FGM/C Case Law and other Legal Documents

Please note this is a work in progress

Australia

In RRT Case No. 0808751 [2009] the Australian Refugee Review Tribunal reviewed the decision to refuse to grant the applicant, a citizen of Uganda, a Protection visa on grounds of fear of of FGM/C upon return to Uganda. The Tribunal found that the aplicant should be granted protection based on the Convention ground of membership of a particular social group. 

In RRT Case No. 1101038 [2011] the Australian Refugee Review Tribunal reviewed the decision to refuse to grant the applicant, a citizen of Uganda, a Protection visa on grounds of fear of being subjected to forced marriage and FGM/C upon return to Uganda. The Tribunal found that the aplicant should be granted protection since in Uganda she 'would be persecuted for reasons of her membership of a social group, namely that of [uncut] female members of the Sabiny tribe'.

Austria

In Case Regarding Female Genital Mutilation of a Cameroonian Woman [2002], the appellant was granted refugee status on grounds of membership of a particular social group, namely 'Cameroonian women who are to be mutilated'. 

In Case Regarding Female Genital Mutilation of an Ethiopian Baby Girl [2002] a 14-month-old child from Ethiopia was granted asylum by the Austrian second instance asylum authority, the Independent Federal Asylum Senate (IFAS), on account of her fear of being subjected to FGM/C. The positive decision was based on well-founded fear of persecution for her membership of a particular social group, namely 'Ethiopian women who are to be mutilated'. 

O. I. M. et. al. v. Federal Asylum Review Board (FARB) [2007] dealt with a complaint against the refusal to grant refugee status on grounds of fear of FGM/C. The first complainant is the second through fourth complainants’ mother. They are all Somali nationals. The first complainant’s husband, who is the father of the further complainants, had been granted subsidiary protection in 2004. Because the mother feared her daughters would undergo FGM/C in Somalia, they fled to Kenya and applied for international protection at the Austrian Embassy in Nairobi. The Federal Asylum Agency (FAA) denied the application for international protection in the first instance administrative procedure. However, the complainants were granted subsidiary protection status and limited right of residence. The FARB, as the second instance administrative authority, held the view that the first complainant only pretended to fear her daughters’ FGM/C and that the complainants were not able to show credibly that the claimed escape reasons were true. The FARB’s decision was repealed for unlawfulness because of violation of procedural rules. 

Belgium

In Council for Alien Law Litigation, 24 June 2010, Nr. 45.395, the applicant claimed to be a Somali national from Mogadishu, she filed an application for asylum together with her three minor children. The application was refused because it was considered not credible that she held Somali nationality. A year later she filed a second application and argued for the first time that she feared her daughter would be subject to forced FGM/C in case of return to Somalia. The Office of the Commissioner General for Refugees and Stateless Persons (CGRS) rejected the application, on the grounds that the fear of her daughter’s circumcision could only be accepted when the identity and nationality of the applicants were proven, which was not the case. The CGRS had no doubt that the applicant was of Somali origin, but questioned her claimed origins in Mogadishu and her Somali nationality. The applicant filed an appeal against this decision. In its decision the CALL held that FGM/C is an act of persecution in accordance with Belgian law ('acts of physical or mental violence, including sexual violence or acts of a gender specific or child specific nature'). Opposition to gender discriminating social customs and cultural norms, which can lead to acts of persecution, was considered by the CALL as the expression of a political opinion. The CALL accepted that the applicant had a well-founded fear of persecution on the basis of her political opinion.

Arrêt n° 45 823 [2010]

In Council for Alien Law Litigation, 29 April 2011, Nr. 60.622, the applicant, of Guinean nationality, filed an asylum application based on two grounds: (1) the fact that her aunt, with whom she was living, had arranged a wedding for her and that the applicant wanted to escape from a forced marriage, and (2) the fact that her aunt wanted her to undergo another act of FGM/C because of that wedding (the excision she had undergone as a child was not done 'properly' and, in view of the marriage, it needed to be redone).
In the case at hand the CALL believed that the reality of both the forced marriage and the second excision that the applicant was trying to escape were sufficiently established in the light of her statements and the elements of the file. The alleged acts constituted threats of persecution, based on the applicant’s belonging to a particular social group, i.e. the group of women. Refugee status was granted to the applicant.

Arrêt n° 71 365 [2011]

In Arrêt n° 89 927 [2012] a Guinean woman who had experienced FGM/C in the form of infibulation was granted refugee status on grounds of a fear of being reinfibulated if she returned to her country of origin.

