A refugee, defined by Article 1 of The 1951 Convention Relating to the Status of Refugees , is a person who has fled from and/or cannot return to their country due to a well-founded fear of persecution. An asylum seeker is a person who on his or her own initiative and without prior notification comes to another country and asks the authorities for protection and recognition as a refugee. If the application is granted the asylum seeker is granted refugee status and is considered a refugee.
In International law the conditions determining a person's right to asylum are detailed in The 1951 Convention Relating to the Status of Refugees. A refugee is considered to be a person fearing or suffering persecution on the grounds of race, religion, nationality, membership of a particular social group or political opinion. Fear of persecution must be the reason why the person does not wish to return to his/her country of origin where they will not be provided with protection against persecution.
In western law there is little dispute that constitutes a grave violation of human rights which results in serious harm. It is also the case that in many countries where FGM occurs, whilst there may be legislation prohibiting the practice of FGM little may be done to enforce laws relating to FGM. Therefore in accordance with conditions related to the granting of asylum status, there is a failure of the state to provide protection. However, the controversy surrounding FGM as grounds for asylum relates to the wording of the definition of a refugee in the UN Refugee Convention (1951) which defines a refugee as someone who "...owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion" (Article 1(A)(2)). At times certain authorities have debated whether women from a particular country or ethnic group who are at risk of FGM constitute a "particular social group".
The argument that women do not represent a "particular social group" may be somewhat related to a fear that if women are seen as a "particular social group" then countries may be at risk of an influx of women claiming asylum on the grounds of gender-based forms of persecution which are of course extensive. This 'argument is discussed in the book 'Do They Hear You Cry'  in which the author, Fauziya Kassindja, details her own experience of claiming asylum on the grounds of FGM, in America in the 1990s. In the book it is explained how Fauziya's lawyer, Layli Miller Bashir disputed this 'floodgates' argument by drawing attention to the facts that women represent a minority of those people entering a country seeking asylum. Layli also argued that in countries that practice FGM, the procedure is usually performed on girls when they are young, and that women in developing countries often have little money, resources and education and therefore are not in a situation to leave their country to claim asylum even if they do wish to leave which is often not the case. There is therefore not likely to be an opening of the 'floodgates' if women from a particular country or ethnic group who are at risk of persecution are viewed as a "particular social group." Furthermore, as argued by Amnesty International, whether or not a "particular social group" consists of large numbers is irrelevant as other Convention grounds, such as nationality and political opinion, are also characteristics shared by large numbers of people whose human rights are not sacrificed merely because they represent a large group.
In the UK alone there have been numerous cases of women claiming asylum on the grounds of FGM. Many of these cases have been subject to the enduring debates related to whether gender-based violence constitutes persecution of a particular social group, and other legal difficulties for which FGM within the context of asylum and human rights appeals has been identified as a 'complex area of law' .
On the 8th December 2005 the issue of the inclusion of female genital mutilation, carried out under duress, as a ground for asylum application was discussed in the House of Lords. The discussions were promoted by the case of a young woman from Sierra Leone named Zainab Esther Fornah, who came to the UK in 2003 to seek asylum on the basis that she would be subjected to FGM if she returned to Sierra Leone. The debate began with Baroness Rendell of Babergh stating: "My Lords, UNICEF and the UN have called for asylum status to be granted to girls and young women who flee their country to escape female genital mutilation, but in practice few women have been granted asylum on these grounds". Included in the following debate was discussion of the nature of FGM and reasons for the coninutation of the practice in the UK as well as programmes currently being undertaken to combat the practice, including the work of FORWARD. The cases in the UK of Zainab Esther Fornah, and a young woman from Guinea who was granted asylum on the grounds of FGM were also raised, as well as several cases and the law in relation to FGM and Asylum in other western countries were also discussed .
Although the outcomes of asylum claims on any grounds are inevitably determined somewhat by considerations relating to the individual case, FORWARD's position on the issue of FGM as grounds for asylum is very clear. Women who legitimately seek asylum on the grounds of FGM should be granted protection, as should any person facing torture and violence on the basis of their gender. Girls and women seeking asylum due to gender-based violence face many difficulties in discussing and proving such personal and sensitive experiences. Given the gendered experiences and difficulties faced by women seeking asylum, after many years lobbying by refugee women's and legal organisations, in 2004 the UK Home Office incorporated gender guidance into its asylum policy instructions for asylum caseworkers.
The policy instruction provides a framework for caseworkers to interpret the refugee convention properly and in relation FGM and other forms of gender-related violence, states that asylum seekers at risk of these forms of violence may qualify for asylum, if they can show that the mistreatment is likely to occur for one of the reasons set out in the 1951 Refugee Convention. The guidelines aim to ensure that the UK asylum process is sensitive to the needs of women, and in relation to women who have suffered trauma it recognises that they may have difficulty in coming to terms with their experiences and advises that the interview be conducted by a same sex interviewee. In addition it also instructs caseworkers to try to avoid interviewing women in front of children or male relatives, who may not be aware of all the reasons the woman is claiming asylum .
