FGM and asylum by Charlotte Rubin

The World Health Organisation defines Female Genital Mutilation (FGM) as ‘all procedures that involve partial or total removal of the external female genitalia, or other injury to the female genital organs for non-medical reasons.’ FGM is an intrusive and extremely painful procedure which stains a girl’s entire life, and is linked with severe long-term consequences including cysts, infections and complications in childbirth.

A 2016 government report states that FGM is child abuse. It promises not to tolerate this practice in the UK, and expresses a commitment to taking concerted action to prevent and ultimately end FGM.

As such, the government has taken active steps to combat it. In the UK, agencies have been set up and legislation passed to fight the practice aggressively. FGM has been a criminal offense in Britain since 1985, and new legislation in 2003 introduced a jail term of up to 14 years for British citizens carrying out FGM abroad, even in countries where it is legal to do so. Beyond British borders, the government pledged to invest £50m in grassroots organisations working to stop the practice across Africa, where it is most prevalent. As it stands, there are over 30 countries where young girls are still routinely subject to FGM. That begs the questions: what happens to girls who escape the practice in their home country and seek refuge elsewhere? Does the commitment to prevent and end FGM extend to them?

In order to qualify for refugee status in the UK, an asylum seeker must show a fear of persecution in their home country. Claims made based on fear of FGM have to fit into this legal terminology in order to succeed. Three basic elements must be proven for the claim to be successful. Firstly, the asylum seeker must have a well-founded fear of persecution. Secondly, the individual must be subject to the persecution for reason of race, religion, nationality, membership of a particular social group, or political opinion. Lastly, the asylum seeker must prove that they cannot be adequately protected against the persecution in their country of origin. These three elements are worth discussing each in turn.

FGM has been classed as a form of torture and inhumane or degrading treatment, and as a violation of the human rights as well as health and bodily integrity of women and girls. It violates numerous human rights statutes such as the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights (ICCPR), as well as the Convention on the Rights of the Child (CRC) which asks to ‘protect the child from all forms of physical or mental violence, injury or abuse.’ As such, FGM constitutes persecution in the legal sense of the word.

Considering the second element, FGM can be claimed under a couple of these umbrellas. Since it is a practice that affects only women and these women experience discrimination in their countries of origin, they can be considered to belong to the particular social group “women.” FGM is a form of violence against women and girls which is in itself both a cause and consequence of gender inequality, and therefore targets a particular social group, namely a particular gender. Opposition to FGM can also be considered a religious or political opinion. Either argument can satisfy the second element of an asylum claim.

Lastly, the claimant must prove that they cannot accurately be protected against persecution in their home country by for example relocating or seeking protection from the local authorities. This is where it usually goes wrong. The Home Office, focused on meeting net migration targets, often claims that contrary to the evidence, the risk of FGM in such cases is low because the mother can single-handedly protect her daughter from familial, religious or community pressure to undergo FGM; or that, just because the mother has been cut, it does not necessarily follow that her daughter will be cut; or that the state can protect the girl from FGM. As a consequence, asylum is often refused, even though it is widely documented that, when considering the risk of FGM, the most important factors are whether the girl’s family has a history of practising FGM, whether it is known to be practised in her community or country of origin, and whether laws to facilitate protection against are actually enforced in that particular country (hint – they often are not.)

If a girl has already been subjected to FGM when she claims asylum, the claim will usually also be refused. The physical and psychological trauma of having been through the mutilation does not, under current law, form a sufficient basis for an asylum claim, since the claimant is not at risk of FGM in the future. As such, unless there is a reasonable degree of likelihood that the procedure might be redone after the birth of a baby, or that FGM might be performed on the claimant’s daughters, someone who has previously been cut will not be granted asylum on that basis alone.

Even when a FGM claim succeed, that only guarantees status for the person directly at risk. More often than not, these claimants are children on the cusp of puberty. Since parents cannot be dependants on their daughter’s asylum claim, the Home Office has to evaluate whether accompanying parents qualify for refugee status on the basis of a well-founded fear of persecution in their own right. This may be either as a member of a particular social group, that group being the accompanying parents of a daughter at risk of FGM, or for other reasons in the country of return. If this is not the case, the parents may be granted discretionary leave, but, predictably, this is entirely at the Home Office’s discretion, effectively bringing these children at risk of separation from their parents if they want to avoid mutilation back home.

This exemplifies the duplicity of the government’s public commitment to ending FGM with real support for victims. On the one hand, the rhetoric against FGM is strong and unequivocal. In the UK, as well as for British citizens abroad, the practice is criminalised and heavily punishable. On the other hand, women and girls at risk of mutilation abroad are deported. As Charlotte Proudman, a Goldsmiths chambers barrister and academic specialised in FGM cases said last year, if the government was genuinely committed to protecting women and girls from FGM, it would be concerned with them being cut at home as well as overseas.

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