Canada

In Faustina Annan v. Minister of Citizenship and Immigration of Canada [1995] a Ghanaian woman was granted refugee status on grounds of fear of FGM/C due to insufficient state protection and infeasibility of internal relocation.

Ndegwa v. Canada (Minister of Citizenship and Immigration) [2006] dealt with a Kenyan man who claimed asylum on grounds of fear of persecution in Kenya due to refusing to have FGM/C performed on his daughter. HIs wife and daughter were granted refugee status, the man was initially refused but then given status upon review.

Court of Justice of the European Union 

In Opinion of Advocate General Bot, delivered on 19 April 2012, Bundesrepublik Deutschland v. Y (C-71/11), Z (C-99/11), C-71/11 and C-99/11 the Court states that when 'a woman is at risk of being subjected to forced genital mutilation [...] there is plainly and unanswerably an act of persecution. The suffering liable to occur is, in itself, serious and irreparable, and the inability of a State to protect its citizens from such abuses necessitates international protection.'

European Court of Human Rights (ECtHR) 

In Collins and Akaziebie v. Sweden [2007] a Nigerian woman who had claimed asylum in Sweden for herself and her daughters on grounds of fear of FGM/C, and was refused in several proceedings, invoked Article 3 of the European Convention on Human Rights. The Court held that the applicants had 'failed to substantiate that they would face a real and concrete risk of being subjected to female genital mutilation upon returning to Nigeria.' 

In Izevbekhai and Others v. Ireland [2011] a Nigerian woman who had claimed asylum in Ireland for herself and her daughters on grounds of fear of FGM/C, which was refused, invoked Article 3 of the European Convention on Human Rights, as well as Articles 6, 13 and 14. The Court held that the applicants had 'failed to substantiate that the second and third applicants would face a real and concrete risk of treatment contrary to Article 3 of the Convention upon return to Nigeria.' The complaints on grounds of Articles 6, 13 and 14 were likewise rejected.

In Ameh & Others v. UK [2011] a Nigerian woman who had claimed asylum in the UK for herself and her daughters on grounds of fear of FGM/C, which was refused, invoked Article 3 of the European Convention on Human Rights. The complaint was held to be ill-founded and was rejected.  

In Omeredo v. Austria [2011] a Nigerian woman who had claimed asylum in Austria on grounds of fear of FGM/C, which was refused, invoked Article 3 of the European Convention on Human Rights. Her complaint was rejected. 

In Sow v. Belgium [2013] a Guinean woman who had claimed asylum in Belgium on grounds of fear of FGM/C (reexcision), which was refused, invoked Article 3 of the European Convention on Human Rights, as well as Articke 13. The Court forwarded the application to the Belgian Government and put questions to the parties under Article 3.

In Bangura v. Belgium [2014] a Sierra Leonean woman who had claimed asylum in Belgium on grounds of fear of FGM/C, which was refused, invoked Article 3 of the European Convention on Human Rights. The Court forwarded the application to the Belgian Government and put questions to the parties under Article 3.

France

In Miss K and Miss D (FGC) v. France (CNDA - National Court of Asylum) [2009] the applicant (Miss K) who was under age and her mother (Miss D) sought asylum in France based on the claim that Miss K would be subject to FGM/C if she returned her to country of origin, Mali, and that her mother would be unable to protect her from this mutilation. The court recognized that if the applicant were to return to Mali, due to her young age she would be subject to FGM/C without being able to benefit from the protection of authorities in her country of origin, and accepted her claim. Her mother was granted asylum as well, on the basis that the child could not be separated from her mother.

CNDA, 29 July 2011, Miss O., n°10020534 dealt with the case of an applicant from Wali, in the Delta State, Nigeria. She opposed a forced marriage and FGM/C that her mother in law wanted her to undergo. She escaped from the family house and met a woman who offered her work in Europe as a hairdresser. She ended up in Spain where she was forced to prostitute herself for several months before she fled to France. The French Office for the Protection of Refugees and Stateless Persons (Ofpra) rejected her asylum application. She challenged this decision before the National Asylum Court (Cour nationale du droit d’asile, CNDA). The CNDA considered that the facts relating to the fear of being subjected to a forced marriage and to FGM/C were not established. However, the applicant was granted subsidiary protection because she would face inhuman or degrading treatment in case of return to their country of origin.

