JA (Mungiki – not a religion) Kenya [2004] UKIAT 00266   	

	
IMMIGRATION APPEAL TRIBUNAL	
                                                                                                
Date of Hearing:     30 July  2004 
Date Signed:       200
Date Determination Notified:    22 September 2004     

	
	
Before:	

Mr C P Mather (Vice President)
Mr F T Jamieson
Mr A A Lloyd, JP
	
Between 									   	
SECRETARY OF STATE FOR THE HOME DEPARTMENT	
Appellant	
	
And	
	
Respondent	
	
For the Appellant:           	Mr R Holmes, Home Office Presenting Officer	
For the Respondent:      	Mr I Ali, Counsel, instructed by
Welfare Rights Advice	

DETERMINATION AND REASONS

1.	The respondent is a citizen of Kenya.   

2.	The appellant appeals, with permission, the determination of an Adjudicator, Mr H Sangha promulgated on 15 September 2003.    In that determination the Adjudicator allowed, on both asylum and human rights grounds, the respondent’s appeal from the appellant’s decision made on 23 November 2001 to issue directions of his removal to Kenya following the refusal of his asylum application.

3.	The respondent claimed that he was born and brought up in Kenya as a Christian but later joined the Mungiki.  We were told by Mr Ali that the respondent comes from a village called Naivasha where the nearest big town is Thika.   This is north east of Nairobi.  We will examine the nature of the Mungiki later.  Having joined them, after a year he felt that he no longer wished to follow their way of life and wanted to leave.   He did so, but in August 1999, was detained by them because they did not wish to him disclose their secrets. He had taken an oath not to do so. He was blindfolded and taken to a hut in a forest where he was interrogated and beaten with rubber whips.  He was put into a drum of cold and dirty water overnight in preparation for body piercing the next day.    During the night he managed to escape and run away. He reported the incident to the police but says they took no action.   Thereafter he went to another village and, in October 1999, was again detained by the Mungiki.   He claims that he was tortured.  The Adjudicator accepted that was the case.  He also said he received a head injury and was unconscious for a day.    He said he was detained until December 1999 when he was released having promised to follow their cult.    He was told it was his last chance to do what they wanted, otherwise they would kill him.    Following his release he went to Nairobi where he stayed with a friend and arranged to leave the country.    He remained there, in hiding, until 21 January 2000 when he left for the United Kingdom.  

4.	He is now known to be HIV positive.  Since arriving in the United Kingdom he has married a Sudanese woman who now has indefinite leave to remain. She only had exceptional leave at the time of the Adjudicator’s hearing.  She has three children, who are all Kenyan citizens.   The respondent says that he met this woman in June 2000 and claims to have married her in October 2002.    The Adjudicator accepted that. He also accepted that the respondent is unable to live with his wife because he has been assigned an address following the grant of temporary admission.  His wife is living at a separate address, some 15 minutes away by bus.  It is said that he visits her weekly but cannot go more often because he does not have enough money for the bus fare.  Both the respondent and his wife are dependent on social security, or NASS, benefits.    She visits him when the children are at school. He says he has a good relationship with her children.    She is also HIV positive.

5.	The Adjudicator made several findings which are now challenged by the appellant.   First, he found that the respondent had a well-founded fear of persecution at the hands of the Mungiki and that such persecution would be for a Convention reason – religion.    The grounds challenge the finding that the Mungiki are a religion.

6.	The second ground is that the Adjudicator erred in finding that the Kenyan government do not offer a sufficiency of protection against the Mungiki.   The second ground also challenges the finding that the respondent was arrested by the Mungiki on two occasions and detained by them for 3 months as perverse.    That second part of the ground was not pursued during the hearing before us.

