Female Genital Mutilation
What is Female Genital Mutilation or FGM?
'Female genital mutilation comprises all procedures involving partial or total removal of the external female genitalia or other injury to the female genital organs whether for cultural or other non-therapeutic reasons.'[1]
Longer Term Consequences of FGM
Extreme pain. Excessive bleeding. Temporarily incapacitating. Permanently disfigures the female genitalia. Risk of serious potentially life-threatening complications, including: ongoing bleeding, infection including HIV, urine retention, stress, and shock. Long-term and even irreparable physical, physiological, sexual, and psychological effects such as psychological trauma, damage to urethra and anus. [2] Possible permanent loss of genital sensation and loss of sexual and erotic feelings. [3]
Who performs FGM?
Typically elderly women in the community designated for the task or traditional birth attendants. In some countries, health professionals, such as trained midwives and even physicians. [4]
How is FGM performed?
Mostly in unsanitary conditions using unclean sharp instruments such as razor blades, scissors, kitchen knives and even pieces of broken glass. Such cutting instruments are frequently used on several girls in succession causing infection and transmission of viruses including HIV. Antiseptic techniques and anaesthesia are generally not used. [5]
When is FGM performed?
Generally between the ages of three and ten years, although it may be carried out during infancy, adolescence, on marriage, or during a first pregnancy. [6]
How Common is FGM?
WHO estimates the number of women and girls who have undergone genital mutilation globally at between 100 and 140 million, with a further 2 million girls at risk annually. [7]
FGM is endemic throughout much of Africa. It is practised in 28 African countries. [8] The highest prevalence is in: Somalia and Djibouti (98%), Eritrea 90-95%, Mali 94%, Sierra Leone 90%, Egypt 85-97%, Sudan 89%, Ethiopia 85%, Gambia 80% [9] ; Guinea 65-90%, Nigeria 60-90%, Burkina Faso up to 70%, Chad 60%, Ivory Coast up to 60%, Kenya and Liberia 50%, Central African Republic 45-50%, Benin 5-50%, Ghana 15-30%, Senegal 20%, Tanzania 18%, Togo 12%. [10] Local instances have also been recorded in: Cameroon, Comoros, DRC (Congo), Guinea Bissau, Niger and Uganda. [11]
Instances of FGM have also occurred worldwide. [12]
Why is FGM an 'issue' for Scotland?
Immigrants, asylum seekers and refugees from the above countries have now entered, and begun to settle within, Scotland - many 'dispersed' to Glasgow as a result of the local authority's agreement to participate in the Government's National Asylum Support Scheme (NASS). [13] Thus, the number of young women entering Scotland from FGM practising cultures has increased dramatically.
No definitive statistics of the incidence of FGM in the UK are available because of the rarity of reporting, and also possibly due to ignorance of the matter. The Home Office have referred to FORWARD's estimate that '...there are 74,000 first generation African immigrant women in the UK who have undergone FGM and as many as 7,000 girls (under 16) within the practising communities who are at risk of FGM.'[14]
Is there legislation outlawing FGM in UK?
The 1985 Prohibition of Female Circumcision Act made the practice of FGM in the UK a criminal offence. However, 'despite evidence that FGM is taking place in the UK' and '15,000 girls are at risk in the UK', [15] there were no prosecutions in the UK.
One registered general practitioner was, however, found guilty of serious professional misconduct by the General Medical Council and struck off the Medical Register for offering to perform circumcision operations on females. [16]
The 1985 Act has now been overtaken by the 'Female Genital Mutilation Act' 2003 which repeals, re-enacts and strengthens the provisions of the 1985 Act. [17] It came into force on 3rd March 2004 by the 'Female Genital Mutilation Act 2003 (Commencement) Order' 2004. Significantly, its provisions have an extra-territorial effect, which establishes the new offence of taking a female abroad for the purposes of FGM or of assisting a non-UK person to mutilate a female overseas (see below*). The maximum penalty for FGM has increased from 5 to 14 years’ imprisonment. However, this new bill does not extend to Scotland.
Scottish Legislation
The Prohibition of Female Genital Mutilation (Scotland) Act 2005 [18] came into force on 1st September 2005. It changes the legal definition of female genital mutilation to - 'to excise, infibulate or otherwise mutilate the whole or any part of the labia majora. Labia minora, prepuce of the clitoris, clitoris or vagina of another person.'[19] It makes it an offence for UK nationals or permanent residents to carry out or aid and abet female genital mutilation in the UK and abroad and it increases the maximum penalty to 14 years imprisonment. It also allows a court to refer the victim and any child in the same household to the reporter to the children´s panel.
Does FGM meet the definition of 'persecution' or 'breach of human rights'?