Council of State, 21 December 2012, No. 332491 dealt with the case of an applicant who requested the Council of State to set aside the decision of the National Asylum Court (CNDA) refusing refugee status for her minor daughter born in France, and to recognise the latter’s refugee status due to the risk of FGM/C in the event of a return to her country of origin. The Council of State held that, in making recognition of refugee status as a member of a social group dependent on the person expressing their membership of that group, the CNDA had made a decision that was void for error of law in relation both to the definition of the social group and to the establishment of a proven link between that person and the group. The case was referred back to the CNDA.

In CE, 21 décembre 2012, N° 332492 and CE, 21 décembre 2012, N° 332607 the court qualified a girls at risk of FGM/C as a member of a particular social group.

 

Hungary

The Metropolitan Court, 16 January 2009, L.M.N. v. Office of Immigration and Nationality, 17.K.32.826/2007/15 dealt with the case of a Kenyan applicant who was a potential victim of FGM/C and she faced forced marriage upon return. Both the asylum authority and the court accepted that the applicant could be subject to persecution on the ground of membership of a particular social group; however, the Metropolitan Court examined the possibility of internal relocation and actors of protection. The court found that, according to country of origin information submitted by the OIN, there were several national and international centres offering support where women could ask for assistance in order to find protection. The court found it was established that upon return to her country of origin she could receive accommodation, food and support. The Court decided that even if there was a risk of persecution in case of a return to the country of origin, the applicant could reasonably be expected to relocate internally as it was feasible in the circumstances.

Ireland

In K.A.-R. & Ors v. Refugee Appeals Tribunal & Ors [2009] the Irish High Court dismissed the claims of a Ghanaian mother and daughter who sought refugee status on grounds of fear of FGM/C.

Italy

Sentenza 27 novembre 2012 deals with the case of a Nigerian woman, who applied for asylum in Italy having escaped an attempt of FGM/C. Her asylum application was rejected as was an appeal due to alleged lack of credibility. She appealed again and the Court granted her refugee status on grounds of gender-based persecution and to protect her family being exposed to FGM/C. 

Cagliari Court, 3 April 2013, No. RG 8192/2012 dealt with the case of a Nigerian woman who fled to Italy in order to avoid genital mutilation prior to an arranged marriage. The court held that FGM/C should be considered as an act of gender-based persecution. In addition, as FGM/C is widespread in Nigeria despite legal sanctions against the practice, it can be reasonably assumed that it would not be possible for the Applicant to receive any protection in her country of origin.

Spain

In Recurso 1342/2007, Merit's Courts, Juzgado de Instruccion núm 2 de Girona, 20/06/2007 a Gambian national wanted to travel to the Gambia with her three year old daughter so that FGM/C could be perfomed on the girl, against the will of the woman's husband. The court prohibited the mother from leaving Spain with her daughter.

Sweden

The Migration Court of Appeal, 12 October 2012, UM 1173-12 dealt with the case of three underage girls seeking asylum in Sweden and claiming that they risked FGM/C if they returned to their home country, Somalia. The Migration Court of Appeal found it likely that the parents could not protect the girls against FGM/C on a return to Somalia, so the Court found their fear of being exposed to gender-based persecution to be well-founded. The girls were granted refugee status.

Uganda

In Law & Advocacy for women in Uganda v. Attorney General (Constitutional Petition No. 8 of 2007), the court declared the custom of FGM/C to be void since it is inconsistent with the Ugandan Constitution.

United Kingdom

In DI (IFA - FGM) Ivory Coast v. Secretary of State for the Home Department [2002] a 24-year-old woman from Ivory Coast appealed to the Immigration Appeal Tribunal against the decision to refuse her asylum claim on grounds of fear of FGM/C. She claimed that her sisiter had died from FGM/C and that her mother, the head of the group of village women who perform FGM/C, nevertheless insists she undergo the procedure. The appelant had avoided FGM/C in the past by living elewhere in Ivory Coast for the time during which FGM/C is traditionally performed. It was held that the woman's claim was incredible, among other things, due to her age, that she had an internal relocation alternative and that sufficient ptotection was available in Ivory Coast. Thus, the appeal was dismissed. 

