states VM refers to FGM but in fact does contain some evidence on the then power and reach of the Mungiki
17. Having found the appellant was a member of the Mungiki, the judge did not made any specific assessment or give adequate reasoning of whether the appellant would be at risk having defected from the Mungiki and the treatment of this particular appellant would receive, as a backslider or defector. The sufficiency of protection needed to be assessed in this light.
18. I do not accept the assertion that the judge applied the wrong standard of proof but I have noted that the medical evidence was not factored into the credibility findings and as such I set aside the findings of the judge in their entirety, including the finding that the appellant was a member of the Mungiki.
19. The Judge erred materially for the reasons identified. I set aside the decision pursuant to Section 12(2)(a) of the Tribunals Courts and Enforcement Act 2007 (TCE 2007). Bearing in mind the nature and extent of the findings to be made the matter should be remitted to the First-tier Tribunal under section 12(2) (b) (i) of the TCE 2007 and further to 7.2 (b) of the Presidential Practice Statement.
20. Owing to the nature and extent of the findings to be made by the First-tier Tribunal I therefore remit the matter to the First-tier Tribunal.

Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008

Unless and until a Tribunal or court directs otherwise, the appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of their family. This direction applies both to the appellant and to the respondent. Failure to comply with this direction could lead to contempt of court proceedings.

Signed Date 24th November 2016

Helen Rimington
Upper Tribunal Judge Rimington