7.	The third ground challenges the Adjudicator’s finding that it would be a breach of Article 3 ECHR to return the respondent  It asserts the Adjudicator quoted a doctor who a provided a report about the respondent’s HIV status and said in the report that it would be a breach of Article 3 to return the respondent.    The Adjudicator found that the respondent’s medical condition would cause the United Kingdom to breach the respondent’s rights under Article 2, 3 and 8 ECHR if it were to return him to Kenya.  It is asserted the Adjudicator was persuaded by the doctor’s express assertion that there would be a breach of Article 3.

8.	The basis of the respondent’s fear of persecution was said to be that he will suffer at the hands of the Mungiki for having abandoned them.   We will consider first whether or not, if that were true, it would be for a Convention reason.    The Adjudicator found that the respondent would not be persecuted because he was a member of a particular social group (because he was Kikuyu) but did accept that any persecution would be for reasons of religion.  

9.	The CIPU report (the copy we had was April 2003, but we were assured by both representatives that the April 2004 information is the same), deals with Mungiki under the heading “Religious Groups”.     It is the only group that is considered there specifically.   Paragraph 6.72 refers to the Mungiki as

“a small, controversial, cultural and political movement based in part on Kikuyu ethnic traditions, which espouses political views and cultural practices that are controversial in mainstream Kenyan society.   The number of Mungiki members is unknown, but the group draws a significant following from the unemployed and other marginalised segments of society”.

Although it is described in that paragraph as a sect, there is nothing in the section about any belief system.  We are hard pressed to know why the CIPU has dealt with Mungiki under ‘religion’ rather than the section on internal security issues.  At paragraph 6.76 the CIPU report, says this.  

“On 5 February 2003, assailants believed to belong to the Mungiki sect hacked a policeman to death and then burnt his body.     They then stopped a commuter bus, and robbed a (sic) crew and passengers of money and mobile phones, and then set the vehicle ablaze.    They then moved to Dandora Phase 1 where they ordered the driver of a Bus Track bus to stop.   They then ordered the passengers out and in the process robbed them”.  

10.	The US State Department report on International Religious Freedom published in October 2001, refers to the Mungiki only under a heading “Abuses of Religious Freedom”.    In that section it says:

“The government historically has been unsympathetic to tribal religious groups that have engendered protest movements.   The government frequently harassed and periodically arrested and detained members of the Mungiki, a small, controversial, cultural and political movement based in part of Kikuyu ethnic traditions which espouses political views and cultural practices that are controversial in mainstream Kenyan society.   Whilst religion may have played a role in the formation of the group, observers believe that it is not a key characteristic of the group.    The Mungiki do not adhere to any single religion and members are free to choose their own religion; the group includes Muslims and Christians.  The number of Mungiki members is unknown, but the group does have a significant following from the unemployed and other marginalised segments of society.     The debate over the right of the Mungiki to practice their cultural traditions and advance their political agenda is on-going”.

11.	The US State Department report on Human Rights which was before the Adjudicator, and published in 2003, reporting on 2002, has a section referring to the Mungiki at page 18 of 33.    Saying much the same as the CIPU and Religious Freedom Reports it goes on to say:

“However, many observers characterise the Mungiki as a vigilante group or gang because of the criminal activities of some of its members as well as their reported harassment and intimidation of residents in areas where the group is active”.

12.	A little further on it says:

“During the year certain elements of this group were supporting ruling party presidential aspirant Huru Kenyatta (although he has repudiated them) and no longer were viewed to be targets of government harassment.   In addition, the Mungiki were involved in or implicated in a number of violent attacks against political at ethnic rivals during the year”.

13.	The respondent in his witness statement, said that he changed his religion to Mungiki in 1999 because he was convinced by the followers that after he joined the cult he would go to heaven.   He said:

“They criticised the Christian religion and their beliefs by telling me Christianity is not real because it was brought by a white man who introduced the bible and Christian religion in order to come into the black man’s land and steal our wealth.   He told me that during the early days the Kikuyus did not read the bible and there were no churches.    They worshipped their god “Ngai” under a tree called Mgumo, slaughter goats as offerings under the tree when there was no rain and it could rain immediately. They did not wear the western clothes.  So they were able to convince me to join their religion after giving me a lot of reasons.