In Johnson v Secretary Of State For The Home Department [2004] (case citation: 2005 S.L.T. 393) a woman from Sierra Leone petitioned for judicial review of a decision by the immigration appeal tribunal refusing her leave to appeal against the dismissal by an adjudicator of her appeal against the Home Secretary's decision to refuse her application for asylum. The woman argued that the adjudicator had failed to consider whether her daughters were members of a particular social group which was at a real and substantial risk of persecution because of the practice of FGM/C. Further, he had failed to consider whether her daughters would be subjected to inhuman and degrading treatment in terms of Article 3 of the European Convention on Human Rights. The petition was dismissed.

In RM (Sierra Leone - Female Genital Mutilation - Membership of a Particular Social Group) Sierra Leone v. Secretary of State for the Home Department [2004] a woman from Sierra Leone appealed to the IAT against the decision of an adjudicator dismissing both her asylum and Article 3 claims made on grounds of fear of FGM/C. The appeal was dismissed since the IAT found she was not a member of a particulat social group.

In NK (FGM - Cameroon) Cameroon v. Secretary of State for the Home Department [2004] a 30-year-old Cameroonian woman whose asylum claim based, among other things, on fear of FGM/C had been refused appealed to the Immigration Appeal Tribunal (IAT) against the decision of an adjudicator to dismiss her appeal against the decision giving directions for removal following the refusal to grant asylum. The appeal was dismissed and it was held that there was no serious risk of harm if she returned, that FGM/C was not normally perfomed on women her age and that she could safely relocate to a Christian area of Cameroon.

In 'P' and 'M' v. Secretary of State for the Home Department [2004] an 18-year-old woman from Kenya appealed to the Court of Appeal against the decision of the IAT to refuse her asylum claim on grounds of fear of FGM/C. The woman's father had joined the Mungiki sect in Kenya and performed FGM/C on the woman's mother (who died as a result) and sister. It was held that the decision of the adjudicator to grant asylum had been correct and that women in Kenya formed a social group, there was no internal relocation alternative and no sufficient state protection available. The appeal was allowed.

In JM (Sufficiency of Protection - IFA - FGM) Kenya v. Secretary of State for the Home Department [2005] a Kenyan woman appealed against the decision of an adjudicator to dismiss her appeal against the decision of the Secretary of State to refuse her application for asylum. Her family having joined the Mungiki they tried to force her to convert aswell, marry and undergo FGM/C. It was held that sufficient protection from the Mungiki was available and that she could relocate within Kenya. The appeal was dismissed.

In VNM v Secretary of State for the Home Department [2006] a Kenyan woman appealed against the decision of the IAT stating that she had an internal relocation alternative and could therefore be returned. The woman had claimed asylum on grounds of fear of being subjected to FGM/C by her boyfriend and other members oft the Mungiki sect who had previously raped her, as a result of which she became pregnant. She reported the rape to the police as well as the disappearance of her mother and sister which she attributed to the Mungiki, but received no assistance. She fled to the UK where she gave birth to a daughter. The Court of Appeal set aside the tribunal's determination and remitted the case for fresh hearing by the IAT.

In Fornah v. Secretary of State for the Home Department [2006] UKHL 46 a woman from Sierra Leone appealed against the decision to refuse asylum claimed on grounds of fear of FGM. She claimed asylum as a member of a particular social group, namely young Sierra Leonean women. The House of Lords held that FGM/C 'constituted treatment capable of amounting to persecution under the [Refugee] Convention'  since that practice, although accepted in Sierra Leone as an initiation rite into adulthood, was an extreme expression of discriminatory treatment based on institutional inferiority to which women in that country were subjected'. Thus the woman 'could establish membership of a particular social group within the meaning of article 1A(2) ; that group was properly defined, narrowly, to exclude those who through initiation were no longer at risk of undergoing the practice, as uninitiated indigenous females in Sierra Leone, since their intactness was a common characteristic, perceived as such by society and not defined by reference to the feared persecution.' The 'particular social group was also properly defined more widely as women in Sierra Leone including those who had suffered initiation, since such a group shared the common, immutable characteristic of social inferiority as compared with men, existing irrespective of the practice and not defined by reference to it.'

In SK (FGM - Ethnic Groups) Liberia v. Secretary of State for the Home Department [2007] a Liberian woman who had sought asylum on grounds of fear of herself and her daughter having to undergo FGM/C upon return to Liberia, which was refused, appealed to the Asylum and Immigration Tribunal. In the decision it was held that '[w]omen in Liberia belonging to those ethnic groups (or sub-groups) where FGM is practised are a particular social group for the purposes of the 1951 Geneva Convention' but that the appelant had  not been able to prove that she belonged to such a group or that she would be required by people in a position of power and influence over her to undergo FGM. 

