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Women's ASYLUM NEWS women’s asylum news refugee women’s resource project @ asylumaid issue number 52 july/august 2005 also in this issue UK Court of Appeal deplorable Other UK news decision on asylum claim re FGM p. 6 Gay Muslim wins right to appeal, etc. and MPSG RWRP project & other news p. 9 Gender persecution monitoring project Many amongst us in the field of gender- related persecution were shocked to read UK events & projects the determination by Auld LJ and p. 11 Chadwick LJ1 regarding the question of whether a woman who fears being International news from Uganda, Russia, subjected to female genital mutilation Guatemala, Iraq, etc. (FGM) in her country of origin and claims from p. 14 asylum on the ground of membership of a particular social group (MPSG) under International events & projects the Refugee Convention should be p. 18 granted refugee status. New publications international & UK from p. 20 The initial decision 15 year-old Zainab Fornah claimed New resources asylum on arrival in March 2003 on the from p. 24 basis of her fear that as a member of a particular social group defined as ‘young Notice board Sierra Leonean women’ she would be p. 26 subjected against her will to female If you want to subscribe to our free bulletin genital mutilation if she returned to her ‘women’s asylum news’ by post or by email, country of origin. One month later, her please contact Malak Bagher-Niakan, email claim for asylum was refused for two [email protected] or tel: 0207 377 main reasons: a) the practice did not 5123. For details of all of our publications come within the definition of persecution to download or order) please go to: under the Refugee Convention because www.asylumaid.org.uk. girls at risk of circumcision in Sierra Please send any information that you Leone did not form a ‘particular social would like to see published in our next group’ under Article 1 (2) of the edition by 6 September 2005 (see email Convention; b) The Sierra Leone State or postal address on back cover). was willing to challenge the practice if 1 Fornah v SSHD [2005] EWCA Civ 680 (09 June 2005) wan issue number 52 july/august 2005 1 women’s asylum news approached. Despite refusing to grant Tribunal rejects definition of PSG her refugee status, the Secretary of used in case State recognised that returning Ms In August 2005, the Immigration Appeal Fornah to Sierra Leone against her will Tribunal (IAT) granted leave to appeal to when she would be at risk of being the Secretary of State and quashed the subjected to FGM would breach Article 3 Adjudicator’s decision. Then the IAT – of the European Convention on Human who also said that it is not because Ms Rights. Ms Fornah was thus granted Fornah is a woman that she fears th leave to remain until her 18 birthday on persecution (sic) - considered the PSG in 22 May 2005 and it was said that this is this case to be ‘young Sierra Leonean likely to be extended for a further three women who [had] not undergone female 2 years on humanitarian grounds. genital mutilation’. The IAT contended that such a group could not be recognised because a particular social Adjudicator says fundamental rights group under the Refugee Convention as denied means persecution for persecution (i.e. FGM here) cannot Convention reason define a particular social group, a point Ms Fornah appealed against the that was made in law in R v IAT, ex Secretary of State’s decision on 6 parte Shah and Islam [1999] AC 629. October 2003. The Adjudicator found that the practice of FGM amounted to Court of Appeal says widespread persecution and that the applicant had a practice not discriminatory well-founded fear of it. He also found Ms Fornah sought permission to appeal that the persecution was for a to the Court of Appeal against the Convention reason because of her MPSG Tribunal’s decision. The Court of Appeal defined as ‘one of “young, single Sierra ruled in favour of the Tribunal. At the Leonean women, who are clearly at heart of the Court of Appeal considerable risk of enforced [female determination were the questions: What genital mutilation]” and in respect of was, in that particular case, the which the State provided them with no ‘particular social group’ and did the protection’ (par. 5). The Adjudicator’s persecution feared by the applicant findings referred to R v IAT, ex parte result from her membership of that Shah and Islam [1999] AC 629, particular social group. implicitly3 based on the majority’s decision that Pakistani women were Like the Tribunal, and based on previous denied fundamental human rights in appeal determinations, the Court of Pakistan, thus being discriminated Appeal clearly rejects the definition of against, and having no protection offered MPSG used in this case because