FGM asylum claims

We need more political discourse on FGM internationally and an urgent review of the Home Secretary’s handling of asylum claims – whilst jurisprudence evolves


It is estimated that more than 200 million girls and women alive today have undergone female genital mutilation (FGM) – and there are three million girls at risk of FGM each year (UNICEF, 2013). FGM is largely concentrated in 30 countries in Africa, the Middle East and Asia. Following increased migration to Western nations, FGM-performing communities have continued the cultural and traditional practice outside of their countries of origin.

Whilst media and political attention have focused on raising awareness of the hidden crime, preventing FGM in the UK and bringing offenders to justice through the criminal courts, political discourse about FGM as a claim for asylum is scarce. As a family and immigration practitioner, I often come across cases in which families have no immigration status in the UK but fear that if they are returned to the country of origin their daughters could be cut.

Ground for asylum

FGM is a ground for asylum, as set out below, but such claims are often lost in a politically ‘hostile environment’ for asylum seekers. Indeed, the Home Secretary continues to refuse FGM asylum claims. Even when appellants’ exercise their right to appeal, immigration tribunals often uphold the decisions of the Home Secretary. Is this indicative of a perception that the public interest in reducing immigration outweighs the government’s commitment to protecting girls and women from gender-based violence? Here, surely, is an irreconcilable contradiction in the government’s pledge to end FGM in a generation. The government claims it is determined to protect victims, prosecute perpetrators and eliminate FGM, yet when women and girls seek immigration status to protect themselves from FGM overseas, they are turned away.

There are no statistics on the numbers of FGM asylum claims each year in the UK. According to the UNHCR, of the 25,000 girls and women seeking asylum in Europe in 2014, 71% had already been subject to FGM. In 2011, 2,410 women claiming asylum in the UK were from FGM-risk countries; that equates to 27.40% of female asylum claims. The numbers continue to increase each year.

The 1951 Refugee Convention (Art 1 A(2)) states that a refugee is a ‘person who has a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion, owing to such fear, is unwilling to avail himself of the protection of that country’. In the leading case of Fornah (FC) (Appellant) v SSHD (Respondent) [2006] UKHL 46, the House of Lords held that FGM constitutes treatment violating Article 3 of European Convention on Human Rights (torture, cruel, inhuman or degrading treatment) and persecution within the Refugee Convention. Furthermore, the particular social group might best be defined as women belonging to those ethnic groups where FGM is practised. Women and girls could have a well-founded fear of persecution due to their political opinion in campaigning to end FGM, being at risk of FGM, protecting their daughters from FGM and pressure to become cutters in the country of origin.

What is a typical FGM asylum claim?

Asylum claims typically follow a standard pattern: a family relocates from a high prevalence FGM country to the UK. They have insecure immigration status. The mother has been cut as a child. Her daughter is at risk of being cut if the family return to the country of origin due to familial and community pressure to conform to a traditional custom. One of the single biggest indicators that a girl is at risk of FGM is that her mother was cut.

After a lapse in time, the family discover that they can apply for asylum in the UK due to their daughter being at risk of FGM upon return to the country of origin. The main asylum seeker is interviewed and their evidence is tested. Many survivors lack knowledge of the purpose of the interview; they struggle to discuss a deeply traumatic experience with an interviewer lacking in understanding and knowledge; and they are often giving evidence in a context of oblique language and cultural barriers. As such, there might be perceived inconsistencies in the evidence given by asylum seekers.

In all of the cases I have worked on, women and girls have undergone medical examinations to show whether they have been cut or not. This has become an implied condition for asylum seekers to prove their cut status.

Refusal grounds

There are several common strands of argument made by the Home Secretary when refusing FGM claims. The first issue is usually the credibility of the appellant: just because the mother has been cut it does not follow that her daughter will be cut. Gathering evidence to show that there is a risk of FGM within a specific familial context is exceedingly difficult. Any delay in claiming asylum damages the family’s credibility. Second, it is argued that the girls’ parents can protect the girl from FGM despite familial or community pressure to conform to societal norms. Third, the parents can internally relocate within the country of origin away from their family to a location where FGM is not prevalent. Fourth, if the country of origin has criminalised FGM, the Home Secretary ordinarily contends that the state protection available is sufficient, even though, FGM is tolerated in wider society and there is no evidence that the law has been implemented effectively. As Sarian Karim, who is originally from Sierra Leone, now anti-FGM campaigner, said: ‘The Home Office is regularly refusing women and girls protection on the grounds that they can live safely elsewhere in their own country... this is not true. In countries like mine, a woman cannot simply leave her family to escape FGM or protect her daughter from the practice.’