In CM (Kenya) v Secretary of State for the Home Department [2007] a woman from Kenya whose asylum claim on grounds of fear of FGM/C had been refused appealed against the decision that it would be reasonable for her to relocate in Nairobi. The appeal was allowed since the tribunal had failed to deal with expert evidence outlining that her father would be able to find her in Nairobi and subject her to FGM/C, and that it was therefore dangerous for her to relocate in Nairobi.

In FK (FGM - Risk and Relocation ) Kenya v. Secretary of State for the Home Department [2007] a Kenyan woman who had sought asylum on grounds of fear of death, persecution and forceful FGM/C by the Mungiki sect for herself and her daughter, a claim which was refused, appealed to the Asylum and Immigration Tribunal. The appeal was dismissed and the Tribunal held that there was no well-founded fear of persecution and that internal relocation was possible. (Guidance superseded in VM (FGM - Risks - Mungiki - Kikuyu/Gikuyu) Kenya v. Secretary of State for the Home Department [2008]). 

In FM (FGM) Sudan v. Secretary of State for the Home Department [2007] a Sudanese woman and her four children, whose aplication for leave to remain on grounds of the woman's political opinion and a fear of her two daughters of undergoing FGM/C if returned to Sudan, was refused appealed to the Asylum and Immigration Tribunal. The appeal was allowed on asylum grounds and on human rights grounds for the woman and her two daughters and on human rights grounds (Article 8) for her two sons.

In FK (Kenya) v. Secretary of State for the Home Department [2008] a Kenyan woman who had sought asylum on grounds of fear of death, persecution and forceful FGM/C by the Mungiki sect for herself and her daughter, which was refused, appealed to the Court of Appeal against the finding by the Asylum and Immigration Tribunal ([2007] UKAIT 00041) that she could safely relocate within Kenya. The Court remitted the case to the AIT so that it could determine the reasonableness of internal relocation.

In CM (Kenya) v. Secretary of State for the Home Department [2008] a woman from Kenya whose asyulm claim on grounds of fear of FGM/C had been refused, had her case remitted to the AIT by the Court of Appeal. The AIT in 2007 again dismissed the applicant’s appeal, both on asylum and on human rights grounds. She then asked the Court of Appeal for permission to appeal the new decision. Permission was refused as it was held that the Immigration Judge had not erred in finding that it would not be unreasonable or unduly harsh for the woman to relocate to Nairobi.

In VM (FGM - Risks - Mungiki - Kikuyu/Gikuyu) Kenya v. Secretary of State for the Home Department [2008] a Kenyan woman who had appealed against the decision of the IAT stating that she had an internal relocation alternative and could therefore be returned and was thus allowed a fresh hearing at the IAT, was granted asylum. The woman had claimed asylum on grounds of fear of being subjected to FGM/C by her boyfriend and other members oft the Mungiki sect who had previously raped her, as a result of which she became pregnant. She reported the rape to the police as well as the disappearance of her mother and sister which she attributed to the Mungiki, but received no assistance. She fled to the UK where she gave birth to a daughter. Upon resoncideration the AIT found that she and her daughter could not relocate anywhere in Kenya as there is no sufficiency of protection available to her anywhere in Kenya. She was granted refugee status and the guidance supersedes that in FK (FGM – Risk and Relocation) Kenya CG [2007] UKAIT 00041

In FB (Lone women - PSG – internal relocation – AA (Uganda) considered) Sierra Leone [2008] a woman from Sierra Leone turned to the AIT for the recinsideration of an appeal against the decision of to refuse her asylum claim. She had undergone FGM/C at the age of 16 and was to replace her mother as sowei, as well as marry the village chief. Even though it was held that she belonged to a particular social group 'by her resistance to accepting the prevailing cultural norms in her own rural society', and that she had 'established a risk of harm in her home area', her claim was dismissed because it was firther held that she could safely relocate to Freetown.

In AD (Guinea) v Secretary of State for the Home Department [2009] a woman from Guinea appealed the decision by the AIT that she could safely relocate within Guinea and was therefore not entitled to asylum. She had claimed asylum due to a fear that upon return, her daughter would be forced by AD's husband and his family to undergo FGM/C. Her first daughter had died as a result of FGM/C. The appeal was, however, dismissed because the appelant had claimed asylum under a false identity.