the from the Pakistani State. Court said that the reason for seeking asylum under the Convention must exist independently of the persecution (referring to Shah & Islam [1999] 2 AC 629). It also said the group does not 2 see Chadwick LJ, par. 46. have immutable characteristics as young 3 According to Auld LJ, see par. 5. wan issue number 52 july/august 2005 2 women’s asylum news women who submit to FGM are not at published in March 2004 the Home Office risk of further FGM: writes: ‘Female genital mutilation of young, ‘Women who may be subject to FGM single and uncircumcised Sierra Leonean have been found by the IAT women [does not constitute] persecution [Immigration Appeal Tribunal] to “for reasons of” their membership of a constitute a particular social group for “particular social group” [because inter the purposes of the 1951 Convention in alia]: some circumstances. Whether a PSG exists will depend on the conditions in 1) The practice, however repulsive to the society from which the applicant most societies outside Sierra Leone, is came. If there is a well-founded fear, (…) clearly accepted and/or regarded which includes evidence that FGM is by the majority of the population of knowingly tolerated by the authorities or that country, both women and men, as they are unable to offer effective traditional and part of the cultural life protection, and there is no possibility of of its society as a whole. an internal flight option, an applicant who claims that she would on return to 2) (…) The persecution here would result her home country suffer FGM may in a full acceptance by Sierra Leonean qualify for refugee status.’4 society of those young women who undergo the practice into adulthood, fit Now we are told by the Court of Appeal for marriage and to take a full part as that people cannot seek asylum on the women in the life of their communities. ground of MPSG for refusing to being subjected to a cultural practice against 3) It follows that (…) it is not, in the their will because that practice is circumstances in which it is practised in ‘accepted and/or regarded as traditional Sierra Leone, discriminatory in such a and part of one’s cultural life’ and is way as to set those who undergo it non-discriminatory. Thus there is no apart from society. social group discriminated against. Furthermore, because some readily 4) Considered on its own, a critical accept the practice, that social group common characteristic of the claimed cannot be cohesive. “particular social group” is that its members have not been circumcised. As pointed by Arden LJ, the only female But as soon as they have undergone judge in the case, the fact that men and the practice, they cease to be members some women in Pakistan accepted of the group (…).’ (par. 44) domestic violence did not mean that women denied of rights to protection The statements above are disconcerting against domestic violence did not and based on premises that undermine recent progress made in gender 4 Home Office, ‘Gender issues in the asylum claim’, awareness in assessing asylum claims in available online at: the UK. In its own gender guidance www.ind.homeoffice.gov.uk/content/ind/en/home/laws ___policy/policy_instructions/apis/gender_issues_in_t he.html. wan issue number 52 july/august 2005 3 women’s asylum news constitute a social group.5 Arden LJ and the Tribunal was found to have failed to before her the Adjudicator at the IAT consider whether women constituted a rightly indicated that in Shah & Islam the social group in Kenya because their risk social group ‘Pakistani women in of FGM arose from discriminatory Pakistan’ was recognised under the treatment of women by the authorities in Convention by the House of Lords ‘on the form of lack of protection against account of the discrimination that they FGM. suffered as a group in matters of fundamental human rights’ (par. 14) and Likewise in another High Court case - JO the lack of the protection by the state (Nigeria) UKIAT 00251, par.18 - the when under threat. court stresses that the core issues of societal and legal discrimination and lack of protection needs to be present when Issue of protection available needs to defining a particular social group: ‘The be considered fact that since Shah and Islam women Yet, in Ms Fornah’s case, the Court of have not been found by the IAT or the Appeal does not take into consideration courts to be a particular social group in whether or not the authorities in Sierra more than one or two countries suggests Leone are able to protect women from to us that too little regard has been paid FGM if they do not wish to submit to it, a to the fact that all that was required in key issue raised in two other cases based Shah and Islam (per Lord Hoffman) was on MPSG.
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