PAULINE KINUTHIA v SECRETARY OF STATE FOR THE HOME DEPARTMENT [2001] EWCA Civ 2100

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE IMMIGRATION APPEAL TRIBUNAL
[2001] EWCA Civ 2100Case No C/2001/1123Venue Royal Courts of Justice, Strand, London WC2
Between
PAULINE KINUTHIAApplicantSECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant
Before
Lord Justice PillLord Justice TuckeyLord Justice Jonathan ParkerMR M HENDERSON (instructed by Hackney Legal Services) appeared on behalf of the AppellantMISS L GIOVANNETTI (instructed by Treasury Solicitor, London SW1H 9JS) appeared on behalf of the RespondentDate 18 December 2001

LORD JUSTICE PILL:

This

[1]is an application for permission to appeal, with appeal to follow if permission is granted, against a decision of the Immigration Appeal Tribunal, made on 23rd March 2001. We have granted permission on the only ground on which it is now sought and have heard arguments on the merits.[2]The appellant, Mrs Pauline Kinuthia, is a Kenyan citizen who travelled to the United Kingdom on 29th May 1999 and claimed asylum. Her claim was refused by the Secretary of State for the Home Department in a letter dated 14th February 2000. The Secretary of State also certified that the claim was one to which paragraph 5(3)(a) of schedule 2 to the Asylum and Immigration Act 1993 applied, and to which paragraph 5(5) did not apply. The appellant appealed to a special adjudicator. By a determination dated 16th August 2000 the appeal was dismissed. However the special adjudicator did not agree with the certificate so the appellant retained a right of recourse to the Immigration Appeal Tribunal. On 18th September to 2000 the Tribunal granted permission to appeal to itself. On 23rd March 2001, the appeal was, however, dismissed.[3]The ground of appeal on which permission has been granted is that the Tribunal erred in law in concluding that the risk of torture during detention did not entitle the appellant to refugee status because "recourse" would be available to her.[4]The appeal is to be resolved on a narrow point, and there is no need to set out the facts in great detail. When I say "narrow" I do not indicate that it lacks in importance. The Tribunal made a number of findings of fact. It found that the appellant had been a member of an illegal group or order in Kenya called the Mungiki. The Tribunal found that she had on four occasions in the period 1998 to 1999 been arrested and on each occasion was maltreated. The maltreatment was of a serious nature. In no case was she charged.[5]The Tribunal accepted the credibility of the appellant in the evidence she gave to them. However, they also held that if she insists on belonging to an illegal organisation she must take the consequences of that. They noted that the appellant had declared a desire to rejoin the order were she to return to Kenya. That was found both by the Tribunal and by the special adjudicator and it is common ground that the appeal should be determined on the basis that she was likely to rejoin upon her return. There was a further finding of fact that, if arrested, the appellant would have a fair trial in Kenya.[6]On a number of points the approach of the Tribunal has been different from that of the special adjudicator, and the findings of fact are in some respects different. It is common ground that this court should approach the case on the basis of the findings of fact and reasoning of the Tribunal.[7]I have referred to the single point now taken by the appellant. It has been succinctly stated by Mr Henderson on her behalf, and his oral submissions have been similarly succinct. He submits that the contents of paragraph 11 of the decision of the Tribunal reveal a misdirection in law. He submits that on the findings of the Tribunal, had they correctly directed themselves in law, there can only be one result, and that is one in the appellant's favour. Mr Henderson accordingly submits that there should be no remission to the Tribunal, but that the court should make a final finding in the appellant's favour.[8]Before considering the effect of paragraph 11, it is appropriate to consider other aspects of the Tribunal's "determination and reasons". They describe the Mungiki as an organisation wishing to retain the traditional tribal ways of the Kikuyu. They make a plain finding that the organisation is illegal in Kenya. In paragraph 9 they make a series of comments about Mungiki. I have to say that even with the help of Miss Giovannetti, who appears for the Secretary of State, and given the way she puts her case I am unable to see the relevance for present purposes of comment that the order rejects the principal religions of Africa, namely the Islamic, Hindu and Christian religions, along with the trappings of western culture. There is also comment that the order compels women to undergo the practice of female genital mutilation and the men to undergo circumcision.