Women and children claiming asylum in the United Kingdom who fear return to their countries of origin on the basis that they will be subjected to Female Genital Mutilation (FGM) may be a member of a particular social group for the purposes of the 1951 Refugee Convention.
Read more on what the UK government’s stance on the practice and how it is dealt with where an asylum seeker raises the convention reason.
The UK government’s stance on the practice in the UK and globally has just very recently been re-confirmed. The UK Government announced on 11 October 2014 new funding for female genital mutilation and forced marriage to help eradicate the practice. The funding of £330,000 was announced to coincide to mark International Day of the Girl (11 October 2014). Funding is intended to be used to extend a number of projects that provide expertise and support services in some of the most risk areas of the country to help eradicate the practice. The Minister for Women and Equalities, Nicky Morgan said: “All women, whether young or old, have the right to live their life free from violence without being forced into marriage or experiencing the lifelong physical and psychological effects of female genital mutilation. These horrific practices are a violation of the rights of girls and women across the world, including here in the UK. This funding will offer much needed further support and guidance to those at risk or surviving, whilst reinforcing to communities that this practice will not be tolerated……. ..Female genital mutilation is an extreme form of violence against women and girls. It is a human rights violation and can have lifelong impact on survivors’ physical and psychological health…….125 million women worldwide are estimated to be living with the consequences of female genital mutilation and 30million girls are at risk in Africa alone over the next decade. The vast majority of practicing communities are in 29 African countries, with 74% of women aged 15 to 49 in Ethiopia having been cut, 88% in Sierra Leone, and 98% in Somalia”.
Reuters UK reported on 11 October 2014;
“Africa can end female genital mutilation (FGM) in 20 years, activists said on Friday as they launched a continent-wide campaign, calling the ancient ritual a form of child abuse aimed at controlling women’s sexuality… FGM is child abuse”, said Leyla Hussein, a British FGM survivor of Somali origin. It is one of the worst forms of violence a woman or a girl will ever experience. As FGM is traditionally performed without anesthetic, elderly women sometimes have to sit on the writhing girls, breaking their bones, said Guyo Jaldesa, an obstetrician and lecturer at the University of Nairobi. It is done for one simple reason: to subjugate women”, he said. It’s actually a way of controlling women, their sexuality, their mentality, their behavior.-” http://uk.reuters.com/article/2014/10/10/us-foundation-africa-fgm-idUKKCN0HZ1J920141010 -Article: Africa Can End “child abuse” of FGM by 2035.
As regards the practice of FGM there is further clarification from the World Health Organisation(WHO), Fact Sheet No. 241 – Female Genital Mutilation updated on February 2014, “….. The procedure has no health benefits for girls and women…. More than 125million girls and women alive today have been cut in the 29 countries in Africa and Middle East where FGM is concentrated. FGM is mostly carried out on young girls sometime between infancy and age 15. FGM is a violation of the human rights of girls and women…. FGM is recognized internationally as a violation of the human rights of girls and women……. It reflects deep-rooted inequality between the sexes, and constitutes an extreme form of discrimination against women. It is nearly always carried out on minors and is a violation of the rights of children. The practice also violates a person’s rights to health, security and physical integrity, the right to be free from torture and cruel, inhuman or degrading treatment, and the right to life when the procedure results in death…. The practice is most common in the western, eastern, and north-eastern regions of Africa, in some countries in Asia and the Middle East, and among migrants from these areas…”
Despite the UK Government’s position as regards expressed intentions to seek to eradicate the practice of FGM, having regard to the law applied in practice to those who seek to claim protection here in the UK, it is clear that it is not enough to simply claim asylum and show that a claimant originates from a country where there is risk of subjection to FGM and expect that they should therefore be granted refugee protection in the UK. Having regard to the issues and considerations set out below as to how the Home Office, the Upper Tribunal and higher Courts in the UK undertake decisions of claims based on FGM, it may be more than clear that it can sometimes be difficult for an asylum claimant to successfully obtain refugee protection in the UK on the basis of FGM as there are several considerations which would need to be taken.
RELEVANT LAW
The Refugee 1951 Refugee Convention and 1967 Protocol provides:
“Article 1
DEFINITION OF THE TERM “REFUGEE”
A. For the purposes of the present Convention, the term “refugee” shall apply
to any person who :
(1) ………………..
(2) ……………………….owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country ; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it”.
Also relevant as matter of EU law is The Qualification Directive 2004/83/EC of 29 April 2004 (on Minimum Standards for the Qualification and status of Third Country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted).
