Refugee convention

The Geneva Convention on the Status of Refugees 1951 (Refugee Convention) deserves special attention because it renders protection in a genuine international fashion: the person invoking it is from a different state to the territory where he or she is at the time of launching the claim, and the safeguarding is sought for events that have taken place or can potentially take place in his or her country of origin.

Victims and potential victims of basic human rights violations who have no protection in their home country can be given rights to escape from violence. This has been internationally recognised under the law on refugees. The Refugee Convention 1951 covers areas relating to the status of refugees and is the key legal document in defining who is a refugee, their rights and the legal obligations of States.

The Refugee Convention defines the word ‘refugee’ under Art 1 (2) as someone who

as a result of events occurring [and] owing to the 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.

In order to gain protection under the refugee law, Article 1 (A) of the Refugee Convention needs to be satisfied.

There are five qualifying grounds for refugee status under the Refugee Convention. Accordingly, persecution based on any other ground will not be considered, and the person involved will not get the protection of the Convention. Therefore, the reason for persecution must be based on one of the listed grounds under Article 1 A(2) of the Convention, which are: race, religion, nationality’, membership of a particular social group or political opinion.

In the absence of any' expressed reference to gender-based persecution under the Refugee Convention, it is not so straightforward to determine on what grounds honour based violence victims fall. Therefore, the issues for honour based violence victims have been established case by’ case. For female genital mutilation claims, religion, nationality’, membership of a particular social group and shared political opinion are the most commonly invoked grounds under the Refugee Convention 1951.[1]

However, clarification was made in 2002 by the United Nations High Commissioner for Refugees (UNHCR), which is the relevant authority’ responsible for supervising the implementation of the Refugee Convention, by’ issuing the Guidelines on the International Protection on Gender-related Persecution in relation to the status of refugees, which has been at the root of honour based violence claims. The UNHCR guidelines provided that

Gender-related claims have typically encompassed, although are by no means limited to, acts of sexual violence, family/domestic violence, coerced family planning, female genital mutilation, punishment for transgression of social mores, and discrimination against homosexuals.

Tn most cases’ the UNHCR acknowledges and provides that ‘the potential or actual harm caused by’ FGM is so serious that it must be considered to qualify as persecution, regardless of the age of the claimant.’ The continuing effects of female genital mutilation may' also give rise to a refugee claim by' someone who

has already been subjected to it. The Guidance also clarifies that under certain circumstances ‘a parent could also establish a well-founded fear of persecution, within the scope of the 1951 Convention’s refugee definition.’[2]

Further detailed consideration of the refugee claims relating to female genital mutilation was made by the UNHCR in May 2009, when a Guidance note specific to this particular practice was issued. This Guidance established that ‘a girl or woman seeking asylum because she has been compelled to undergo, or is likely to be subjected to FGM, can qualify for refugee status.’

This Guideline on Gender-Related Persecution noted that although gender is not specifically referenced in the refugee definition (as it is not one of the five grounds listed) ‘it can influence or dictate the type of persecution or harm suffered and the reasons for this treatment. The refugee definition, properly interpreted, therefore covers gender-related claims.’Therefore, a gender sensitive interpretation should be given to each of the Convention’s grounds, and an asylum claim may be based on one or more of the Convention’s grounds. This was put into practice by Baroness Hale in the case of Fornah by stating: ‘The refugee definition, properly interpreted, can encompass gender-related claims. The text, object, and purpose of the Refugee Convention require a gender-inclusive and gender sensitive interpretation.’

Before the above mentioned UNHCR Guidelines on Gender-Related Persecution were issued, female genital mutilation was recognised as a form of gender-related persecution to make a successful asylum claim in the leading US case, Re Fauziya Kasinga.™ Since then, many other states have recognised female genital mutilation as potentially giving rise to a claim to asylum. In the UK, this was seen in the case of Fornah v Secretary of State for the Home Department.™ In Fornah, the refugee claimant from Sierra Leone ran away when she heard her parents discussing her genital mutilation. If she returned to Sierra Leone, she knew she would always face the risk of genital mutilation. The Home Office rejected her claim for asylum and argued that female genital mutilation in Sierra Leone was not persecution but a widely accepted ritual of passage from childhood to full womanhood. The House of Lords disagreed, stating that the practice ‘causes excruciating pain. It can give rise to serious long term ill-effects, physical and mental, and it is sometimes fatal.’ It was ‘an extreme and cruel expression of