The World Health Organisation:
'…it is a violation of internationally accepted human rights.'[20]
According to the UN High Commission for Refugees:
'FGM has been acknowledged as a form of human rights abuse, and its threat or forcible imposition can amount to persecution. Therefore, a woman can be considered a refugee if she or her daughters feel being compelled to undergo FGM against their will...' [21]
UK Appellate Asylum Gender Guidelines (2000):
'...acts involving genital mutilation are infringements of the right to freedom from torture, inhuman and degrading treatment...'[22]
Home Office Asylum Directorate guidance to caseworkers, July 1998:
'Acts including genital mutilation when committed or sanctioned by officials would probably always constitute torture.'[23]
Can FGM form the basis of a successful Asylum and/ or Human Rights claim?
Fear of Female Genital Mutilation as the basis of an asylum and human rights appeal has proved a developing area of law. Until very recently, different courts have adopted different approaches over time and jurisdictions [24] (and even within the same jurisdiction [25]), which has resulted in varying rates of success for FGM claimants under both the Refugee and Human Rights Conventions.
Worldwide, the consensus by 2005 was that, ‘There is a growing (but still small) body of law recognising FGS (female genital surgeries) as the basis of a refugee claim’ [26]. However, in the UK until the seminal case of Fornah in October 2006, Courts showed a clear reluctance to allow asylum appeals based on fear of FGM. Between 2001 and October 2006 there was only one successful reported appeal [27] upheld under the Refugee Convention in the UK [28], despite earlier political statements to the contrary [29], and the Home Office’s own guidance [30].
The decision of the Lords in 2006 in Fornah, in which the UNHCR exceptionally intervened, set a new precedent in the UK heralding a comparatively late acceptance in the UK that FGM can indeed constitute persecution in terms of the Refugee Convention, and females fleeing a well-founded fear of FGM can form a ‘particular social group’.
Previously the UK Immigration & Asylum Tribunal [31] had steadfastly rejected the very legal arguments which were subsequently propounded unanimously by the House of Lords in Fornah. In particular, the proposition that females at risk of FGM could form a PSG for the purposes of the Refugee Convention had been repeatedly dismissed by the higher Tribunal between 2001 and 2006, as the reported case law over that period illustrates [32].
Until the Lords’ ruling in Fornah, there had been an exceedingly restrictive interpretation in the UK courts of key concepts such as ‘Particular Social Group’ and ‘Convention Reason’[33]. The most common reason (as reasons were not always consistent) for dismissing FGM asylum claims prior to Fornah in the Lords was rejection of definitions of PSG because of an inability to define the relevant PSG without reference to FGM. Prior to Fornah, two Court of Appeal cases revealed a split of opinions [34]. And the only reported Court of Session case based on FGM appeared to introduce a novel notion - appellants had to establish that the FGM feared would be ‘forced’ [35].
The House of Lords in Fornah effectively overturned the Tribunal’s long line of restrictive authority. Yet of the three reported Tribunal decisions since Fornah, two have been dismissed – not any more on failure to establish a Convention reason, but on failure to establish that Internal Relocation would not be possible, and, to an extent, credibility. Only one FGM appeal post-Fornah has so far been accepted by the IAT. However, the Court of Appeal in England has just overturned one of the post-Fornah Tribunal decisions dismissing a claim to asylum on the basis of fear of FGM if returned – FK (Kenya) [2008] EWCA Civ 119.
The measure of the volte face in approach to FGM in the UK courts which the Lords’ ruling heralded, can be illustrated by contrasting the decision of the earlier Court of Appeal ruling in 2005 of Fornah [36], in particular the opinions of Lords Auld and Chadwick, with the opinions of their Lordships in the Lords in 2006 in the same case [37]. In a reversal of the reasoning of Lords Auld and Chadwick, FGM was accepted as ‘persecution’ in terms of the Refugee Convention and Sierra Leone females fearing FGM were accepted as forming a particular social group (PSG).
The significance of the House of Lords’ ruling in Fornah is that it signaled the end of the exclusion of females fleeing FGM from the protection of the Refugee Convention. For only the second time in the UK [38] in six years, an appeal court had accepted that a well-founded risk of FGM should ground a claim for asylum, not just human rights. The highest Court in the UK had overturned the UK Immigration and Asylum Tribunal’s long line of authority and accepted that FGM should be considered persecution in terms of the Refugee Convention, and that a Convention ground does exist - membership of particular group – females in the country of origin.