The Qualification 2011/95/EU Directive (recast) had a deadline of 21 December 2013 for transposition i.e. a requirement for member states to bring into force the laws, regulations and administrative provisions necessary to comply with the recast Directive. The recast Directive was adopted in December 2013 and is binding on all Member States except for the UK, Denmark and Ireland who have opted out, however Ireland and the UK remain bound by the previous 2004 Directive.
The 2004 Qualification Directive provides relevantly:
“20) It is necessary, when assessing applications from minors for international protection, that Member States should have regard to child-specific forms of persecution
“21) It is equally necessary to introduce a common concept of the persecution ground ‘membership of a particular social group’.
Article 2
Definitions
For the purposes of this Directive:
(a) ‘international protection’ means the refugee and subsidiary protection status as defined in (d) and (f);
(b) ‘Geneva Convention’ means the Convention relating to the status of refugees done at Geneva on 28 July 1951, as amended by the New York Protocol of 31 January 1967;
(c) ‘refugee’ means a third country national who, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, political opinion or membership of a particular social group, is outside the country of nationality and is unable or, owing to such fear, is unwilling to avail himself or herself of the protection of that country, or a stateless person, who, being outside of the country of former habitual residence for the same reasons as mentioned above, is unable or, owing to such fear, unwilling to return to it, and to whom Article 12 does not apply;
Article 9
Acts of persecution
1. Acts of persecution within the meaning of article 1 A of the Geneva Convention must:
(a) be sufficiently serious by their nature or repetition as to constitute a severe violation of basic human rights, in particular the rights from which derogation cannot be made under Article 15(2) of the European Convention for the Protection of Human Rights and Fundamental Freedoms; or
(b) be an accumulation of various measures, including violations of human rights which is sufficiently severe as to affect an individual in a similar manner as mentioned in (a).
2. Acts of persecution as qualified in paragraph 1, can, inter alia, take the form of:
(a) acts of physical or mental violence, including acts of sexual violence;
…………………………
(f) acts of a gender-specific or child-specific nature.
Article 10
Reasons for persecution
1. Member States shall take the following elements into account when assessing the reasons for persecution:
…………………..
(d) a group shall be considered to form a particular social group where in particular:
— members of that group share an innate characteristic, or a common background that cannot be changed, or share a characteristic or belief that is so fundamental to identity or conscience that a person should not be forced to renounce it, and
— that group has a distinct identity in the relevant country, because it is perceived as being different by the surrounding society;
depending on the circumstances in the country of origin, a particular social group might include a group based on a common characteristic of sexual orientation. Sexual orientation cannot be understood to include acts considered to be criminal in accordance with national law of the Member States: Gender related aspects might be considered, without by themselves alone creating a presumption for the applicability of this Article;
…………………………..”
Article 20
General rules
1. This Chapter shall be without prejudice to the rights laid down in the Geneva Convention.
2. This Chapter shall apply both to refugees and persons eligible for subsidiary protection unless otherwise indicated.
3. When implementing this Chapter, Member States shall take into account the specific situation of vulnerable persons such as minors, unaccompanied minors, disabled people, elderly people, pregnant women, single parents with minor children and persons who have been subjected to torture, rape or other serious forms of psychological, physical or sexual violence.
4. Paragraph 3 shall apply only to persons found to have special needs after an individual evaluation of their situation.
5. The best interest of the child shall be a primary consideration for Member States when implementing the provisions of this Chapter that involve minors”.
The Refugee of Persons in Need of International Protection(Qualification) Regulations 2006 No 2525, together with amendments to the Immigration Rules (HC 395) in part implement Council Directive 2004/83/EC of 29th April 2004, however the Explanatory Notes to the Regulations state that many parts of the Directive do not require implementation as consistent provision is already made in existing domestic legislation.
The Borders, Citizenship and Immigration Act 2009 provides:
Section 55 “Duty regarding the welfare of children:
(1) The Secretary of State must make arrangements for ensuring that—
(a) the functions mentioned in subsection (2) are discharged having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom, and
(b) any services provided by another person pursuant to arrangements which are made by the Secretary of State and relate to the discharge of a function mentioned in subsection (2) are provided having regard to that need.
(2) The functions referred to in subsection (1) are—
(a) any function of the Secretary of State in relation to immigration, asylum or nationality;
(b) any function conferred by or by virtue of the Immigration Acts on an immigration officer;
(c) any general customs function of the Secretary of State;
(d) any customs function conferred on a designated customs official.
(3) A person exercising any of those functions must, in exercising the function, have regard to any guidance given to the person by the Secretary of State for the purpose of subsection (1).
(4) The Director of Border Revenue must make arrangements for ensuring that—
(a) the Director’s functions are discharged having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom, and
(b) any services provided by another person pursuant to arrangements made by the Director in the discharge of such a function are provided having regard to that need.