Female body mutilation 117 male dominance ... and the authorities do little to curb or eliminate it.’[3] Thus the House of Lords effectively overturned the UK Immigration and Asylum Tribunal’s decision. Situating the case within the broader context of gender discrimination, Lord Bingham defined the relevant social group as either ‘women of Sierra Leone’ or ‘intact or uninitiated women and girls who are in tribes in Sierra Leone which practice FGM.’

Addressing a dispute that had remained before the House of Lords in their judgment in Shah and Islam on the potential identification of a particular social group, Lord Bingham concluded that the distinguishing feature of the group in this case was not the persecution complained of, but rather the ‘position of social inferiority as compared with men’ within which women in Sierra Leone found themselves. The case is significant in linking the broader contexts of gender discrimination and failure of state protection, as well as establishing a link between both international and regional human rights bodies. The Fornah decision was followed by FK (Kenya), where the refusal of the UK Tribunal to grant asylum to a woman on the basis of her fear of female genital mutilation if she were returned to her country of origin was overturned. However, in contrast, in the case of MD (Women) Ivory Coast CG a 22-year-old woman’s claim to be at risk of forced marriage and female genital mutilation failed. The Upper Tribunal stated that, while female genital mutilation remains a serious problem in Ivory Coast, particularly in the north, it is illegal, and practitioners have been prosecuted under anti-female genital mutilation legislation. The availability of adequate state protection and viable internal relocation alternatives exists. Thus, they were satisfied that the appellant’s fears were not objectively well founded.

Furthermore, the Tribunal concluded at paragraph 282 that although women in the Ivory Coast are capable of being members of a particular social group, and that the risks they are in from suffering FGM (Type 2), domestic violence and forced marriage are sufficiently serious to amount to persecutor}' treatment in the absence of a sufficiency of protection, the risks are not universal and in particular are very much less likely in an urban area such as Abidjan. Furthermore, at paragraph 297, it is stated that, since the appellant herself had undergone female genital mutilation, she did not face any further risk of the same. Therefore, the appeal was dismissed on asylum, humanitarian protection and human rights grounds for female genital mutilation and/or forced marriage. However, women

and girls can become victims of female genital mutilation more than once,[4] and being an independent woman or living in a modern city does not negate the risk.

It was earlier clarified in the UK Asylum Gender Guidelines that certain forms of harm are commonly or only used against women or affect women in a manner which is different to men. These mainly include crimes of honour, such as sexual violence, societal and legal discrimination, refusal of access to contraception, bride burning, forced marriage, forced sterilisation, forced abortion, (forced) female genital mutilation and sexual humiliation. This was acknowledged by the UK Home Office, and as a result ‘gender-specific persecution’ was inserted into the Home Office Guidance. The wording of the Home Office Guidance provides that ‘gender may inform an assessment of whether one of the five Convention grounds does apply, i.e. race, religion, nationality, membership of a particular social group or political opinion.’ Thus, the relevant gender issues when assessing the persecution are listed under the same Guide concern whether:

(i) the form of persecution experienced is gender-specific or predominantly gender-specific: for example, rape and other forms of sexual violence, domestic violence, crimes in the name of honour, female genital mutilation, forced abortion and sterilization

The ways in which gender is also relevant to a woman or man’s experience of persecution include:

i) gender-specific persecution for reasons unrelated to gender (e.g. raped because of holding or expressing a political opinion);

ii) non-gender-specific persecution for reasons relating to gender (e.g. flogged for not adhering to the codes of a religion, e.g. refusing to wear a veil); or

iii) gender-specific persecution because of gender (e.g. female genital mutilation).

