Case No. CO/1356/2009 
Neutral Citation Number: [2009] EWHC 3821 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION 
THE ADMINISTRATIVE COURT 
Royal Courts of Justice 
Strand
London WC2A 2LL 

Date: Wednesday, 29 July 2009
 
B e f o r e: 

MR JUSTICE STADLEN
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Between: 
THE QUEEN ON THE APPLICATION OF MBUTHIA 
Claimant

v 

SECRETARY OF STATE FOR THE HOME DEPARTMENT 
Defendant 
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MR D CHIRICO appeared on behalf of the Claimant 
MR M BARNES appeared on behalf of the Defendant 
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J U D G M E N T 

1.	MR JUSTICE STADLEN:  This is a renewed application for permission to apply for judicial review.  The claimant is a homosexual who, it was accepted by the immigration judge who rejected his appeal in 2005, had been assaulted in a mob attack following people coming to know that he was homosexual.  That, according to his evidence, followed from the fact that, having lived and practised as a homosexual for a number of years in Kenya, he revealed to a woman who wished to have a relationship with him that he was homosexual and that woman disseminated that information more widely.   
2.	The immigration judge rejected the appeal.  Among other things, he held that the appellant could relocate safely to another part of Kenya and that he saw no reason why he could not safely relocate to a part of the country where he is not known, and he could carry on his homosexual activities discreetly without any repercussions.  
3.	There are in essence, it was found in the course of oral argument, two grounds which are relied on by the claimant.  Both ground are in support of the base submission that the Secretary of State acted wrongly and unlawfully in failing to conclude, despite rejecting his new representations, that there was a fresh claim which for these purposes materially requires evidence of a realistic prospect of success in front of another Tribunal, taken together with the old material and having regard to the new material.  The second ground relied on in relation to new material, in essence was said to have centred around the issue of discretion and the development of the law in that regard since the Tribunal.  What was said for the claimant was that it was in evidence before the Tribunal that the reason that the claimant had concealed his homosexuality was that a cousin of his, a practising homosexual, had been killed for his homosexuality and that explained why, prior to his revelation to a woman called Ruth, he had remained discreet and silent about his homosexuality.  
4.	It was said on his behalf by Mr Chirico that the Secretary of State acted unlawfully because he failed to have regard to or apply the decision of the Court of Appeal in J v the Secretary of State for the Home Department [2006] EWCA Civ 1238, paragraph 16, where Maurice Kay LJ said that: 
"A differently constituted Tribunal will have to address questions not considered on the last occasion, including the reason why the appellant opted for discretion before his departure from Iran, and by implication will do so again on return.  It will have to ask whether discretion is something the appellant can reasonably expected to tolerate, not only in the context of random sexual activity but in relation to matters following from and relevant to sexual identity in the wider sense recognised by the High Court of Australia.  This requires consideration of the fact that homosexuals living in a stable relationship will wish, as this appellant says, to live openly with each other and the discretion which they may feel constrained to exercise as the price to pay for the avoidance of condign punishment will require suppression in respect of many aspects of life that related to or are informed by their sexuality.  This is not simply generalisation, it is dealt with and will count as evidence".  
5.	What was said on behalf of the Secretary of State against that was that, as appears from the last sentence of that extract, that was a case in which the issue had been raised by the appellant's evidence and reliance was placed by the Secretary of State on two cases: the first was XY Irani v the Secretary of State for the Home Department [2008] EWCA Civ 911, paragraph 14, where Stanley Burnton LJ said: 
"It was for him to establish that he could not reasonably be expected to tolerate his condition if he were returned to Iran.  He did not establish or even assert facts on which such a finding could be based".  
6.	The appeal in that case was dismissed.  
7.	The second case was HJ Iran v the Secretary of State [2009] EWCA Civ 172, the decision of the Court of Appeal, where Pill LJ said in paragraph 44:
"There was a finding that HT would be discreet on return to Cameroon.  As in XY the groundwork for a further finding that HT should not reasonably be required to be discreet in the Cameroon was not established before the Tribunal.  As in XY, HT had not established or even asserted before the Tribunal, facts on which a finding that he could not reasonably be expected to tolerate a life involving discretion, if he returned to Cameroon, could be based." 
The appeal was dismissed in those cases as well.
8.	It seems to me clear from those two authorities that, in order to rely on the proposition that it may be that a breach of his rights giving rise to a right to asylum that a claimant would be required to be discreet, there must, at the very least, be an assertion to that effect, and there must be evidence.  It was submitted on behalf of the claimant that it was not reasonable for it to be held against him that he did not give such evidence at the Tribunal below because on the state of law as it then was it would not have availed him to show that it would be oppressive for him to require to be discreet.  On behalf of the Secretary of State, although that proposition of law was not accepted, it was accepted to this limited extent for present purposes, that it was not sought to be relied on as conclusive that he had not adduced such evidence at the Tribunal.  However, what was said for the Secretary of State as being conclusive was that he does not, before this court, assert it, and more particularly, does not adduce any evidence to that effect.  