(5) A person exercising a function of the Director of Border Revenue must, in exercising the function, have regard to any guidance given to the person by the Secretary of State for the purpose of subsection (4).
(6) In this section—
“children” means persons who are under the age of 18;
“customs function”, “designated customs official” and “general customs function” have the meanings given by Part 1.
(7) A reference in an enactment (other than this Act) to the Immigration Acts includes a reference to this section.
(8) Section 21 of the UK Borders Act 2007 (c. 30) (children) ceases to have effect”.
RELEVANT CASELAW- PARTICULAR SOCIAL GROUP
The leading domestic authority is the decision of the House in R v Immigration Appeal Tribunal, Ex p Shah and Islam [1999] 2 AC 629. The House of Lords decided that discrimination against women and a refusal to protect them against domestic violence, could make them a social grouping, and therefore two women facing accusations of adultery, which might lead to their being stoned to death if returned to their home country, were properly found to be refugees. Each claim to refugee status case must always depend on the evidence. Lord Hoffmann said: ‘The concept of discrimination in matters affecting fundamental rights and freedoms is central to an understanding of the Convention. It is concerned not with all cases of persecution, even if they involve denials of human rights, but with persecution which is based on discrimination. And in the context of a human rights instrument, discrimination means making distinctions which principles of fundamental human rights regard as inconsistent with the right of every human being to equal treatment and respect.’ and ‘ Discrimination against women in matters of fundamental human rights on the ground that they are women is plainly in pari materiae with discrimination on grounds of race. It offends against their rights as human beings to equal treatment and respect.’ In general, there can only be a ‘particular social group’ if that group exists independently of the persecution alleged. (summary from www.swarb.co.uk)
Fornah v Secretary of State for the Home Department 2007 UKHL 46 -The claimants sought asylum, fearing persecution as members of a social group. The fear of persecution had been found to be well founded, but that persecution was seen not to arise from membership of a particular social group. Held: The appeals succeeded. In order to found such a social group, the connection between the members of the claimed group had to be something greater than the fact of persecution, and had to be a characteristic relating to some more fundamental characteristic of identity. In the case of K, the adjudicator had been entitled to find as a fact that the claimant was persecuted as a member of a social group, his family. Fornah was a woman who if returned to Sierra Leone risked female genital mutilation. It was not difficult in such circumstances to classify women as a social group. That did not cease to be a group because once the mutilation was complete the risk disappeared( summary from www.swarb.co.uk).
HOME OFFICE OPERATIONAL GUIDANCE NOTES (OGN) – APPLICATION OF THE GUIDANCE TO SOME COUNTRIES WHERE FGM IS PREVALANT
The Home Office use country information and guidance reports to make decisions in asylum and human rights claims.
Set out below are different operational guidance notes as they relate to different countries which set out how Home Office decision -makers should consider and make decisions on asylum claims and regard will therefore be laid here only to some of their guidance in relation to FGM claims:
ERITREA OGN v14.0 February 2014 provides:
“3.17.14 “The law prohibits FGM. According to reliable sources, the practice of FGM/C has been largely eliminated in urban areas through government educational campaigns, but FGM continued among some of the rural population. In lowland areas, infibulations—the most severe form of FGM —was practiced. The government and other organizations, including the NUEW and the National Union of Eritrean Youth and Students, continued to sponsor a variety of education programs that discouraged the practice”.
3.17.15 The Report of the United Nations Special Rapporteur on the situation of human rights in Eritrea notes “The promulgation of proclamation No. 158/2007 to ban female genital mutilation/cutting and subsequent advocacy against the practice has resulted in the decrease in the practice, especially in girls under 15 (from 95 per cent in 1995 to 83 per cent in 2010), but remains high. The prevalence among girls under the age of 15 and 5 stands at 33 per cent and 12.9 per cent, respectively…the number of prosecutions for female genital mutilation since the proclamation was made in 2007 remains, however, unknown”. The UN Population Fund reports that girls who are the least educated, poorest and living in rural areas, are at the greatest risk of FGM/C.
3.17.16 UNHCR comments in its Eligibility Guidelines of 2011 that “Despite the ban, FGM is still prevalent amongst almost all ethnic and religious groups in rural areas. Given the widespread endorsement of harmful traditional practices and social norms of a persecutory nature – such as FGM – by large segments of the population, it is unlikely that an internal flight / internal relocation (IFA/IRA) alternatives would be available for individuals who fear harm as a result of such practices”.
