Rights in Exile Programme

Refugee Legal Aid Information for Lawyers Representing Refugees Globally

Female Genital Mutilation/Cutting: Asylum Claims and Appeals

 

Please click here for our FGM/C Resources by Country 

Introduction

This page aims to provide resources for lawyers representing those making asylum claims based on Female Genital Mutilation/Cutting (FGM/C), also commonly referred to as 'female circumcision'. Claims are made by parents on behalf of their daughters, and by girls and adult women on their own behalf. While this page is also concerned with what exactly FGM/C is, its main purpose is twofold: Firstly, it explains why FGM/C constitutes persecution and how a nexus to Refugee Convention grounds can be established. Secondly, it lists and refutes reasons commonly cited by asylum authorities and courts for refusing claims based on FGM/C.

In addition, it lists FGM/C Resources by Country, providing both contact details of NGOs that can help women who fear, or have experienced, FGM/C, as well as the details of experts on FGM/C who are willing to write expert statements pro-bono to help with a case. Further, we have begun to list lawyers who have experience in representing clients in asylum cases based on FGM/C (in countries of asylum).  

Please note that this page is a work in progress. We welcome suggestions for new NGOs, experts and lawyers, as well as all other feedback. Please contact majagrundleratgmx [dot] de (Maja Grundler) for any questions, corrections or additions.

 

FGM/C as persecution and the nexus to Refugee Convention grounds

FGM/C constitutes persecution as it has been classed as a form of torture and inhuman or degrading treatment, and as a violation of the human rights as well as health and bodily integrity of women and girls. It violates the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights (ICCPR). It also violates the International Covenant on Economic, Social and Cultural Rights (ICESCR) which demands the ‘highest attainable standard of physical and mental health’ and the Convention on the Rights of the Child (CRC) which asks to ‘protect the child from all forms of physical or mental violence, injury or abuse.’

In order to qualify for refugee status, a claimant must show that the persecution she fears is for reason of her race, religion, nationality, membership of a particular social group (PSG) or political opinion. Even though the most common Convention ground in connection with FGM/C claims is membership of a PSG, fear of FGM/C can be connected to all of these reasons (Crawley: 2001). Since the definitions of race and nationality include ethnic group membership, it can be argued that persecution happens for reasons of belonging to an ethnic group affected by FGM/C (ibid). Where FGM/C is thought to be a religious requirement, or where the woman’s religion prohibits FGM/C, there is a nexus to the Convention ground religion (ibid). Further, opposition to FGM/C can constitute a political opinion (ibid). Since FGM/C is a practice that affects only women and since women experience discrimination in their countries of origin, with FGM/C being an ‘extreme expression of the discrimination’ (Fornah [31]), they can be said to belong to the PSG “women.” This argument incorporates gender into the refugee definition.

 

Common reasons for refusing claims based on FGM/C

Even though FGM/C constitutes persecution and can be linked to any of the Refugee Convention grounds, some applicants are refused. The following list of reasons for refusing such claims is not exhaustive and does not deal with refusals which are not specific to FGM/C cases, such as credibility issues. It is important to note that each asylum case is unique and that we do not recommend (re-)using general information on FGM/C (as presented here) or expert statements which were written for another case when appealing a decision. Rather, for each case, a new expert statement should be commissioned, taking into account the individual circumstances of the woman in question. Our FGM/C Resources by Country show experts willing to do this pro-bono for a great number of countries of origin. It may also be possible to resolve problems such as credibility issues with the help of such an expert statement. However, if one (or several) of the reasons listed below can be identified from the grounds of refusal, it should be addressed in the appeal, as well as in the expert statement. The following reasons for refusing claims based on FGM/C have been identified in research on asylum claims based on FGM/C made in the UK between 2000 and 2014, as well as on the experiences of Rights in Exile’s co-director Barbara Harrell-Bond who serves as an expert witness on FGM/C in Sierra Leone.

