The legal and witty tricks Kenyans use to seek UK asylum

From citing tribal strife, poor state of prisons and risk of sudden violent death, Kenyans are pulling all stops to obtain political asylums in a foreign land.

There is no let up in Kenyans’ determination to seek greener pastures as a recent case of a Kenyan who is wanted by the police over criminal allegations has demonstrated.

The man earned asylum after successful appeal on grounds that Kenya would not hold him in a single cell if extradited. He cited the case of a suspect who had been extradited on assurances that he would be held in a single cell only to be lumped together with other suspects in Kamiti Maximum Prison.

In the appeal by the suspect born in Kenya on March 23, 1965 against the UK First-tier Tribunal, he arrived in the UK in 2009 and applied for a visa as a spouse in 2010, an application that was rejected by the immigration authorities.

The suspect, against whom Kenyan authorities have made two extradition requests to the UK, was served with a notice that he was illegally in that country.

Criminal proceedings

His efforts to fight the extradition orders issued by the court failed in 2015 and he applied for asylum in 2016, claiming that criminal proceedings against him in Kenya were politically motivated by the fact that he was a Kenyan with Indian roots and a supporter of an opposition leader.

In November last year, the Tribunal dismissed his application on the grounds that the Judge was not satisfied that he was at risk of persecution for being a Kenyan with Indian roots or that the criminal case against him was politically motivated.

The man appealed on grounds that the judge erred in contradicting her judgment based on Article 3 of the UK Human Rights Act that prevents the foreign country from deporting or extraditing a person to another country where he would face real risk of being tortured or subjected to inhuman or degrading treatment.

On February 21, the deputy Upper Tribunal Judge HJE Latter ruled that the First-tire Tribunal erred in dismissing the suspect’s argument that the Kenyan authorities were not going to hold him in a single cell.

Justice Latter said the decision to dismiss the cell issue was inconsistent with the tribunal’s findings that there had been a breach of the assurances given by the Kenyan authorities in relation to another case when an extradited suspect was held in a cell along with 11 people instead of being alone.

“The First-tier Tribunal erred in law and the decision is set aside,” Judge Latter said.

In another case, Deputy Upper Tribunal Judge Rory O’Ryan dismissed an appeal by a Kenyan woman who went to the UK in 2000, on the grounds that she failed to demonstrate that she lacked ties to Kenya.

Since then, the woman, identified as MLWS has made several asylum applications to the UK’s Secretary of State for the Home Department.

The latest application was made on December 6, 2017, but the Home Department disputed her identity after she claimed to be a Sudanese and Somali in some of her applications.

In her 2017 application, she claimed to fear serious harm on return to Kenya due to persons that took her to the UK, her sexuality and her alleged past political activity.

First-tier Tribunal Judge Kim Foudy ruled that even if her account of political activities, arrest, torture and trafficking are incredible, she may still require international protection on the basis of her sexuality.

“Not only has she used multiple identities in the UK, but she has claimed three different nationalities,” the judge said, adding that the Home Department should make further inquiries to ascertain the true nationality of the woman and to remove her to her country of origin.

She was allowed to appeal the decision on November 7 and on February 10, Judge O’Ryan dismissed the application.

In another case, The UK Secretary of State’s office failed to have a woman who fled Kenya after her husband joined the outlawed Mungiki sect, deported. The Upper Tribunal allowed the woman (only identified as MN) whose husband joined the outlawed Mungiki to stay in the UK on human rights grounds.

Justice Rintoul ruled on October 17, 2018, that removing MN from UK would be in breach of Article 3 of the Human Rights Convention given that she is a refugee.

Present risk of suicide

“Given also the ruthlessness within which they operate and their ability to gather information about people, I conclude that there is still a reasonable likelihood, first of the appellant’s return to Kenya becoming known despite where she goes given the Mungiki are active across the whole territory as is their information gathering network. There is, therefore, a real risk that she would be subjected again to the level of ill-treatment she was subjected to in the past if not worse,” the judge said.

MN is said to have fled to the UK in 2000 after she was forced to undergo FGM as a requirement for joining the sect.

In the documents at the tribunal, MN says she was badly treated by the sect and her efforts to get assistance from the local police failed.

“Her current fear is that she would not be safe if returned to Kenya as the Mungiki which is still able to kill people, will track her down and it was also said that she presents a real present risk of suicide, were she forced to return to Kenya,” read part of the documents.

The First-tier Tribunal had accepted her credibility having taken into account various reports that confirmed Mungiki seeks to impose FGM and other forms of violence on women and children other than those already initiated into the sect.

However, the Secretary of State did not accept her narrative and told the tribunal in its appeal that Mungiki was no longer a threat to the woman.

Matters arising from the 2007-2008 Post-Election Violence (PEV) have also been used by some Kenyans to apply for asylum in the UK.

For instance, a man identified by the tribunal as MNW claimed he faces a risk to his life from the Kenyan authorities because of comments he made in public on April 23, 2016, about the involvement of the police, Mungiki and MPs in the skirmishes in Naivasha in 2008.

He claimed to have received a letter ordering him to report to the police station within 24 hours but on arrival at the station, he was bundled in a police vehicle and driven to a forest by three officers, whose intention was to kill him.

MNW claimed to have escaped from his captors and hid in a cave. He came into contact with a group of men who took him to a nearby town where he booked into a hotel and called his wife who stayed with him at different hotels.

He organised for a meeting with activist Jacob Juma but he was killed before the meeting, a development that forced him to run from Kenya.

MNW said his children were able to avoid the police at the airport with the assistance of his brother-in-law, a baggage handler at the airport, who, inter alia, enabled them to use the staff entrance. He smuggled them inside Jomo Kenyatta International Airport (JKIA) and checked them in.

However, the Secretary of State for the Home Department rejected his application for asylum on March 7, 2017, forcing him to lodge an appeal at the First-tier Tribunal.

Justice Paul Housego did not find his claims credible because of inconsistencies in his story on how he escaped from the police officers who intended to kill him.

Aggrieved by the decision to dismiss his appeal, he filed an application before the Upper Tribunal, saying the judge erred in dismissing his claim on the basis of lack of corroborative evidence.

Dismissing the appeal, Judge Rutherford Sheridan, the Deputy of Upper Tribunal said Justice Housego did not make any material error of law and his decision stands.

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