3.17.17 The UNHCR guidelines continue on internal flight “Whether an IFA/IRA is “reasonable” must be determined on a case-by-case basis, taking fully into account the human rights and humanitarian environment in the prospective area of relocation at the time of the decision”. Important factors to consider are “the availability of traditional support mechanisms, such as family and friends, in the area of prospective relocation; the ability of displaced individuals to sustain themselves, including livelihood opportunities; and restrictions on freedom of movement within the country, particularly along the borders with Sudan and Ethiopia. Relocation to other tribal or ethnic areas may not be possible due to latent or overt conflicts between such groups, lack of acceptance, and other societal and cultural barriers. Employment opportunities in urban centres, including Asmara, remain limit.
3.17.27 Conclusion: Violence against women and children, including domestic violence and rape, is reportedly widespread in Eritrea, despite criminalization of some of these practices. FGM continues to be prevalent amongst almost all ethnic and religious groups in rural areas. Allegations of rape and sexual harassment, particularly in military and educational training camps or during interrogation, are frequent.
3.17.28 In general, state protection is statutorily available to women; however societal norms and a lack of trained personnel and inadequate funding hindered the authorities‟ response to domestic violence. Religious authorities or families sometimes responded to reports of rape by encouraging the perpetrator to marry the victim. The number of prosecutions for female genital mutilation since 2007 ban remains unknown. No effective mechanism for redress and protection exists within or outside the military for conscripts who are subjected to sexual violence. The government did not report prosecuting or convicting any traffickers during 2012 and did not have procedures in place to identify or assist trafficking victims. Each case however should be considered on its individual merits to assess whether effective protection will be provided to an individual.
3.17.29 The reasonableness of internal relocation must be assessed taking full account of the individual circumstances of the particular claimant. In considering whether internal relocation is a viable option, particular factors to consider are the area of proposed relocation, whether the individual can access adequate support from family, or from community members, or is able to support herself and / or any dependents in the new location.
3.17.30 Where an Eritrean woman is able to show that she faces a real risk of gender based violence amounting to torture or inhuman or degrading treatment is unable, or unwilling through fear, to access protection and where internal relocation is unduly harsh, a grant of protection would be appropriate”.
ETHIOPIA OGN v12.0 Issued November 2013, provides:
“3.19.6 “Female Genital Mutilation/Cutting (FGM/C) is illegal, but the government did not actively enforce this prohibition or punish those who practiced it. The practice was still widespread; however, according to a 2010 Population Council survey the rates continued to fall. Eighty percent of women ages 40 to 49 reported they were subjected to FGM/C, while 58 percent of girls and women ages 15 to 19 reported the same. The prevalence of FGM/C was highest in the Afar, SNNPR, and Oromia regions.
3.19.9 The 2011 Concluding Observations of the Committee on the Elimination of Violence Against Women reported that it was ―concerned that FGM, sexual, domestic and other forms of violence against women are under-reported due to cultural taboos and victims‘ lack of trust in the legal system, and that criminal law provisions are not consistently enforced because of insufficient allocation of funds, lack of coordination among the relevant actors, low awareness of existing laws and policies on the part of law enforcement officials, lack of capacity to apply the law in a gender-sensitive manner, and discriminatory societal attitudes. Lastly, the Committee is concerned about the State party‘s failure to criminalize marital rape, its delay in adopting a national strategy to combat violence against women, lack of victim assistance and rehabilitation services, and the absence of disaggregated data on prosecution and conviction rates in relation to violence against women.
3.19.15 For some women in Ethiopia relocation, including to avoid FGM, might not be unduly harsh. However given the level of discrimination against women, numbers of IDPs in the country and the threat of trafficking, this is only likely to be the case where the individual can access adequate support from family, or from community members, based in Ethiopia or abroad, or is able to support herself and / or any dependents.
3.19.16 Where an Ethiopian woman is able to show that she faces a real risk of gender based violence amounting to torture or inhuman or degrading treatment is unable, or unwilling through fear, to access protection and where internal relocation is unduly harsh, a grant of refugee status would be appropriate”
NIGERIA OGN 10.0 December 2013 provides:
3.20.4 Ejiro Otive Igbuzor, speaking on the evils of female genital mutilation pointed out that the practice of FGM is performed in nearly all states in Nigeria. According to him the prevalence in the North is due to early marriages. He revealed that the prevalence of FGM in Nigeria is estimated at 36-60%.
3.20.5 The 2008 NDHS reported 30 percent of women in the country suffered FGM/C. While practiced in all parts of the country, FGM/C remained most prevalent in the southern region among the Yoruba and Igbo. Infibulation, the most severe form of FGM/C, infrequently occurred in northern states but was common in the South. The age at which women and girls were subjected to the practice varied from the first week of life until after a woman delivered her first child; however, most female victims suffered FGM/C before their first birthday.
