M v Immigration Appeal Tribunal, Court of Appeal - Civil Division, June 15, 2005, [2005] EWCA Civ 820

Resolution Date:June 15, 2005
Issuing Organization:Civil Division
Actores:M v Immigration Appeal Tribunal
 
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SMITH BERNAL WORDWAVE

C4/2005/0381

Neutral Citation Number: [2005] EWCA Civ 820

IN THE SUPREME COURT OF JUDICATURE

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT

(MR JUSTICE HENRIQUES)

Royal Courts of Justice

Strand

London, WC2

Wednesday, 15th June 2005

B E F O R E:

LADY JUSTICE ARDEN

LORD JUSTICE KEENE

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M

Applicant/Claimant

-v-

IMMIGRATION APPEAL TRIBUNAL

Respondent/Defendant

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(Computer-Aided Transcript of the Stenograph Notes of

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MS WEBBER (instructed by PATTERSON SEBASTIAN & CO) appeared on behalf of the Appellant

THE REPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED

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J U D G M E N T

  1. LADY JUSTICE ARDEN: This is a renewed application for permission to appeal from the order of Henriques J dated 10 February 2005, dismissing the appellant's application for judicial review for refusal of the Immigration Appeal Tribunal, dated 9th January 2002, to give permission to appeal from the decision of the adjudicator, dismissing his claim for asylum.

  2. The appellant is a homosexual by orientation and he had a partner, Mr Waitutu, who was lynched and killed by a mob in his village in April 1999. The appellant then fled his village and stayed with his uncle and ultimately fled Kenya and entered the United Kingdom. The adjudicator was satisfied that the appellant had a well-founded fear of serious harm for a Convention reason of membership of a particular social group and he held that there was in general a sufficiency of protection, but with relevance to the particular circumstances of the appellant that there was not a sufficiency of protection. This last conclusion was based on the Kenyan Penal Code, which outlaws homosexual behaviour toward men. Moreover, the police were not helpful to the appellant when he reported the death of Mr Waitutu, and the police did not respond to the appellant's request for protection. For those reasons, the adjudicator held that there was not a sufficiency of protection for the appellant in the light of his own particular circumstances.

  3. I should say the adjudicator also said that, while homosexual conduct was criminalised in Kenya, it did not lead to prosecution unless there was some other offence involved. That appears at paragraph 16 of the adjudicator's decision.

  4. The adjudicator then considered whether there were other areas in Kenya in which the appellant could safely live and concluded that the appellant did not have a well-founded fear of persecution in other parts of Kenya (see paragraph 30 of adjudicator's decision):

    "I find that the appellant does not have a well-founded fear of persecution in other parts of Kenya. I now provide my reasons. First, I...

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