MM v Secretary of State for the Home Department: tribunal allows Kenyan lesbian's asylum appeal

A First-tier Tribunal has allowed the asylum appeal of a Kenyan national, identified only as MM, after accepting her account of persecution by her family on discovering she is a lesbian, and finding that internal relocation within Kenya would not be reasonable.

The decision, promulgated on 11 September 2026 following a hearing at Hatton Cross, was handed down by First-tier Tribunal Judge Seelhoff. MM had appealed against the Secretary of State's refusal, dated 18 July 2025, of a protection claim made in November 2024. The Respondent did not accept MM's account of her family discovering her sexuality, and argued in the alternative that there was no general risk to lesbians in Kenya and that she could relocate. A separate claim that MM had been trafficked to Qatar before reaching the UK was not material to the issues before the tribunal.

Before turning to the substantive issues, the judge noted that MM's witness statement did not comply with the tribunal's November 2024 practice direction, which requires a specific statement of truth declaration under paragraph 8.11. The judge observed that this requirement had been in place for nearly two years and that there was no good reason for the non-compliance, though the appeal proceeded on the basis of the evidence submitted. MM was treated as a vulnerable witness throughout, in line with the Joint Presidential Guidance Note and the Equal Treatment Bench Book.

Applying the two-stage test under section 32 of the Nationality and Borders Act 2022, as set out in JCK (s.32 NABA 2022) Botswana [2024] UKUT 00100, the judge found MM's account credible. She accepted that MM's expulsion from school in 2019 after being found in an intimate relationship with a classmate had become known locally without necessarily reaching her extended family, and that her father's more forceful reaction to her refusal of an arranged marriage in 2022 was consistent rather than inconsistent with the earlier, less severe response. Although the judge was bound to treat MM's delay in claiming asylum as damaging to her credibility under section 8 of the 2004 Act, this did not outweigh the consistency of her account with the Secretary of State's own Country Policy and Information Note on sexual orientation and gender identity in Kenya, which records widespread hostility towards LGBTQ+ individuals and a general unwillingness by the authorities to intervene.

On relocation, the Secretary of State pointed to Nairobi, where MM had already been living, and Nyanza, arguing that her father lacked the influence to locate her there. The judge accepted there was little practical risk of her being traced to either location but found that MM could not reasonably be expected to relocate while concealing her sexuality. Applying the principle in HJ (Iran) [2010] UKSC 31, the judge held that any decision by MM not to live openly as a lesbian would stem from fear of persecution rather than choice, and noted the CPIN's own acknowledgement that LGBTQ+ individuals in Kenya rely on hidden social spaces and face discrimination in employment and healthcare. Taken together, these practical obstacles rendered relocation unreasonable.

The Article 8 grounds, concerning obstacles to integration and proportionality, were found to be academic once the asylum claim succeeded, since neither would have been made out on facts independent of the core protection claim.

The appeal was allowed on asylum grounds, with the existing anonymity order maintained and no fee award made, no fee having been paid.