3.20.6 According to the Unicef report, Female Genital Mutilation/Cutting: A statistical overview and exploration of the dynamics of change, in 2011 27% of girls and women aged 15 to 49 years had undergone FGM/C. According to the same source prevalence of FGM/C has dropped by about half among adolescent girls in Nigeria”.
3.20.9 Whilst protection and/or assistance are available from governmental and non-governmental sources, this is limited. Caseworkers will need to ensure that each case is considered on its own merits, however in general those who are unable or, owing to fear, unwilling to avail themselves of the protection of the authorities, can safely relocate to another part of Nigeria where the family members who are pressurising them to undergo FGM would be unlikely to trace them. Women in this situation would if they choose to do so, also be able to seek protection from women‘s NGO‘s in the new location.
3.20.10 Women who have not undergone FGM, who are able to demonstrate that they are at serious risk of facing such treatment and are unable or, owing to fear, unwilling to avail themselves of the protection of the authorities should be granted asylum as members of a particular social group (PSG) if they are unable to escape the risk by internal relocation.
3.20.11 Where applicants are granted asylum the accompanying parents may be eligible for a grant of leave. The act of enforced FGM on a child, where the parents are opposed to the act and where there is a real risk that FGM may be enforced and that FGM is prevalent in that country and where there is no sufficiency of protection could result in mental suffering of the parents such as to amount to persecution. Caseworkers should consider whether, on the basis of the facts, accompanying parents would qualify for asylum on the basis of a well founded fear of persecution as a member of a PSG (accompanying parents of a daughter at risk of FGM) in the Nigeria. Each case however, must be considered on its individual merits”.
“3.20.3 Currently however, there is no federal law on Female Genital Mutilation in Nigeria, and advocates against the practice presently rely on Section 34(1) (a) of the 1999 Constitution, which states that “no person shall be subjected to torture or inhuman or degrading treatment.” Despite the fact that Nigeria was one of the five countries that sponsored a resolution at the forty-sixth World Health Assembly calling for the eradication of Female Genital Mutilation (FGM) in all nations, the practice is still very rampant in the country. Though some states of the federation, including Lagos, Osun, Ondo, Ogun, Ekiti, Bayelsa, Edo, Cross-River and Rivers have enacted FGM laws, implementation of these laws has been a huge challenge. In January 2012 a 15 year old girl died from post-circumcision haemorrhage in Bayelsa state and her 17 year old sister ran away to not face the same fate.
3.20.5 The 2008 NDHS reported 30 percent of women in the country suffered FGM/C. While practiced in all parts of the country, FGM/C remained most prevalent in the southern region among the Yoruba and Igbo. Infibulation, the most severe form of FGM/C, infrequently occurred in northern states but was common in the South. The age at which women and girls were subjected to the practice varied from the first week of life until after a woman delivered her first child; however, most female victims suffered FGM/C before their first birthday.
3.20.7 The federal government publicly opposed FGM/C but took no legal action to curb the practice. Twelve states banned FGM/C; however, once a state legislature criminalised FGM/C, NGOs found they had to convince local government authorities that state laws applied in their districts. The Ministry of Health, women’s groups, and many NGOs sponsored public awareness projects to educate communities about the health hazards of FGM/C. Underfunding and logistical obstacles limited their contact with health care workers.
3.20.8 Ejiro Otive Igbuzor, noted that legislation and enforcement laws are vital though such laws exist in states including Abia, Bayelsa, Cross River, Delta, Edo, Ogun, Osun and Rivers but that the penalties are mild which, according to him, has not hastened the abolishment of the act. He added that in Delta the law stipulates a three months’ imprisonment and a fine while in Edo it is six months’ imprisonment and a fine of 1000 Nigerian Naira (approximately £4)”.
CONSIDERATIONS FROM THE UPPER TRIBUNAL – APPLICATION OF COUNTRY GUIDANCE CASELAW – FGM
Country Guidance cases relate to certain asylum cases which are singled out by the Tribunal to become binding rulings on the conditions in a certain country.
The Upper Tribunal Immigration and Asylum Chamber Guidance Note 2011 No 2 provides;
11. Special arrangements are made for the reporting of country guidance cases…“A reported determination of the Tribunal, the AIT or the IAT bearing the letters CG shall be treated as authoritative finding on the country guidance issue identified in the determination, based on the evidence before the members of Tribunal….that determine the appeal. As a result , unless it has been expressly superseded or replaced by any later CG determination, or is inconsistent with other authority that is binding on the Tribunal, such a country guidance case is authoritative in any subsequent appeal, so far as that appeal:-
a) relates to the country guidance issue in question; and
b) depends upon the same or similar evidence”.
If there is credible fresh evidence relevant to the issue that has not been considered in the Country Guidance case or, if a subsequent case includes further issues that have not been considered in the CG case, the judge will reach the appropriate conclusion on the evidence, taking into account the conclusion in the CG case so far as it remains relevant.