Appendix
References
[1] Re. Defined in a joint statement on FGM issued in April 1997 by WHO, UNICEF and UNFPA, re. World Health Organisation, Female Genital Mutilation – An Overview, Geneva 1998, page 5
[3] Nahid Toubia, Female Genital Mutilation: A Call for Global Action 9, 24-25, Gloria Jacobs ed., Women Ink. 1993)
[5] Re. Heaven Crawley, Women As Asylum Seekers, A Legal Handbook, 1997, page 68
[6] Heaven Crawley, Women As Asylum Seekers, A Legal Handbook, 1997, page 68
[7] Integrated Regional Information Networks News, (IRIN) 'Somalia: Campaign against FGM launched on Women’s Day', 08/03/2004
[8] Heaven Crawley, Women As Asylum Seekers, A Legal Handbook, 1997, page 67
[9] World Health Organisation, Female Genital Mutilation – An Overview, Geneva 1998, pages 8-9; re. Also current US State Department Reports on each country
[10] As estimated by afrol.com drawing on UN, Amnesty, US Government sources re. http://afrol.com/Categories/Women/FGM/fgm_map.htm
[11] Re. Ibid: afrol.com drawing on UN, Amnesty, US Government sources re. http://afrol.com/Categories/Women/FGM/fgm_map.htm
[12] IRIN News, 'Somalia: Campaign against FGM launched on Women´s Day', 08/03/2004
[13] Glasgow city council agreed to house up to 6,000 asylum seekers under the Government’s 'dispersal' scheme.
[14] Home Office, 21 March 2003 re.
[15]Chris McCafferty, Female Genital Mutilation Speech at the UN, March 2002, speaking as MP and Chair of the All-Party Parliament Group on Population, Development and Reproductive Health re.
[16] re. Ahmed v General Medical Council [2001] UKPC 49, 66 BLMR 52
[17] See www.hmso.gov.uk/acts/acts2003/20030031.htm for full text of the Act
[18] The Prohibition of Female Genital Mutilation (Scotland) Act 2005
[19] Explanatory notes which give a more detailed explanation of the Prohibition of Female Genital Mutilation (Scotland) Act 2005
[20] World Health Organisation, Female Genital Mutilation – An Overview, Geneva 1998, page 1
[21] Division of International Protection of UNHCR, draft general legal advice, Geneva, 21 February 1996
[24] It is interesting to contrast the approach to legal tests and concepts involved in FGM appeals across international jurisdictions. E.g. contrast reported decisions of the UK Asylum and Immigration Tribunal 2001-2006 with the decisions of the Immigration Appellate authorities in: US e.g. Kasinga 1996, BIA LEXIS 15; Canada e.g. MAI-OO356/367/378 IRB) and Australia e.g. V97/06156; V98/09568 RRT) – all of which accepted women as a ‘particular social group’ and FGM as persecution and the basis of a successful refugee appeal years – even a decade - before the UK Immigration & Asylum Tribunal.
[25] Compare for instance the approach of the Tribunal in FGM appeals between 2001 and 2006 with the oldest successful reported UK Tribunal case of Yake 2000 [00TH00493; HX73331-98] )
[26] Deborah E. Anker, writing as Director of Harvard Immigration and Refugee Clinic in 2002, Refugee Law, Gender and the Human Rights Paradigm, Harvard Human Rights Journal, Volume 15, Spring 2002 ISSN 1057-5057, page 145.
[27] P and M [2004] EWCA Civ. 1640
[28] For a summary of all reported cases on FGM by the Asylum & Immigration Tribunal (and previously the IAT) on the Electronic Immigration Network from 2000-2006 re. Nicola Loughran: Circumcising FGM claims? The UK Tribunal’s Approach to FGM in Asylum Appeals. 2006, Gray & Co. Solicitors; FGM in Asylum Appeals – Hidden Persecution? Hidden Lives Conference, Strathclyde University, May 2007; The Fornah Effect, Glasgow University, February 2007.
[29] “We would regard enforced abortion as torture, as we would enforced mutilation or sterilisation. I stress that both personally and as a Minister I utterly accept that forcible …genital mutilation and allied practices would almost always constitute torture. In fact they would probably always constitute torture. There is no doubt in my mind that anyone making a case to us on those grounds would have an extremely good case for asylum.” Anne Widdecombe, then M.P. and Minister of State for the Home Office, Lords Amendments to the Asylum & Immigration Bill 1995/1996, Hansard Col. 842-844; 822-825 and 476-477.
[30] ‘Gender issues in the asylum claim’, para (iv):
‘Women who may be subject to FGM have been found by the courts in some circumstances to constitute a particular social group for the purposes of the 1951 Convention. Whether a PSG exists will depend on the conditions in the ‘society’ from which the claimant comes. If there is a well-founded fear, which includes evidence that FGM is knowingly tolerated by the authorities or they are unable to offer effective protection, and there is no possibility of an internal flight option, a claimant who claims that she would on return to her home country suffer FGM may qualify for refugee status.’
[31] Now the Asylum & Immigration Tribunal
[33] As compared to the generally more liberal, inclusive approach adopted by courts worldwide.
[34] Contrast the Court of Appeal rulings in P and M [2004] EWCA Civ. 1640, 8th December 2004 with Fornah (2006)
[35] Re. Helen Johnson, Petitioner for JR, Outer House, Court of Session 2004, 3 December.
[36] Zainab Esther Fornah [2005] EWCA Civ 680, 9/6/05
[38] Re. Court of Appeal in P and M; Immigration & Asylum Tribunal in Yake 2000
Nicola Loughran
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