These guidelines and the recognition of the way that decision-making in the asylum procedure can be gender-biased are most welcome. However, a study published in 2006 by the Refugee Women's Resource Project (RWRP) on the implementation of the Home Office's Gender Guidance concluded that the guidance is "far from being systematically implemented when processing and assessing women's asylum claims in the UK or dealing with women asylum seekers", suggesting that the Home Office is paying mere 'lip service' to commitment to gender issues. The report details specific incidents of neglect relative to the measures suggested in the Gender Guidance, a lack of provision of female interviewers and interpreters and an overall lack of awareness of gender issues by decision-makers within the asylum process . FORWARD therefore asserts that UK Home Office should undertake specific measures to ensure that the gender guidelines are adhered to, and that recommendations made by the RWRP in relation to the use of the gender guidance and the necessary training of caseworkers are put into practice. These measures are necessary to ensure that the specific needs of women asylum seekers are fully recognised and taken into consideration in practice when a woman's claim for asylum is being assessed.
This article is written in reference to the Scottish Prohibition of Female Genital Mutilation Act 2005 but is still relevant to the situation in the rest of the UK as the Scottish FGM legislation is very similar to the UK Female Genital Mutilation Act 2003 which excludes Scotland.
In 1994, in the first case of its kind, Khadra Hassan Farah was granted refugee status after fleeing her native Somalia with her 10 year old daughter, Hodan, because she feared that Hodan would be forced to undergo FGM if they remained. In this landmark ruling Canada was the first country to acknowledge that FGM is a form of persecution and acknowledged the protection rights of women and girls threatened with FGM.
One of the most renowned cases of FGM and Asylum is that of Fauziya Kassindja, who fled Togo in 1984 for America, hours before she was to be subjected to FGM. Once in America she was imprisoned by the Immigration and Naturalisation Service. With the support and determination of a young law student Layli Miller Bashir a landmark decision was eventually reached, granting asylum to Fauziya on the 13th June 1996 and providing hope to others seeking refugee due to persecution on the basis of their gender .
More recently in the USA, in January 2006, a US Court recognised that fear of FGM was a well founded fear under the 1951 Refugee Convention, granting asylum to a Ethiopian couple and their daughter who the couple feared would be subjected to FGM if they remained in Ethiopia. This decision overturned a previous decision made in 2004 which denied them asylum on the grounds that the panel believed the daughter would not be subjected to FGM without the approval of her parents. The judge who granted them asylum believed that in fact, the girls' parents may be powerless to prevent their daughter from undergoing FGM. He concluded that their fear was well-founded which was enough to grant them asylum, and they were not required to prove that their child was likely to undergo FGM .
Ireland has seen multiple cases of women who fled their countries to claim asylum due to fear of FGM yet to date only two women had ever been granted refugee status on the grounds of FGM. In 2000, Nkechi Okolie arrived in Ireland with her three children. Nkechi had undergone FGM herself and did not want her daughters to also suffer FGM. She feared that if she was returned to her home country of Nigeria her daughters would be subjected to FGM, but the Irish state rejected her appeal on these grounds and in March 2005 they were deported back to Nigeria .
More recently in Ireland, widely reported in the media has been the case of Pamela Izevbekhai, who also fled her native Nigeria with her two daughters to protect them from FGM. Despite having already lost one daughter to FGM in 1994, when the little girl bled to death at the age of 18 months, Pamela's husband's family were insisting that the other daughters also underwent FGM. In November 2005 Pamela lost her appeal for asylum, and consequently spent the next month in hiding following a deportation order but after a month was arrested by immigration officers. A decision made in January 2006 allowed Pamela to remain in the country until the next step in the legal process, which may result in her being ordered back to Nigeria. The case is at present unresolved. Pamela's case was rejected despite evidence that Pamela and her children face danger in their home country. The Irish government claims her children are not at risk in Nigeria and FGM is not specified as a risk in itself, even though both the European Union and the African Union, of which Nigeria is a member, recognise FGM as a human rights abuse and an illegal act .
FORWARD, September 2006.
|Note 3||Fauziya Kassindja and Layli Miller Bashir, 1998, Do They Hear You When You Cry, Bantom Books, London.|
|Note 4||Amnesty International, 1998, Female Genital Mutilation- A Human Rights Information pack.||Note 5||Save The Children, Child Asylum and Refugee Issues in Scotland - Female Genital Mutilation.|
|Note 6||A full transcript of the discussion on FGM in the House of Lords on December 8th 2005.|
|Note 7||Refugee Women's Resource Project, March 2006, Lip service' or implementation? The Home Office Gender Guidance and women's asylum claims in the UK.|
|Note 8||Refugee Women's Resource Project, March 2006, Lip service' or implementation? The Home Office Gender Guidance and women's asylum claims in the UK, available at:||Note 9||Fauziya Kassindja and Layli Miller Bashir, 1998, Do They Hear You When You Cry, Bantom Books, London.|
|Note 10||Kenneth Ofgang, January 2006, Fear of Genital Mutilation Enough to Support Asylum Grant, available at: this link|
|Note 11||Workers Solidarity Movement, July 2005, Deported to be mutilated, available at: this link|
|Note 12||Meghan Sapp, January 2006, FGM leads Nigerian to Plea for Daughters' Asylum, available at: this link|