12. Country Guidance cases will remain as such on the Chamber web site unless and until replaced by fresh Country Guidance or reversed by a decision of a higher court. Where Country Guidance has become outdated by reason of developments in the country in question, it is anticipated that a judge of the First-tier Tribunal will have such credible fresh evidence as envisaged in paragraph 11 above. Where there is reasonable doubt as to whether Country
Guidance is still applicable permission to appeal to the Chamber may well be given in an appropriate case”.
The Upper Tribunal has made several decisions on FGM cases as country guidance cases and examples of these decisions are as set out below;
The case of DI (IFA – FGM) Ivory Coast CG [2002] UKIAT 04437 provides :
“26. The Tribunal is of the view that the Adjudicator rightly looked at the Appellant’s evidence in the context of the objective evidence and properly accepted that FGM was prevalent and customary.
27. Putting aside the issues of credibility, we have two main issues to consider. The first is whether the Appellant will be offered adequate protection against her mother and the people in Yopougon if she is forced to undergo FGM; Secondly whether she has an internal flight option.
28. As regards protection, the new law, concerning crimes against women, enacted in December 1998, specifically forbids FGM and makes those who perform it subject to criminal penalties of imprisonment for up to five years and a fine. The Appellant in reply to question 4 (A10) SEF said that she could not report her mother or the group’s activities to the police because her mother would have been arrested for murder. In the circumstances the Adjudicator’s finding that the Appellant was thereby acknowledging that the police would indeed intervene to uphold the law was a proper finding to make. Indeed, according to the objective evidence, in July 2000 two Ivorian women were arrested for practising FGM on girls aged between 10 and 14. We agree with Counsel that this may be little effort for a huge problem; but the fact is there is a law and it is for those such as the Appellant who fear such practice to use the law to prosecute those who practice it. The arrest of the two Ivorian women does indicate that the authorities will act when called upon to do so. Although eradicating FGM it is proving an uphill struggle, the objective evidence does indicate that the authorities will use the law to prosecute practitioners if they are brought to their attention. The fact that the delegation went to the remote regions of Ivory Coast urging former colleagues to stop FGM following the revelation that an elderly woman had been practising FGM for 40 years, does not support the Appellant’s evidence in her statement at paragraph 5 that the authorities are unable and unwilling to intervene in such practice. It also belies her statement that the authorities would not investigate her position as this is not considered a crime, but a custom. The Tribunal does not find that the practitioners in her village can be considered as agents of persecution because the enactment of the law in December 1998, shows that the government does not condone the practice. Therefore the law is there to protect the Appellant and we find that the authorities would be willing and able to use the law to protect her.
29. As regards the internal flight alternative, the Appellant, until she left Ivory Coast, was able to successfully evade circumcision. The Appellant’s evidence was that she and her sister both knew that circumcision would be carried out in August 2000. We consider that the fact that they did not know the actual date was irrelevant. The fact is her sister did voluntarily return to the village in that month to attend the village feast. Her voluntary return belies the Appellant’s claim that they were being pursued for female circumcision. The Appellant was living with her uncle and it would appear that her mother knew this. If indeed she was being pursued for circumcision, she could have been caught at anytime. On such evidence, the claim that the Appellant cannot relocate in Ivory Coast is not sustainable.
31. As to the age range for circumcision being high, the objective evidence leans towards circumcision being performed on young girls or at puberty as part of the right of passage. It may be that in this Appellant’s case it could still be performed even though she is an adult, has a child and was living with her partner. Nevertheless, the fact remains that the Appellant was able to avoid circumcision while she was in Ivory Coast and we have not heard any cogent arguments as to why she cannot continue to do so. We find it incredible that the Appellant’s mother would threaten to kill her as a matter of honour. According to the evidence, when her other daughter was bleeding during circumcision, she called the uncle with whom the Appellant was living, as an emergency, in order to take the daughter to the hospital. This would suggest an attempt to save her daughter’s life. It therefore beggars belief that if indeed one daughter has died through circumcision, the mother would then threaten to kill the other daughter if she returned to Ivory Coast.
32. Therefore on the totality of the evidence we do not find that the appellant has established to the appropriate standard of proof that she would be persecuted for a Convention reason if she is returned to the Ivory Coast or that there are substantial grounds for believing that she would suffer ill treatment in breach of Article 3 of the ECHR”.
The case of VM (FGM-risks-Mungiki-Kikuyu/Gikuyu) Kenya CG [2008] UKAIT 00049, Headnote provides:
1.It is important to determine whether a Kenyan claimant who fears FGM belongs to an ethnic group amongst which FGM is practised. If so, she may be a member of a particular social group for the purposes of the 1951 Refugee Convention.