 

1. “The woman can refuse to be cut” or “parents can protect their daughters from FGM/C”

A common reason for refusing an asylum claim based on FGM/C is to allege that it is within the power of the woman herself, or her parents, to refuse the act of FGM/C. In almost every society where it is practised, FGM/C is a rite of passage or initiation as girls enter womanhood and/or perceived as a religious duty; its persistence must be understood in terms of societal pressures to conform and the consequences of failing to do so. In Sierra Leone, for example, FGM/C is explicitly a sacrifice for the fertility both of the individual and the community. FGM/C is believed to ensure that women will desire conjugal relations over masturbation, and thus guarantee reproduction. It is often believed that an un-cut woman will not bear live or healthy children and is often ‘required’ if a girl is to be marriageable.

Marriage, in turn, guarantees economic security, therefore, refusing FGM/C is not an option for women who want to remain part of the community, marry and have children. Often, it is not the decision of the woman, or a girl’s parents whether FGM/C will be performed, but that of elders of the community, often a grandmother. Even if the parents are opposed to FGM/C, they cannot watch their daughters at all times, and girls may be abducted and cut while the parents are away. Furthermore, under European refugee law, actors of protection are defined as ‘parties or organisations, including international organisations, controlling the State or a substantial part of the territory of the State’ (Qualification Directive, art 6(c)). This definition can include clans or tribes, (Clayton: 2014) but individual families or parents are not mentioned. In AMM and others the judge stated that ‘[u]nless the parents are from a socio-economic background that is likely to distance them from mainstream social attitudes, [...] 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’ ([560]).

 

2. “The woman can relocate” 

Another common reason for refusing an asylum claim based on FGM/C is to allege that the woman can simply relocate to avoid being cut. While this reason is not strictly specific to claims based on FGM/C, there are some elements specific to the practice of FGM/C that may make it impossible for the woman to relocate. The issue of relocation (or internal flight or protection alternative) is closely bound up with the existence of state protection. Even if a state prohibits FGM/C by law, this does not necessarily mean that state protection is available. The practice of FGM/C may continue in states which have outlawed it because it is upheld by those in power at local level, or because authorities are unwilling or unable to prevent, persecute and punish perpetrators. Thus, relocation is often no alternative to fleeing the country. In paragraph 28, the UNHCR Guidance Note on FGM/C states:

Where the claimant is from a country with a universal (or near-universal) practice of FGM, internal flight will normally not be considered a relevant alternative. As with other forms of gender-based persecution, FGM is typically perpetrated by private actors. The lack of effective State protection in one part of the country is an indication that the State will not be able or willing to protect the girl or woman in any other part of the country.

And in paragraph 29:

Internal flight in FGM-related claims has mostly been considered by decision-makers in the case of countries where FGM is not a general practice, or is less widespread. If the woman or girl were to relocate, for example, from a rural to an urban area, the protection risks in the place of relocation would nevertheless have to be closely examined, including the potential reach of the agents of persecution.

In addition to these general rules, it should be noted that where ‘ethnic groups are thoroughly interspersed, the country is small and ethnic groups in different parts of the country are highly interconnected’ (K and others
 [128]), internal relocation is not feasible. There is a similar problem, even if the country is large and ethnic groups not well-connected. Women who relocate without a male relative are likely to have to turn to members of their tribe or ethnic group for protection, which, if this ethnic group practices FGM/C, will lead to her being endangered yet again. This also shows that some women may not be able to relocate simply because of their status as women. Lone women may be at risk of sexual violence or be unable to find work and become destitute.

  

3. “Women can choose not to become cutters”

A less well-known, but no less important, type of asylum claim based on FGM/C is one made by a woman who flees because she is to become a cutter. As with women who are afraid to undergo FGM, it may be claimed that the woman can relocate (see above) or that she can simply refuse to cut other women. Just like women cannot simply refuse FGM/C without facing exclusion from the community, not all women who are to inherit the position of cutter cannot simply refuse this “privilege.” Whether or not such a refusal is possible will depend on the particular society and community the woman is part of. This is why anthropological research and expert reports are so vital to asylum cases.  