In AMM and others (conflict; humanitarian crisis; returnees; FGM) Somalia v. Secretary of State for the Home Department [2011] appelant MW, a Somali woman, tried to show 'that she is a refugee on the basis of the real risk that her daughter would be circumcised'. This claim was dismissed as 'appellant MW is highly likely either to be the perpetrator of such mutilation or to procure it from others'. However, she was granted refugee status for other reasons. 

In LO (Kenya) v Secretary of State for the Home Department [2011] a Kenyan woman who has claimed asylum on grounds of fear of FGM/C upon return applied for Judicial Review of the Secretary of State's decision that the further representations she had submitted did not create a realistic prospect of success before another Immigration Judge. The woman had been raped and beaten by members of the Mungiki sect after her boyfriend had joined this sect. The further representations were expert opinions on the threat posed to her by the Mungiki. The Secretary of State's decision was reduced since the Secretary of State had not applied anxious scrutiny to the further representations.

In R on the Application of Cham v Secretary of State for the Home Department (EWCA Civ 1452 ) [2011] a woman from the Gambia appealed to the Court of Appeal against the refusal of the Administrative Court to grant a stay of removal directions. She was a 'mature lady' and married but was afraid of having to undergo FGM/C upon return. Removal directions were stayed because it was unclear whether relocation was possible and because gender specific issues had not been considered.

In K and others (FGC) The Gambia CG v. Secretary of State for the Home Department [2013] two sets of appellants from the Gambia, a girl and her parents (K, J and Miss K) and a lone girl (AS), sought asylum on grounds of risk of FGM/C on return to the Gambia. They successfully appealed the decision to refuse asylum. It was held that Miss K would not have effective state protection and could not avoid FGM/C by relocating and that AS could not safely recolate, either.

United States

In re Fauziya Kasinga [1996] concerned a Togolese woman's asylum claim on grounds of fear of FGM/C, which, though initially refused, was granted by the Board of Immigration Appeals.

Nwaokolo v. INS  [2002]. The applicant (Ms. Nwaokolo) was granted asylum because of the risk that her daughter would be forced to undergo FGM/C if returned to Nigeria. Ms. Nwaokolo legally entered the United States in the early 1980s and since 1996, by then the mother of two sons and a daughter, had begun efforts to obtain permission to remain in the US. Her final appeal in 2002, and after she had given birth to second daughter, was accepted.

Abay v. Ashcroft [2004] granted refugee status to the parent of children in danger of being forced to undergo FGM/C. This Federal decision permitted the parent to seek relief based on the psychological suffering she would endure if her daughter were subjected to FGM/C. According to the court, the consequences of having her daughter mutilated would cause this Ethiopian woman mental suffering sufficient to constitute persecution. The claim was also accepted on the basis on the child’s fear of FGM/C.

In Balogun v. Ashcroft [2004] a Nigerian woman's asylum claim on grounds of fear of FGM/C was denied by the Board of Immigration Appeals and on appeal.

In Niang v. Gonzales [2005] a Senegalese woman's asylum claim on grounds of past persecution in the form of FGM/C, was denied by the Board of Immigration Appeals and on appeal.

In Abebe and Another v. Gonzales [2005] an Ethiopian man and woman who had claimed asylum for themselves and their daughter on grounds of fear that upon return FGM/C would be perfomed on the girl, made a petition for review of the refusal of their claim. Review was granted.  

In Hassan v. Gonzales [2007] a Somali woman petitioned for review of an order of the Board of Immigration Appeals (BIA) affirming a denial of her application for asylum. She had asked for asylum on grounds of, among other things, having undergone FGM/C and the fearthat her daughters would be forced to undergo it aswell upon return to Somalia. The petition for review was granted.

In Matter of S-A-K- and H-A-H- [2008] the United States Board of Immigration Appealsheld that a mother and daughter from Somalia who provided sufficient evidence of past persecution in the form of FGM/C with aggravated circumstances were eligible for a grant of asylum based on humanitarian grounds, regardless of whether they can establish a well-founded fear of future persecution. 

In Bah v. Mukasey, Diallo v. Department of Homeland Security, Diallo v. Department of Homeland Security [2008] three Guinean women petitioned for review of decisions of the Board of Immigration Appeals (BIA) affirming conclusions that petitioners were not eligible for withholding of removal based on the FGM/C they suffered in the past. Review are granted in part and dismissed in part with respect to the claims relating to FGM/C.