When I accepted, they started disclosing their beliefs and secrets to me.   First I had to take an oath if I left the sect I would be killed and I should not reveal the Mungiki secrets to a non-member unless he/she joins the cult.    I must never communicate with Christians.  As I wanted to join them I took the oath by eating uncooked meat mixed with blood.   I did not know the type of meat it was.   I had to smoke cannabis as a holy communion and I understood that our women followers are circumcised.   My ears were to be pierced and some parts of my body were to be tattooed.   Also, the cult believed in traditional medicine and would not allow any followers to go to hospital despite anyone had been really ill.

During my time with the Mungikis I was doctrined to disregard my Christian beliefs and follow their traditions.   I was taught that to wear Western clothes was wrong and I should have both ears pierced.   Some parts of my body were also tattooed.   After being in the cult for at least 1 year, in the whole of 1999, I was reluctant to do what I was supposed to do and I felt that I should return or rejoin my church.   This was the start of my problems because they wanted to punish me for trying to leave them and the leader and followers wanted me killed.

After I realised their evil things and evil beliefs were too much I was reluctant to follow what they had told me and I decided to rejoin my Christian ways”.       

14.	Given the apparent absence of any belief system, and bearing in mind the objective material that we have set out above, we are not satisfied that the Mungiki are a religious group. The US State Department does not appear to consider it a religious group and despite its position in the CIPU report, there is nothing there to establish Mungiki as a religion.    Rather they appear to be more properly described as a vigilante group or gang.    The Mungiki appear to admit those of various religions. It appears negative about other religions rather than positively asserting any belief system of its own.    We are not satisfied that any adverse attention from the Mungiki could properly be described as being for a Convention reason.   It was not argued that being a person who has left the Mungiki would amount to being part of a particular social group.

15.	The Adjudicator accepted what had happened to the respondent and, although one ground of appeal appears to attack that finding, the ground was not pursued before us.   The respondent has been the subject of adverse attention on two occasions since he left the group.   On the first occasion he was detained overnight and managed to escape.     He said he reported that to the police.   The Adjudicator, wrongly, says in paragraph 50 of the determination that the evidence showed that the respondent reported the incidents to the police.    Neither representative sought to suggest that the evidence was that he reported both incidents, only the first. The Adjudicator accepted the respondent gave two names to the police. Also, that he followed up his complaint by attending the police station to enquire as to progress but he was told only that they were looking into the matter.  In his witness statement he simply said:

	“I reported this incident to the police but no action was taken”.   

He said much the same at his interview.   In his earlier SEF statement he does not mention reporting the matter to the police at all.

16.	It is always difficult to know whether police ineffectiveness following  a complaint is because of inactivity on their part of because they have been unable to find the people concerned or lack supporting evidence.    Kenya has a significant internal security system.   Paragraph 6.74 of the CIPU report refers to scores of people being arrested during a major crackdown on members of the Mungiki in October 2002.  The local District Commissioner said that the operation would continue until the sect’s followers had been arrested, as their activities were illegal.   The US State Department Report, at page 18 of 33, refers to the government frequently harassing and periodically arresting and detaining members of the Mungiki.  It was put to us that the fact the respondent had reported his first detention to the police, and given information, but no action had been taken, demonstrated a lack of willingness to protect him.   We do not agree.   The burden of proof was on the respondent.   There is no evidence that the respondent followed up his complaint in any serious manner.    He may have called back at the police station on one occasion but there is no evidence that he has taken the matter up with more senior officers, either locally, or at District Commissioner level.    His evidence was that, shortly after his first detention, he moved to a village some 1½ to 2 hours away by bus.  He has not been in a position to follow his complaint up.    To report a matter on one occasion and then say no action has been taken, does not establish a lack of sufficiency of protection.     That is particularly so in the light of the evidence that the authorities are clearly willing to deal with Mungiki.    That they do so vigorously is illustrated by the objective evidence.   The Adjudicator accepted the respondent’s argument that the police were less likely to want to help him because he had been involved with the Mungiki.  That is one view.  On the other hand, if, as is apparent from the objective material, the police are interested in the Mungiki then to find a person who has been involved, and who may be able to give evidence and be a useful witness could arguably have the opposite effect.   The Adjudicator erred in law as there was no sufficient evidence to enable him to properly conclude that there is an insufficiency of protection available to the respondent from the authorities in Kenya. 