"Jurisprudence on the inter-relationship between the immigration tribunal and family court continues to evolve [and] a number of complex issues have yet to become settled law."

The law makes clear that the Home Secretary and Immigration Tribunals must apply a lower standard of proof for asylum claims (R v Secretary of State for the Home Department, ex p Sivakumaran [1988] AC 958). However, the robust process of claiming asylum and the high standard of evidence required has resulted in an exceedingly high standard of proof in asylum claims which means appellants rarely succeed, leaving women and girls at risk of persecution.

Government financial support provided to anti-FGM NGOs in the UK is woeful compared to the financial aid provided to anti-FGM NGOs in countries overseas. The Department for International Development established The Girl Generation, which is committed to ending FGM overseas. $1.8 million grants have been approved in nine countries. The majority of grants are provided to NGOs committed to eliminating FGM. NGOs that offer ‘safe housing’ abroad often feature in the relevant Country Policy and Information Notes on FGM published by the government. The Home Secretary then uses the existence of anti-FGM NGOs in the appellant’s home country to argue that there is sufficient protection and assistance available upon return. No contact is made with NGOs to ascertain what support is available for the appellants and whether that support meets the appellant’s needs. Immigration tribunals find this argument, in some cases, persuasive.

A way forward? FGM Protection Orders

Immigration tribunals are not the only courts dealing with cases where FGM is a risk and the protected person does not have secure immigration status. Applications for FGM Protection Orders (FGMPOs) are frequently issued in designated family courts to prohibit girls (without UK immigration status) from being removed from the jurisdiction to the home country due to risk of FGM. FGMPOs are an injunctive remedy to prevent and protect girls and women from FGM. They were implemented following the Serious Crime Act 2015 and are now embedded in Schedule 2 of the Female Genital Mutilation Act 2003. FGMPOs are wide in nature; the court can direct for example, that passports are removed and the protected person cannot be removed from the jurisdiction. Whilst jurisprudence on the interrelationship between the immigration tribunal and family court continues to evolve, there are two relevant cases, in which the author represented the parents of the protected girl(s), show a number of complex issues that have yet to become settled law.

The first reported case is BA & Anor v JA & Ors (female genital mutilation protection orders and immigration appeals) [2018] EWHC 1754 (Fam). In this case, the family’s application for asylum on the grounds of FGM had been refused by the Home Secretary and the family had exercised their right to appeal. The parents believed that their daughters were at risk of FGM if returned to the home country of Nigeria. Holman J dismissed the application, finding that the risk of FGM was in Nigeria alone and return to the home country was not immediate due to the family awaiting the outcome of their asylum appeal. However, if the family’s appeal rights were exhausted and removal directions issued by the Home Secretary, an application for an FGMPO could then be made.

This would inevitably involve complex legal considerations: (a) the family court’s role in reviewing findings of the Home Secretary and/or immigration tribunals in respect of risk of FGM; (b) the different legal considerations in family courts and immigration tribunals; in the former the child is the paramount consideration and in the latter, only the best interests of the child apply; and (c) the most pressing issue is whether the family court has jurisdiction under Schedule 2 of the FGM Act 2003 to prohibit the Home Secretary from removing the protected person from England and Wales.

This very issue was before the President of the Family Division in another case in January 2019. The local authority had applied for an FGMPO to prohibit the Secretary of State from imminently removing a girl from England and Wales to the home country of Bahrain and/or Sudan due to risk of FGM. The President decided that the family court did not have jurisdiction to bind the Home Secretary. The judgment is eagerly awaited.

Urgency

A review of the Home Secretary’s handling of FGM asylum claims is urgently needed. The government’s response continues to fail vulnerable women and girls living on the margins of society without recourse to public funds and deprived of the safety of immigration status.

Dr Charlotte Proudman is a barrister specialising in family and immigration law and a junior research fellow at Queens’ College Cambridge where she researches the inequality of women under the law.


Further reading

Too much pain: female genital mutilation & asylum in the European Union – a statistical overview, UNCHR.

FGM as a ground for asylum, EndFGM.

Detained: women asylum seekers locked up in the UK, Women for Refugee Women.

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Charlotte Proudman

Dr Charlotte Proudman is a barrister specialising in family and immigration law and a fellow at Queens’ College Cambridge where she researches the inequality of women under the law.