 

Conclusion

Even though FGM/C constitutes persecution and can be linked to any of the Refugee Convention grounds, some applicants are refused because it is claimed that they can evade undergoing or performing FGM/C. The key to a successful appeal in such cases is to help the decision-maker gain an understanding of the cultural context of FGM/C, but also of the situation of women in the country of origin in general. An expert statement can help with both of these issues. The above issues are also adressed in this Channel 4 News segment:

 

Last updated: 20 March 2017. 

 

References:

AMM and others (conflict; humanitarian crisis; returnees; FGM) Somalia CG [2011] UKUT 00445 (IAC)

CLAYTON, G. (2014) Textbook on Immigration and Asylum Law, Oxford: Oxford University Press.

CRAWLEY, H. (2001) Refugees and Gender: Law and Process, Jordan.

K v SSHD, Fornah v SSHD [2006] UKHL 46, [2007] 1 AC 412

K and others (FGM) The Gambia CG [2013] UKUT 00062(IAC)

Council Directive (EC) 2004/83 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 [2004] OJ L304/12 (Qualification Directive)

  

Further Resources:

Please see also our page on FGM/C Case Law and other Legal Documents

BOSIRE, T. O. (2013) Politics of Female Genital Cutting (FGC), Human Rights and the Sierra Leone State: A Case of Sierra Leone Secret Society, Newcastle upon Tyne: Cambridge Scholars Publishing. 

BOYLE, E. and CORL, A. (2010) Law and Culture in a Global Context: Interventions to Eradicate Female Genital Cutting. Annual Review of Law and Social Science , [Online] Annual Reviews 6. p. 195–215.

Forced Migration Review. (2015) FGM and Asylum in Europe (mini-feature). Oxford: Refugee Studies Centre.

GRUENBAUM, E. (2001) The Female Circumcision Controversy: An Anthropological Perspective, Philadelphia: University of Pennsylvania Press. 

HERNLUND, Y. and SHELL-DUNCAN, B. (eds.) (2007). Transcultural Bodies: Female Genital Cutting in Global Context, New Brunswick: Rutgers University Press.

KOSO-THOMAS, O. (1987) The Circumcision of Women: A Strategy for Eradication, London: Zed Books.   

KELLEHER, F. (2014). ‘FGM and Child Marriage: Grandmothers Are Part of the Problem and the Solution’, The Guardian.

MOSELEY, W. (ed.) (2004). Taking Sides: Clashing Views on Controversial African Issues. Guilford: McGraw-Hill/ Dushkin.

SHELL-DUNCAN, B. and HERNLUND, Y. (eds.) (2000) Female “Circumcision” in Africa: Culture, Controversy, and Change, Boulder: Rienner. 

SHWEDER, R.A. (2013) The Goose and the Gander: The Genital Wars. Global Discourse: An interdisciplinary Journal of Current Affairs and Applied Contemporary Thought [Online] Taylor and Francis Online 3 (2). p. 348-366.

SIFRIS, R. (2014) Reproductive Freedom, Torture and International Human Rights, Routledge.

UN High Commissioner for Refugees (UNHCR) (2013) Too Much Pain: Female Genital Mutilation & Asylum in the European Union - A Statistical Overview [Online]

United Nations Children’s Fund (UNICEF) (2013) Female Genital Mutilation/Cutting: A statistical overview and exploration of the dynamics of change [Online]

World Health Organisation (2014) Female Genital Mutilation Fact sheet N°241 [Online]

 

FGM/C Resources by Country 

This list provides information on FGM/C by country. For a number of the countries in which FGM/C is practised we have listed experts who can assist the court in deciding claims based on FGM/C by providing expert witness statements on FGM/C for a specific country. We are trying to recruit more such experts and welcome suggestions. In addition, the country pages, both for FGM/C-practising and non-practising countries, list Anti-FGM/C NGOs (we welcome suggestions for additions) and relevant (case) law. Furthermore, we are looking to list lawyers/law firms with experience in taking on asylum cases based on FGM/C. For suggestions, please majagrundleratgmx [dot] de (contact us)

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