There are many other forms of harm that are more frequently or only used against women. These can occur in the family, the community, or at the hands of the State. They include, inter alia, marriage-related harm, violence within the family or community, domestic slaver}', forced abortion, forced sterilisation, female genital mutilation, sexual violence and abuse, or rape. In the absence of clear wordings of what constitutes ‘gender specific persecution’ under the Refugee Convention, the UK Home Office Guide in Asylum Claim provided some guidance on this issue. The issues around female genital mutilation fall within the

Female body mutilation 119 scope of domestic criminal law and child protection law; however, this has now been further reinforced by its recognition in international human rights law.

Female genital mutilation is recognised as a form of gender-related persecution, and it is expressly stated in the Gender Issue in the UK Asylum Claim Guide as fully acknowledged by the UN.[5] This is a promising development for recognising and providing protection for victims and potential victims of female genital mutilation and other types of potential honour based violence when they try to flee to safer places. In the light of the above mentioned guidance, it is fair to conclude that UK courts are aware of the fact that in cases where there is a real threat, female genital mutilation can amount to a ground for asylum.

The Refugee Convention has no international supervision procedure when compared to the European Convention on Human Rights. However, a body of specialised case law has developed, in its interpretation and application by national courts, a compendium of female genital mutilation cases before the courts of different jurisdictions. Nevertheless, there is no uniformity in its approach, and the result has been a patchwork of contrasting decisions.

For instance, under French refugee law, experiencing prior female genital mutilation does not amount to ‘persecution’ that can lead to a successful claim for protection being brought under the Refugee Convention. Future risk of female genital mutilation may under certain circumstances constitute persecution. Whether the applicant belongs to a certain social group for the purposes of the Convention is determined in each case. In some cases, the court qualifies girls as being at risk of female genital mutilation if they are members of a particular social group. According to Abassade, after 2006, French immigration law became stricter, and fewer female genital mutilation applications succeeded in obtaining refugee status. Especially if the parents had been living in France for several years, and the girl child/children had been born in France, the claim was automatically rejected by the French Office for the Protection of Refugees and Stateless Persons (OFPRA).The Conseil d’Etat, the highest court in France, gave a new definition of the particular social group of those children facing female

genital mutilation, that these children ‘share innate characteristics’ which are ‘perceived as being different by the surrounding society.’

Thus, their parents, simply by opposing the practice of genital mutilation on their daughters, could not be considered as forming a particular social group unless they could demonstrate that they had fears of being persecuted themselves.[6] However, parents could never obtain protection based upon on future risk of genital mutilation of those daughters born in France even if they alleged that they would be persecuted themselves for opposing it. For parents to obtain refugee status (i.e. to be considered as members of a particular social group) their child would have to be born or conceived in their country of origin; also, they would have to publicly oppose female genital mutilation and be persecuted for their opposition to it. Otherwise, they would receive no protection. This has been referred to as a ‘bad practice’ by the European Parliament Directorate for Citizens Rights and Constitutional Affairs. Under French refugee law, then, when determining what is a ‘particular social group’ for female genital mutilation cases, a subjective test applies to parents while an objective test applies to girls. This amounts to a violation of other Convention rights, because children are separated from their parents, and this is considered not to be in the child’s best interest.

The UK approach is different: an asylum seeker’s family life in the UK may prevent removal but only in more exceptional cases. Parents are put into a difficult position: either to live in the home country, with their daughters being mutilated, or to be separated from her; and this is considered exceptional enough to secure family union. This is also clarified under the UNHCR Guidance Note in 2009 that ‘under certain circumstances, a parent could also establish a well-founded fear of persecution, within the scope of the 1951 Convention refugee definition, in connection with the exposure of his or her child to the risk of FGM.’ As Abbassade states, referring to French cases, ‘there is little justifica

tion for such discrimination ... and the position needs to be clarified in future cases.’[7]