In Matter of A-T- [2008] the Attorney General vacated the decision of the Board of Immigration Appeals and remanded the case of a woman from Mali who had suffered FGM/C in the past for reconsideration of questions relating to the eligibility for withholding of removal. 

In Manani v. Mark R. Filip [2009] a woman from Kenya petitioned for review of a decision of the Board of Immigration Appeals (BIA) denying her application for asylum, withholding of removal, and protection under Article 3 of the Convention Against Torture on grounds of, among other things, being opposed to FGM/C being performed on her daughters. The petition was denied. 

In Gatimi et al. v. Holder [2009] the Attorney General vacated the order to remove a Kenyan man, his wife and their daughter from the United States and remanded case to the Board of Immigration Appeals for further proceedings. The family had sought asylum on grounds of persecution by the Mungiki, including, among other things, fear of FGM/C.

In Benyamin et al. v. Holder [2009] an Indonesian man petitioned for review of the Board of Immigration Appeals’ (BIA) denial of his (and his wife's and their three children's) application for asylum, withholding of removal, and relief under the Convention Against Torture. He asserted, among other things, that his older daughter had been subjected to FGM/C in Indonesia without his or his wife's consent and feared that his younger daughter would also be subjected to FGM/C if returned. The petition for review was granted.  

In Kourouma v. Holder [2009] a Guinean woman appealed the denial of her application for asylum, withholding of removal, and protection under the Convention Against Torture by the Board of Immigration Appeals (BIA). She had suffered past persecution in the form of FGM/C and her petition for review was granted.

In Kone v. Holder [2010] a woman from Ivory Coast petitioned for review of a final order of the Board of Immigration Appeals affirming the decision to deny her application for asylum, withholding of removal, and relief under the Convention Against Torture. The woman feared that her daughters would be forcibly subjected to genital mutilation against her wishes if she were removed. The petition for review was granted.

In Fesehaye v. Holder [2010] an Ethiopian woman of Eritrean nationality sought asylum, withholding of removal and protection under the Convention against Torture. She had undergine FGM/C as a child. The petition was denied.  

In re Gatimi [2010] dealt with the case of a Kenyan man, his wife and their daughter, which had been remanded to the Board of Immigration Appeals for further proceedings (see Gatimi et al. v. Holder [2009]). Among other things, it was held that 'the female respondent was eligible as a derivative claimant and that the only evidence of record establishes that she will be subjected to female genital muti lation if she is returned to Kenya.' The appeal was allowed.

Matter of A.T. [2011] the application for withholding of removal of a woman from Mali who had suffered FGM/C in the past was granted (see also Matter of A-T- [2008]). It was held that she was a member of a particular social group and that relocation within Mali was not reasonable.

In Seck v. Holder [2011] a Senegalese woman petitioned for review of the Board of Immigration Appeals’ final order, which affirmed a decision to deny her application for withholding of removal. The woman feared to be beaten or killed for attempting to protect her U.S. citizen daughter from being subjected to FGM/C. The petition for review was granted.

 

Convention on the Elimination of Discrimination Against Women (CEDAW) (1979)

CEDAW defines what constitutes discrimination against women and sets up an agenda for national action to end such discrimination. Articles 1 (on discrimination) and 12 (on health) are particularly relevant with respect to FGM/C. The CEDAW General Recommendation No. 14: Female Circumcision (1990) resommends strategies for the eradication of FGM/C.  

Convention on the Rights of the Child (1989)

FGM/C is often practiced on underage girls, therefore the practice violates children’s rights as defined by the Convention on the Rights of the Child (CRC), particularly the right to be free from discrimination (Article 2), the right to be protected from physical mental violence (Article 19), the right to enjoy the highest attainable standard of health (Article 24) and freedom from torture or other cruel, inhuman or degrading punishment (Article 37).

Council of Europe Convention on preventing and combating violence against women and domestic violence (Istanbul Convention) (2011)

The Istanbul Convention is a convention against violence against women and domestic violence. Article 38 deals specifically with FGM/C.

Directive 2011/95/EU of the European Parliament and of the Council on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted (2011)

FGM/C is mentioned in Article 30 in the context of introducing a common concept of the persecution ground ‘membership of a particular social group’.

Directive 2013/33/EU of the European Parliament and Council laying down standards for the reception of applicants for international protection (2013) 

Chapter IV, Provisions for vulnerable persons (Article 21) mentions FGM/C.

 

FGM/C Resources by Country:

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