[9]I do not see the relevance to the present case of the tenets of the religion to which the appellant wishes to adhere. It may be that in making the adverse comments and the further comment that the tenets of the religion for which the religion stands are rejected by the majority of the world community, the Tribunal are merely underlining support for the decision of the Government of Kenya to make the order illegal. In considering whether there is persecution on Convention grounds, it does not appear to me relevant in the present case to consider the attitude of the adopted religion to other religions or what the international community may think of it. Mr Henderson does not seek to challenge the right of the Government of Kenya to declare the order illegal.[10]There are also references in the determination and reasons to the possibility of internal flight. It is common ground that, upon the findings of the Tribunal and their reasoning, the issue does not arise.[11]In order to qualify for asylum under the terms of the 1951 United Nations Convention relating to the status of refugees an applicant must show that he or she has a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion. While other points had been considered at earlier stages, Miss Giovannetti accepts that one cannot find in the decision or reasoning of the Tribunal any finding that, if the ground of appeal is made out, the treatment thereby found would not involve other than a serious possibility of persecution, or that the persecution was other than for a Convention reason. Rightly, in my judgment, Miss Giovannetti has not sought to argue either of those points.[12]The court has queried with her on what basis she submits the Convention breach, if established, is to be found. She refers to paragraph 8 of the reasons:
"Whether the appellant was therefore detained by the police because she was a Kikuyu or whether she was detained because she was a member of the Mungiki order, is debateable. We think it more likely than not that her detentions were a combination of both, the police finding her membership of the Mungiki an excuse to harass and persecute her by reason of the fact that she was a Kikuyu."
[13]The Tribunal have not reasoned the matter further and reference to race does not appear in the later paragraphs of their decision. As will appear, there are references to the Mungiki order in the paragraph complained of, but I repeat, Miss Giovannetti takes no point on the Convention reason being present. If Mr Henderson is correct in his construction of the paragraph and consequences of that, this court need not, Miss Giovannetti asserts, concern itself with whether the Convention reason is race or religion.[14]I turn, therefore, to paragraphs 10 and 11:
"This being so we consider that the adjudicator is correct in stating that if the appellant were to return to Kenya and cease to belong to the Mungiki order (it would appear that she no longer does in any event) she has nothing to fear, by implication, however, he goes on to say that if she insists on belonging to such an illegal organisation then she must take the consequences. This, so far as it goes, is correct except that if the consequences are lack of access to a fair trial and the risk of severe ill-treatment whilst detained pending trial, then clearly there is a firmer basis for the appellant's claim. 11. On the basis that the appellant is no longer a member of the Mungiki order, we cannot see that there is any reasonable likelihood of persecution were she to be returned to Nairobi. On the basis that it is her declared desire to rejoin the order were she to return, then we would find that if she were to be arrested she would receive a fair trial. The information before us would indicate that the judiciary, certainly so far as this organisation is concerned, would appear to be impartial. The Home Office report indicates that eighty-one members of the Mungiki order who were arrested were acquitted in March 1999 for lack of evidence. If she were to be maltreated whilst detained pending trial for belonging to this order, then again the information before us would indicate that there is recourse available to her. Human Rights organisations are clearly active in Kenya and the reports would indicate that abuse by the police or the army of their powers and authority results in prosecutions of those involved and in our view, therefore, there is sufficient evidence to show that the appellant would be protected were she to be abused whilst in prison pending trial for belonging to an illegal religious order."
[15]In an earlier paragraph the Tribunal had stated that they found themselves "in broad agreement with the principle behind what the adjudicator had found in paragraph 21 of his decision." That included the sentence:
"Her ill-treatment (if it occurred) cannot be condoned but I consider that there still remains protection and redress."
[16]Miss Giovannetti accepts that the decision which in her submissions she is seeking to uphold depends on the reasoning of the Tribunal and, that having been spelt out, it is not open to her to rely upon the somewhat different reasoning and findings of fact of the special adjudicator. They included a finding that:
"... if the appellant suffered illtreatment from the police it would be a matter of the inadequacies of the individual police officers rather than something motivated by the State."
[17]That issue has not been addressed by the Tribunal in its reasoning. The relevant reasoning is entirely contained in the paragraphs to which I have referred.[18]In my judgment there is such a danger of there being a misdirection in law in paragraphs 10 and 11 that the decision of the Tribunal cannot stand. They confront the possibility, as stated at the end of paragraph 10, that if the consequences are the risk of severe ill-treatment while detained pending trial then clearly there is a firmer basis for the appellant's appeal. It is common ground that if such a situation does exist, that would amount to persecution, and on the basis of Miss Giovannetti's submissions, would be persecution for a Convention reason.[19]Having stated that and the findings of fact to which I referred at the beginning of this judgment, the Tribunal state that if the appellant "were to be maltreated whilst detained pending trial for belonging to this order, then again the information before us would indicate that there is recourse available to her." Having referred to the activities of Human Rights organisations in Kenya the Tribunal concluded that the appellant:
"... would be protected were she to be abused whilst in prison pending trial..."
[20]In my judgment the ordinary reading of paragraph 11 is that the Tribunal have directed themselves that, provided recourse is available to the appellant for severe ill-treatment to her, that is a sufficient protection in Convention terms. I read the paragraph as drafted on the basis that there is a sufficiency of protection provided recourse and remedies for severe ill-treatment are available within the Kenyan legal and administrative system.[21]Miss Giovannetti submits that the court should read the paragraph as a whole. The familiar submission is made that the court should not take an over-literal approach to a paragraph, the general effect of which, she submits, is a finding that sufficient protection against severe ill-treatment exists. As I have said, I am not able to read the paragraph in that way. I am not able to read it as if it had said that there was no serious possibility of maltreatment while the appellant is in custody pending trial. Subsequent judicial action may be insufficient protection against maltreatment pending trial.[22]In my judgment this appeal must for that reason be allowed. Mr Henderson submits that this should now be the end of the matter, having regard to the lengthy sequence of proceedings which the appellant has had to undertake, and because on a true direction the decision must be in the appellant's favour. I am not able to accept that submission. The findings of fact are in my judgment, and with respect, far from clear. It is not clear what findings either were made or would apply upon the adoption of a correct legal direction.[23]Mr Henderson makes the further submission that, if the matter is to be remitted to the Tribunal, the Secretary of State should not be permitted to raise upon a rehearing issues as to the serious possibility of persecution on the assumption of serious possibility of severe illtreatment while detained, or the question whether there was a Convention reason for persecution.[24]While I see the force of that submission it would not, in my judgment, be correct to take the matter out of the hands of the Immigration Appeal Tribunal. I have regard to their decision, their reasoning and their comments to which I have referred. In my judgment a rehearing is required. I have no doubt that at any such rehearing the Secretary of State will approach the matter fairly with regard to the issues which have been raised. Equally I am confident that the Tribunal itself will do the same.[25]For the reasons I have given I would allow this appeal.

LORD JUSTICE TUCKEY: I agree. My problem with the Tribunal's reasons is that they do not make any finding as to whether the appellant faced a real risk of severe ill-treatment in custody. They simply say that if she were mistreated she would have a right of recourse. Recourse after mistreatment does not provide adequate protection.

[27]On this analysis it is not possible to decide the case ourselves. It has to be sent back to the Tribunal for rehearing.

LORD JUSTICE JONATHAN PARKER: I also agree. I too read paragraph 11 of the Immigration Appeal Tribunal decision as meaning that the availability of "recourse" after the appellant has been maltreated constitutes sufficient protection for Convention purposes. On that reading of the paragraph it seems to me that the Tribunal misdirected itself in law and for that reason its decision cannot stand. Accordingly, and for the reasons my Lords have given, I agree that the matter must be remitted for rehearing on the basis which Lord Justice Pill has indicated. (Appeal allowed with costs; costs to be subject to detailed assessment in respect of Community Legal Service funding).

Cited in 3 later judgments