17.	In view of that finding we do not need to go on to consider the question of internal flight.  However, we will do as it was argued before us.   Mr Ali said the respondent had fled to a village that was, perhaps, 30 miles away and he had been found again.  That, he asserted, was a clear indication that he could not safely relocate elsewhere in Kenya.   Thirty miles is not a large distance, even in the bush, and certainly does not indicate that the whole of Kenya would be unsafe for the respondent.   The Mungiki are mainly Kikuyu and the Kikuyu do not occupy the whole of Kenya.   The large towns are populated by a mix of people. There was no evidence before the Adjudicator that the Mungiki are particularly organised.  Nor that they have intelligence systems or information to track down former members away from their own area.   Nor is there evidence that they operate in all the major town and cities.   The fact that they caught up with the respondent in a relatively nearby village is not enough to establish that he would not be safe throughout the whole of Kenya.   There is therefore no satisfactory evidence that he could not relocate from a safety point of view.  

18.	The Adjudicator made a finding in paragraph 51 that internal flight was not a possibility.   He said this:

“In relation to internal flight I note that the Mungkiki are based all over Kenya.   The evidence shows there are over  3 million members of the Mungiki sect.    The evidence also shows that the [respondent] tried to move away from his home area travelling some 1½ to 2 hours away but the Mungiki still managed to trace him.   In the light of the fact that the [respondent] had attempted to move away from his home area but was traced I find that it would be unduly harsh to expect him to relocate in Kenya.

That was not the correct conclusion to draw.   If the Adjudicator felt, on that evidence, that the respondent could not relocate it was not because it would be unduly harsh, it would be because he would not be able to escape the interest of the Mungkiki by doing so.    However, there is not sufficient evidence to establish that he would be unsafe throughout Kenya.  It is only if he could safely relocate that the question of undue harshness arises.   There is no evidence in support of the contention that it would be unduly harsh to expect the respondent to relocate elsewhere.   The finding that he could not relocate is unsound and was not open to the Adjudicator on the evidence before him.

19.	When considering the question of internal relocation we were taken to the case of Adhiambo [2002] UKIAT 03536.    In that appeal a female asylum seeker who expressed fear of the Mungiki was found not to have an internal relocation alternative that would not be unduly harsh.    That decision is not binding on us and is factually very different from this appeal.  That appellant was a lone female with a mixed race child.  Not only would she have encountered prejudice (because of her child) if she located to a different area but it would make her easily identifiable to the Mungkiki.   None of those considerations apply in the respondent’s case.

20.	Mr Ali conceded that, in so far as the respondent’s HIV status is concerned, he could not, on the evidence, satisfactorily defend the appeal.    The respondent, does not have AIDS.   There is no evidence of lack of treatment in Kenya such as to bring the case outside N [2003] EWCA Civ 1369.   He could not argue that the respondent’s case engages Article 3 or Article 8 in so far as that issue is concerned.    