Furthermore, in the case Matter of AT the French Board of Immigration Appeal decided that past female genital mutilation is not a basis for asylum. However, a woman who has been subject to female genital mutilation Type 1 or Type 2 may be cut again (Type 3 or 4). Thus, female genital mutilation is not a ‘one-time act’ but can be repeated. The UN Special Rapporteur on Torture submitted that the pain inflicted by female genital mutilation does not stop with the initial procedure but often continues as ongoing torture throughout a woman’s life. Women and girls who have already undergone genital mutilation before they seek asylum suffer permanent and irreversible harm of genital mutilation along with its deeply traumatic consequences, which renders return to the home country intolerable. Thus, women and girls who have already undergone genital mutilation before they seek asylum may still qualify for refugee status under the Refugee Convention if they can establish a ‘well-founded fear’ of persecution. This was acknowledged in the USA case of Bah v Mukasey (2008). However, in many European countries, such as France, Hungary, Malta, Romania, Spain and Sweden, past female genital mutilation is not considered as amounting to persecution in itself. The approach to past female genital mutilation varies from state to state: for example, in Italy it depends on the individual facts of the case, and past female genital mutilation does not result in an automatic refusal of the application. In the UK, it is not generally considered to constitute future risk of persecution, but this can be rebutted by objective evidence and expert reports in particular circumstances, where, for example, female genital mutilation forms part of a ritual for the applicant to become a sowei (a woman responsible for performing female genital mutilation).

Further female genital mutilation may also imply other forms of persecution: for instance, it may follow a forced marriage. Belgium, for instance, does

recognise past female genital mutilation as part of a future risk when it is associated with other types of harm, such as forced marriage.[8] In the US case of Re Kasinga?61 the board of Immigration Appeals found that a young woman who escaped forced marriage had a well-founded fear of female genital mutilation as a form of persecution in her home country, Togo.

Case law across countries suggests that a different approach to the definition of specific social groups is adopted in female genital mutilation cases when considering the Refugee Convention. This may end up inconsistent decisions being delivered failing to protect those who really need protection from serious harm related to female genital mutilation.