9.	In my judgment, so far as ground 2 is concerned, that argument must be right.  The only evidence relied on in this context by the claimant is the fact that he gave evidence before the Tribunal that the reason he concealed his homosexuality prior to the Ruth incident was because of his fear of consequences following from the death of his cousin.  But it does not follow from that that he, either at the time, found that maintaining silence and discretion about his homosexuality was oppressive or such as to offend the principles identified by Maurice Kay LJ in the case of J, nor that that is in fact the position now were he to be returned.  In my judgment, as far as ground 2 is concerned, there simply is no factual platform to justify a conclusion, even on an arguable basis, that in relation to that aspect the Secretary of State erred in concluding that there was no realistic prospect of success by reference to the change of law, or the development of the law, on this aspect.  
10.	So far as ground 1 concerned, there is an expert report relied upon by the claimant, by Professor David Parkin FDA, a professor of social anthropology at the University of Oxford.  In essence, the Secretary of State concluded that the matters asserted in that report did not give rise to a realistic prospect of success in that there was no reference to sources in the report and no reference to objective materials to support the conclusions which the professor came to.  As against that submission, it was asserted on behalf of the claimant that the Secretary of State erred in discounting the professor's conclusions, because, as appears from the report, his conclusions are derived, so far as material, inter alia on his own research and experience and that that, in the context of a distinguished professor of social anthropology at the University of Oxford, is capable of being of sufficient weight to lead to a real prospect that an immigration judge would accept his conclusions.  
11.	In my judgment, subject to the content of the report being relevant and disclosing sufficient conclusions to, in themselves, if accepted by an immigration judge, leading to a different conclusion, is a legitimate complaint.  It therefore remains to consider whether there are any aspects of the content of the report which arguably, were they to be accepted by an immigration judge, might lead to a different result.  
12.	There are a number of aspects of the report which, in my judgment, do not go far enough, and indeed in some cases arguably operate in the opposite discretion, such, for example as his acceptance that the Secretary of State is right to make that: 
"Although fairly strong social pressure against individual instances of homosexuality such as from family members exist, it is not much of an issue in the public domain".
13.	More on the border line is his conclusion that, although he is not suggesting that there are many members of the public who translate their homophobia into direct assault on homosexuals, the attackers are certainly a minority but, as with soccer hooligans in the UK, they are of a sufficiently significant proportion to constitute a continuing threat to practising homosexuals.  
14.	What, in my judgment, crosses the line and constitutes material which, in my judgment, the Secretary of State, were it to be accepted by an immigration judge, would create a real prospect of success is his conclusion that in Kenyan societies the family and the wider public domain are co‑extensive in a manner foreign to the UK:  
"Pressure from within the family progressively becomes pressure in the extended family, the extended kinship and affinal network convents to the neighbourhood and wider community.  Discreet walls of silence simply do not exist in my experience.  For the same reason I can not see homosexuals practising homosexuality without it at some point becoming public knowledge, as in this case.  This goes counter to the respondent's views that discreet individuals are unlikely to face persecution.  Homosexuality is a practice that presupposes a network of willing partners, not all of whom can be trusted in a society where the practice is illegal and regarded as either a form of witch craft and Satanic or likely to be bring HIV aids.  Partners quarrel and split, and revenge through anonymous reports to the police and others are always possible".  
15.	Against this, it was said on behalf of the Secretary of State, first, that if this were true it is remarkable that there is no reference to that in the country guidance case of JS [2001] UKIAT 00007, and second, that there is no such indications in that country guidance case that it would really require something of greater weight than this to make it likely that an immigration judge would reject that country guidance.  
16.	In my judgment, it may very well be that the conclusions of the report, in particular this conclusion of the report, might be rejected by an immigration judge.  The forensic point can be taken, as it was in argument before me, that if this is right it means that every homosexual in Kenya is subject to persecution.  But that is not the issue with which I am concerned, the issue with which I am concerned is whether it is arguable for the purpose of permission being given that the claim may succeed for judicial review on the basis that the Secretary of State, having erred in discounting this report for lack of sources, may have been wrong in failing to conclude that this report would have a realistic prospect of persuading an immigration judge that its contents are true and that there is a real prospect of persecution upon return.  
17.	Not without some misgiving therefore, but in view of the critical nature of the danger to which this claimant would be exposed were his claim right, it seems to me that the right course is to grant him permission on ground 1 but not on ground 2.  That is the order I make.  
18.	Thank you both very much.  
19.	Can I just say that it is now ten to three, the estimate for this case was half an hour.  It has occupied the time of the court for nearly 3 hours.  Was the estimate given by counsel, or who gave this estimate? 
20.	MR CHIRICO:  My Lord, I do not think I have given an estimate, but I would have probably given an estimate of half an hour.  So if I did not do it I take the blame for it anyway.
21.	MR JUSTICE STADLEN:  Well, it plainly was a complete underestimate and a permissions list which has normally some 12 cases cannot possibly function where there is an underestimate.  So it really is important that on oral applications realistic time estimates are given.
22.	MR CHIRICO:  I apologise.
23.	MR JUSTICE STADLEN:  Thank you very much.