2. Uncircumcised women in Kenya, whether Gikuyu/Kikuyu or not, are not as such, at real risk of FGM.
3. There is evidence that the Mungiki organisation seeks to impose FGM and other forms of violence, on women and children other than those who have been initiated into their sect. In particular, such women and children include the wives, partners, children and other female family members of those men who have taken the Mungiki oath. Insufficient protection is available from the Kenyan authorities for such persons.
4. It may be possible for a woman not wishing to undergo FGM herself, or not wishing her child to do so, to relocate to another community which does not follow the practice of FGM.
5. In general:
(a) those who practise FGM are not reasonably likely (particularly in urban areas), to seek to inflict FGM upon women from ethnic groups or sub-groups which do not practise FGM;
(b) a woman or her child who comes from, or becomes connected by marriage, partnership or other family ties, to an ethnic group (or sub-group) where FGM is practised will be at real risk only if the evidence shows that she is reasonably likely to be required by her parents, grandparents, or by others in a position of power and influence over her, to undergo FGM or allow her child to undergo it.
6. Internal relocation may be available in Kenya to a woman who is at real risk of forced FGM in her home area if the evidence shows: (i) she is not reasonably likely to encounter anyone in the place of relocation who would be in a position of power and influence over her and who would use that power and influence to require her to undergo FGM, or would cause her presence in the place of relocation to become known to such a person or persons (e.g. the Mungiki); and (ii) that the relocation is reasonable taking into account all the relevant factors including the religious and cultural context, the position of women within Kenyan society and the need for kinship links in the place of relocation in order to sustain such movement successfully. In
particular, in the case of a woman from a rural area in Kenya, internal relocation to some other region or urban centre will not be available unless her circumstances are such that she will be able to survive economically (see Januzi v Secretary of State for the Home Department
and others [2006] UKHL 5).
7. This guidance supersedes that in FK (FGM – Risk and Relocation) Kenya
CG [2007] UKAIT 00041.
The case of FM (FGM) Sudan CG [2007] UKAIT 00060, Headnote provides;
“Significant action is being taken in Sudan, both within government and by NGOs, to combat the practice of female genital mutilation in all its forms. Legal sanctions are, however, unlikely to be applied where a woman has been subjected by her family to FGM.There is in general no real risk of a woman being subjected to FGM at the instigation of persons who are not family members. As a general matter, the risk of FGM being inflicted on an unmarried woman will depend on the attitude of her family, most particularly her parents but including her extended family. A woman who comes from an educated family and/or a family of high social status is as such less likely to experience family pressure to submit to FGM. It is, however, not possible to say that such a background will automatically lead to a finding that she is not at real risk. The risk of FGM from extended family members will depend on a variety of factors, including the age and vulnerability of the woman concerned, the attitude and whereabouts of her parents and the location and “reach” of the extended family. If a woman’s parents are opposed to FGM, they will normally be in a position to ensure that she does not marry a man who (or whose family) is in favour of it, regardless of the attitude of other relatives of the woman concerned”.
The case of AMM and others (conflict; humanitarian crisis; returnees; FGM) Somalia CG [2011] UKUT 00445 (IAC) provides:
“Female genital mutilation
16) The incidence of FGM in Somalia is universally agreed to be over 90%. The predominant type of FGM is the “pharaonic”, categorised by the World Health Organisation as Type III. The societal requirement for any girl or woman to undergo FGM is strong. In general, an uncircumcised, unmarried Somali woman, up to the age of 39, will be at real risk of suffering FGM.
17) The risk will be greatest in cases where both parents are in favour of FGM. Where both are opposed, the question of whether the risk will reach the requisite level will need to be determined by reference to the extent to which the parents are likely to be able to withstand the strong societal pressures. Unless the parents are from a socio-economic background that is likely to distance them from mainstream social attitudes, or there is some other particular feature of their case, the fact of parental opposition may well as a general matter be incapable of eliminating the real risk to the daughter that others (particularly relatives) will at some point inflict FGM on her.
557. It is, of course, established law that FGM “constitutes treatment which would amount to persecution within the meaning of the Convention”, whatever form of it is practised and that, having regard to the sexually discriminatory nature of the practice, its infliction upon a woman engages the Refugee Convention by reference to the “particular social group” category (K and Fornah v Secretary of State for the Home Department [2006] UKHL 46). Notwithstanding the interesting evidence about Somali men complying with the decisions that women make, we can see no reason to refuse to find the relevant PSG in Somalia, when it has been found in all the other African countries in which the Tribunal or the higher courts have had occasion to examine the matter.