21.	He did argue that the appeal should be dismissed in relation to all aspects of the rights protected by Article 8.   The Adjudicator declined to allow the appellant’s wife to give evidence.    This was because no witness statement had been produced, in breach of the directions and rules.  He also declined to adjourn the case so that a witness statement could be produced.    In doing so he said that the evidence which the respondent wished to adduce through his wife, could be given by him.  That evidence was that he was married and his wife has exceptional leave to remain.   The Adjudicator  accepted that the respondent is now married.   Mr Ali argued that the Adjudicator was wrong to exclude that evidence.   We do not agree that he was wrong.  We asked whether a statement had subsequently been prepared and submitted to the Tribunal with a request that the new evidence should be admitted or any application made for the respondent’s wife be allowed to give evidence before us.  Neither had been.  The respondent was on notice, because he was well aware that the Adjudicator had declined to accept such evidence, that if he wished this evidence to be considered he needed to produce a statement and comply with Rule 21 of the Immigration and Asylum Appeals (Procedures) Rules 2003.    In reality he would probably not have succeeded in getting the evidence admitted because of the principles in Ladd v Marshall (1954 1 WLR 1489) and E [2003] EWCA CIV 49.  (see also MD (Sri Lanka) 2004 UKIAT 00161 which deals with fresh evidence.)  We were not in a position to decide whether the evidence would have made a material difference to the outcome of the appeal.

22.	Mr Ali argued that when looking at whether it would be a disproportionate breach of the respondent’s Article 8 rights to return him, we should look at matters cumulatively.   The respondent’s wife now has indefinite leave to remain.   It was argued that she could not therefore go to Kenya.    That is wrong.  Indefinite leave to remain entitles somebody to stay in the United Kingdom but does not require them to stay.  It is entirely matter for the respondent and his wife whether she decides to accompany him.     The other factors we were asked to consider were that they are both HIV positive; that the respondent has been here for 4½ years, that the relationship is over 4 years old and there are her children.

23.	We have had regard to the Tribunal’s starred decision in M (Croatia) [2004] UKIAT 00024 and cannot find that there is anything truly exceptional about this case.  When they married, both the respondent and his wife were aware of his precarious immigration status, and it is clear from Mahmood [2001] INLR 1 that parties to a marriage are not entitled to choose where they live in such circumstances.   The length of the relationship is immaterial because they could go to Kenya together.  There is no sufficient evidence that the health aspects are such as to entitle them to the protection of the Convention.   The fact that they both have similar problems does not affect our view. 

24.	Because the respondent’s wife now has indefinite leave to remain, the respondent can apply for entry clearance as her spouse.   It is well known that the possibility of an application for entry clearance being rejected, because it does not comply with the rules, is not an argument against requiring a person to go abroad to make an application.  It is particularly important, in the circumstances of this case, that such an application should be made because the parties are not living together. Enquiries will need to be made by an Entry Clearance Officer as to whether the marriage is still subsisting and as to the other provisions of paragraph 281 of HC395 can be complied with. It would not be a disproportionate breach of the respondent’s Article 8 right to family life to require him to return to Kenya and make an application for entry clearance from there.  In concluding that it would not be a disproportionate breach to return him to Kenya (other than to apply for entry clearance consideration) we took into account that there is no evidence that the respondent’s wife would not be allowed to enter Kenya.  We also noted that her three children by a previous relationship have Kenyan citizenship.    

25.	In summary, any fear of the Mungiki is not for a Convention reason.  The Adjudicator was wrong in law to find that it was, there is no sufficient evidence to support that finding.  

26.	Also, the Adjudicator was wrong in law to find that there is an inadequacy of protection.     There is no satisfactory objective evidence to support that finding.  The same applies to the Adjudicator’s finding that it would be unduly harsh to expect the respondent to relocate or that he could not relocate safely anywhere in Kenya. The respondent’s representative did not seek to argue that his HIV status engages the Convention.   We have dealt in detail with Article 8.      

27.	In all the circumstances, the Adjudicator’s determination is unsustainable.  The respondent has failed to establish that he would be at real risk of persecution or mistreatment on the basis of a breach of his Article 3 rights if he were to return to Kenya.   He has also failed to establish that it would be either a breach of his rights under Article 8, or that such a breach would be disproportionate, if he were to be returned to Kenya.

28.	The Secretary of State’s appeal is allowed.		

									C P Mather
									Vice President

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Kenya/Mungiki/not a relgion