Asylum following gender-based torture

Female genital mutilation (FGM) is an endemic traditional practice permanently inhibiting the female’s ability to enjoy sex and procreate safely – those being perhaps some of the ‘milder’ side effects. 

Claim for asylum: real risk of persecution

Under the Geneva (‘Refugee’) Convention 1951, future victims of FGM will be accorded international protection where they are unable to receive State protection or relocate internally to escape that risk. Future victims are usually accorded protection owing to their membership of a distinct ‘particular social group’ (most commonly females who are intact and who oppose the practice of FGM; or mothers, who oppose FGM, of daughters who will be forced to undergo FGM).

However, what about past victims? Females who have already been subject to forced FGM have suffered one of the most atrocious, life-altering forms of extreme gender-based persecution, but unless a past victim can prove that her daughter will face a real risk of being forcibly circumcised, or that she will be infibulated (subjected to a further, more extreme version of FGM), there is no protection accorded to her.

The UK immigration tribunal has previously found an appellant to be a victim of FGM, yet proceeded to dismiss an asylum appeal on the basis that there was no indication that said persecution would continue on return to her country of origin. In other words, there was no ‘well-founded fear of future persecution’: she had already been subject to FGM, therefore would not be subject to it again, because it had already occurred.

Is this really the kind of precedent that sits comfortably with the UK courts? The Refugee Convention is a living instrument, yet the UK courts appear to be reluctant to adopt a modern approach to some gender-based issues. The landmark case of Fornah v Secretary of State for the Home Department made huge positive changes to the law in the UK for women facing gender-based violence. Prior to Fornah women were not recognised as a particular social group, so they could often not be protected from gender-based violence under the Refugee Convention, unless there was a link to another Convention ground – i.e. race, religion, nationality, membership of a particular social group or political opinion.

Despite the groundbreaking precedent for victims of gender-based violence, Fornah was (most surprisingly) not revolutionary enough. While the UK courts are sympathetic to past victims of FGM, a precedent has not been set that will tell those victims that they matter, that what they have suffered, what has been violently and forcibly inflicted upon them, will not be tolerated by the UK. The courts render themselves unable to allow an asylum appeal on this basis owing to a lack of legal precedent on the matter. Yet, isn’t that what common law is grounded on? FGM survivors – many die during the procedure – are crying out for a Lady Hale moment like in Fornah.

Survivors generally claim asylum to protect their daughters from FGM. As part of that claim it is often assessed whether an appellant is a victim of FGM. It may be considered that a positive finding of past FGM would be highly indicative of a finding of future FGM on an appellant’s daughter(s) or an allowed appeal in terms of Para 339K of the Immigration Rules:

“The fact that a person has already been subject to persecution or serious harm, or to direct threats of such persecution or such harm, will be regarded as a serious indication of the person’s well-founded fear of persecution or real risk of suffering serious harm, unless there are good reasons to consider that such persecution or serious harm will not be repeated.”

However, even if the UK courts accept that an appellant is a survivor of FGM, it does not often lead to either of the aforementioned remedies. Often asylum appeals are refused on grounds of inconsistencies or implausibility.  

Application for Discretionary Leave to remain

There is compelling legal authority (re B (FC) (Appellant) (2002) Regina v Special Adjudicator (Respondent) ex parte Hoxha (FC) (Appellant)) confirming that it is the Home Office’s position to grant Discretionary Leave to remain, on compassionate grounds, to vulnerable applicants due to continuing physical or psychological effects of persecution he/she has suffered in the past. However, it appears that this is not followed by the Home Office in practice.

Dating back to 2002, this legal authority was promulgated prior to Fornah (2006) . Bearing this in mind, and taking into account the lifelong medical consequences of FGM, it is surely the Home Office’s position that past victims of FGM who suffer ongoing permanent effects are to be granted some form of Discretionary Leave to remain on the basis of compassionate grounds. Evidence of any successful applications or appeals on this basis is, however, not apparent.

A continuing and permanent act of persecution

FGM is continuing and permanent act of persecution capable of engaging the Refugee Convention and Para 339K of the Immigration Rules:

• Where it has been accepted that the applicant is a victim of forced FGM, it should be held that this past persecution is an indication of a well-founded fear of future persecution, in the form of sustained and lifelong psychical and psychological medical consequences.
• Given that FGM entails significant, permanent and continuing medical consequences, it should surely be considered as an act of ongoing and continuing persecution as per the dicta of the US courts.
• FGM constitutes persecution of such brutality that it is an ongoing and continuing act of persecution with lifelong consequences which should render an appellant a refugee in terms of paragraph 339K of the Immigration Rules.

While the law in the US is not binding on UK courts, the position in Mohammed v Gonzales is particularly persuasive from the humanitarian perspective, upon which the Refugee Convention was born. Mutilated survivors of FGM deserve protection and a safe place to recover from such a brutal act of violence.

The UK publicises that it is committed to ending FGM and protecting victims of FGM and so the Home Office should put this into practice. Although an applicant has not articulated that she will be ‘re-mutilated’, it does not mean that the persecution is at an end – she may suffer extreme medical consequences for the rest of her life, physically and psychologically. European countries who grant protection to victims of past FGM include Luxembourg, Poland, Germany, Italy and Croatia. In order to meet its obligations under the Refugee Convention, the UK should follow suit.

Conclusion

In summary, it is vehemently felt by most human rights lawyers that a victim of past FGM should be deemed a refugee in terms of Para 339K of the Immigration Rules due to the ongoing physical and psychological medical consequences which amount to future persecution. Furthermore, there are compelling reasons arising out of FGM (atrocious past persecution) to grant refugee status, humanitarian protection or Discretionary Leave to remain.

Victims are crying for help, to be protected, to feel safe. There is scope, within established legal precedent, to protect vulnerable victims who have suffered one of the most severe forms of gender-based torture. Who will be as courageous as Lady Hale in Fornah to set the anticipated, long-awaited and necessary legal precedent? The precedent in Fornah was set in 2006, much later than the Geneva Convention was ratified by the UK. It is desperately hoped that victims of FGM will not have to wait any longer for their gender-based, lifelong suffering to be recognised.

Written by Rebekah Strachan, Associate, No Borders Law