558.Likewise, we have no difficulty in finding that a Somali mother may suffer persecution and
treatment in breach of her own Article 3/15(b) rights if her daughter is subjected to FGM against the mother’s wishes. As the AIT found in FM (FGM) Sudan CG [2007] UKAIT 00060:-
“Given the first appellant’s abhorrence of FGM, any infliction of it upon either of her daughters is, we find, reasonably likely to have so profound an effect upon the first appellant as to amount to the infliction on her of persecutory harm. In the light of our finding as to the nature of the particular social group in the present case, it follows that the first appellant is at real risk of persecution for a Refugee Convention reason (Katrinak v Secretary of State for the Home Department [2001] EWCA Civ 832: Recital 27 to Council Directive 2004/83/EC).”
559. This point is also borne out in the UNHCR’s Guidance Note on Refugee Claims Relating to Female Genital Mutilation (May 2009):-
“11. The parent could nevertheless be considered a principal applicant where he or she is found to have a claim in his or her own right. This includes cases where the parent will be forced to witness the pain and suffering of the child, or risk persecution for being opposed to the practice.
12. Even where the parents have been in the country of asylum for some time, a well-founded fear on behalf of the child or because of the parents’ own opposition to FGM can arise upon the birth of a daughter post-flight. The fact that the applicant did not demonstrate this conviction or opinion in the country of origin, nor act upon it, does not itself mean that a fear of persecution is unfounded, as the issue would not necessarily have arisen until then. The birth of a daughter may, in these circumstances, give rise to a sur place claim. If it is held that the opposition or fear of FGM is a mere artifice for the purpose of creating grounds for asserting a fear of persecution, a stringent evaluation of the well-foundedness of the fear is warranted. In the event that the claim is found to be self-serving, but the claimant nonetheless has a well-founded fear of persecution, international protection is required.”
560. The prevalence of FGM in Somalia is, we find, so great that an uncircumcised, unmarried Somali woman, up to age 39, will in general be at real risk of suffering FGM. The risk will obviously be at its greatest where both parents are in favour of FGM. Conversely, where both parents are opposed to it, the question of whether the risk will reach the requisite level will need to be determined by reference to the extent to which the parents are likely to be able to withstand what are, as a general matter, strong societal pressures (from both men and women) in Somalia for the procedure to be carried out on their daughter. Unless the parents are from a socio-economic background that is likely to distance them from mainstream social attitudes, or there is some other particular feature of their case (such as living in a place where – exceptionally – an anti-FGM stance has taken hold) the fact of parental opposition may well as a general matter be incapable of eliminating the real risk to the daughter that others (particularly relatives) will at some point inflict FGM on her.”
CONSIDERATIONS
Having regard to how the Home Office or Tribunal would consider an asylum claim raising fear of return on the basis of FGM, it is clear that not only will questions arise as regards the credibility of the claimant in raising such a claim but whether protection may still be denied on the basis that they may be able to safely relocate upon return or avail themselves of their country’s protection through the relevant authorities such as the police.
So as to further strengthen a claim based on FGM, it is important whilst preparing the claim that relevant up-to-date background evidence be sourced so that the claimant ‘s subjective fears can be confirmed objectively so as to assist in establishing the fear of return and risk issues. Credibility issues of course may also depend largely upon how well the claim is dealt with in the claimant’s statement through obtaining all relevant information from the claimant and also to a greater extent having regard to the claimant’s responses during the substantive interview or if there is an appeal , through cross examination. Unexplained inconsistencies not reasonably explained away may detract from the credibility of the claim.
Issues of internal relocation and effectiveness of police protection where the background evidence is not clear may be dealt with in an appropriate case by instructing a relevant country expert to address the issues.
Where an adult has claimed asylum together with a child who may or may not have been born here, it may be that the mother herself was subjected to the procedure prior to arrival in the UK and as such will raise fears that upon return the child will be at risk of being subjected to FGM. In such a case referring the mother herself to a medical expert for an assessment in order to seek a report confirming that the procedure was performed may assist in reaching a conclusion that where the mother was subjected to FGM in the country of origin, a reasonable likelihood may exist that the same may apply to the child on return. It is also highly likely to be the case that where the child was born in the UK, the Midwife may long have recorded observations in the medical record that the mother may appear to have been cut.
CONCLUSION
Where an asylum claim is being advanced on behalf of a child, the Secretary of State‘s Section 55 duty is most relevant as regards the child’s welfare and best interests. Therefore it may be that where a mother together with her child seek to resist removal on the basis that they fear being subjected to FGM (and issues of credibility, internal relocation, effectiveness of police protection do not weigh heavily count against them) it is more likely in such cases in combination that the bests interests of the child may triumph above all other considerations and a grant of refugee status may be forthcoming.