  • [1] UNHCR, ‘Guidelines on International Protection No 2: “Membership of a Particular Social Group” within the Context of Article 1A(2) of the 1951 Convention and/or Its 1967 Protocol Relating to the Status of Refugees’ UN doc HCR/GIP/02/02 (7 May' 2002) paras 7 and 11. 2 UNHCR Guidelines on International Protection No 1: Gender-Related Persecution Within the Context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol Relating to the Status of Refugees, HCR/GIP/02/01(7 May 2002) paras 9 and 13. 3 Ibid. 4 Ibid.
  • [2] Ibid. 2 UNHCR Guidance Note on Refugee Claims Relating to Female Genital Mutilation (Geneva May 2009) para 1. 3 UNHCR, Guidelines on International Protection No. 1: Gender-Related Persecution within the Context of Article 1A(2) of the 1951 Convention and/or Its 1967 Protocol Relating to the Status of Refugees, HCR/GIP/02/01 (7 May 2002) para 6. 4 Secretary of State for the Home Department i> /<; Fornah v Secretary of State for the Home Department [2006] UKHL 46 ( 18 October 2006) para 84. 5 Re Fauziya Kasinga (1996) No A73 476 695 1996 BIA LEXIS 15 (BIA, June 13, 1996). 6 Fornah v Secretary of State for the Home Department [2006] UKHL 46.
  • [3] Ibid, paras 31 and 6. 2 Ibid, per Lord Bingham of Cornhill at para 31. 3 Islam (AP) v Secretary of State for the Home Department Repina v Immigration Appeal Tribunal and Another Ex Parte Shah (AP) (Conjoined Appeals) [ 1999] 2 AC 629, [ 1999] 2 All ER 545. 4 Ibid. 5 S Mullally, ‘Reforming Laws on Female Genital Mutilation in Ireland: Responding to Gaps in Protection’ (2010) 32 Dublin University Law Journal 243. 6 Ж (Кс«глД2008] EWCA119. 7 MD (Women) Ivory Coast CG [2010] UKUT 215 (IAC).
  • [4] UNHCR, ‘Too Much Pain; Female Genital Mutilation and Asylum in the European Union—A Statistical Update’ (March 2014) 2. 2 IAA Asylum Gender Guidelines UK (Gender Guidelines) (November 2000) 3. 3 UK Visas and Immigration, Gender Issues in the Asylum Claim: Process (2010) para 2.2 accessed 10/3/2017. 4 Ibid.
  • [5] UNHCR, Guidelines on International Protection No 1: Gender-Related Persecution Within the Context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol Relating to the Status of Refugees, HCR/GIP/02/01 (7 May 2002) para 6. 2 Re E (FGM and Permission to Remove) [2016] EWHC 1052 (Fam) asylum claim failed on the grounds of lacking credibility. In the case of CM (Kenya) v Secretary of State for the Home Department [2007] EWCA Civ 312, where the claim succeeded. 3 Despite the UNHCR Guidelines on International Protection No 1: Gender-Related Persecution within the Context of Article 1A(2) of the 1951 Convention and/or Its 1967 Protocol Relating to the Status of Refugees, HCR/GIP/02/01 (7 May 2002) paras 9 and 13. 4 CE, 21 December 2012, No 332492 and CE, 21 December 2012, No 332607. 5 OFPRA, rapport d’activite 2009, L Abassade, 'Female Genital Mutilation and the Asylum Claim in France: What Rights, What Legal Protection?’ (2015) 29(3) Journal of Immigration, Asylum and Nationality Law 6.
  • [6] CE 2 et 7 sous sections reunuies, 20 November 2013, No 368676; L Abassade, ‘Female Genital Mutilation and the Asylum Claim in France: What Rights, What Legal Protection?’ (2015) 29(3) Journal of Immigration, Asylum and Nationality Law 7. 2 Illustrated in cases CNDA (5 May 2014), No 14000223 and 14000224; CDDA (29 April 2014), No 12032849; CNDA (6 May 2014), No 12007648. 3 European Parliament Directorate General for Internal Policies, Gender-Related Asylum Claims in Europe, (2012) 37. 4 L Abassade, ‘Female Genital Mutilation and the Asylum Claim in France: What Rights, What Legal Protection?’ (2015) 29(3) Journal of Immigration, Asylum and Nationality Law. 5 Article 8 ECHR (right to family rights) the unity of the family of the refugee is a principle in international and a humanitarian law under the UNHCR. Also, the UN Convention on Rights of the Child is engaged (family reunification is a cornerstone right of a child, Article 22 (2)). 6 Huang v Secretary of State for the Home Department [2МУ7] UKHL 11. 7 UNHCR Guidance Note on Refugee Claims Relating to Female Genital Mutilation, Geneva May 2009, para 1.
  • [7] L Abassade, ‘Female Genital Mutilation and the Asylum Claim in France: What Rights, What Legal Protection?’ (2015) 29(3) Journal of Immigration, Asylum and Nationality Law 7. 2 Matter of AT 24.1 & N Dec. 296 (BIA 2007). 3 UNHCR, ‘Too Much Pain; Female Genital Mutilation and Asylum in the European Union—A Statistical Update’ (March 2014) 2. 4 UNGA, ‘Report of the Special Rapporteur Manfred Nowak on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment’ UN doc A/HRC/7/3 (15 January 2008) para 51. 5 Parliamentary Assembly of the Council of Europe (PACE), ‘Report on Gender-Related Claims for Asylum’ doc 12350 (26 July 2010) 12. 6 UNCHR, Guidance Note on Refugee Claims Related to Female Genital Mutilation (May 2009) para 1. 7 Bah >> Mukasey, 529 F.3d 99 (2d Cir. 2008). 8 European Parliament Directorate General for Internal Policies, Gender-Related Asylum Claims in Europe, (2012) 37. 9 Ibid.
  • [8] Ibid. 2 Re Kasinga 21 I and N 337 (BIA 1996). 3 P J Kea and G Roberts-Holmes, ‘Producing Victim Identities: Female Genital Mutilation and the Politics of Asylum Claims in the United Kingdom Pamela’ (2013) 20(1) Identities: Global Studies in Culture and Power 110. 4 Right to Remain, Campaigning Toolkit: An Aid to Understanding the Asylum and Immigration System in the UK, and to Campaigning for the Right to Remain (2nd edn, Right to Remain 2013) 50 (updated and expanded version was published in March 2016). 5 See the decision in the case of Soering v United Kingdom Application no 14038/88 (ECtHR, 07 July 1989). 6 House of Lords decision in Ullah i> Special Adjudicator [2004] UKHL 26.
 
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