Asylum to FGM case in UK

Britain: 'House of Lords' grants asylum to
Female Genital Mutilation case
based on
MPSG (Membership of a Particular Social Group)

Women’s Asylum News welcomes the House of Lords’ decision on Fornah, the case of a young woman from Sierra Leone who had fled female genital mutilation (FGM), but was refused refugee status under the Refugee Convention because it was found that her well-founded fear of persecution (otherwise recognised) was not for one of the five Convention reasons.1 The Secretary of State held that Fornah would not be persecuted for reason of ‘her membership of a particular social group’ as claimed by the appellant. 2

However, he conceded that if the woman were forcibly returned to her country of origin, she would be subjected to inhumane and degrading treatment (a breach of article 3 of the European Convention on Human Rights to which the UK is a signatory). She had therefore been granted humanitarian protection in the UK after her leave to remain expired on her 18th birthday.3 This meant however that she was not entitled to full Refugee Convention rights.

On appeal of the Refugee Convention point, the Adjudicator found that her fear was for a Convention reason i.e. because of her membership of a particular social group, that of young, single Sierra Leonean women, who are clearly at considerable risk of enforced FGM.4 On appeal to the Immigration Appeal Tribunal the decision was reversed. The Tribunal was not satisfied that the social group identified by the Adjudicator could properly be regarded as a particular social group within the meaning of the Refugee Convention. The Court of Appeal agreed with this view. This matter proceeded to the House of Lords.


Fornah and MPSG
The House of Lords panel of five judges led by Lord Bingham of Cornhill, set to look at the meaning of ‘a particular social group’ (PSG) only and whether the appellant was a member of a PSG.

In their opinion, the judges referred to a number of authorities in relation to MPSG, including domestic (R v Immigration Appeal Tribunal, Ex p Shah and Islam [1999] 2 AC 629) and international decisions (such as re Acosta) and an analytical review of approaches adopted worldwide by T A Aleinikoff entitled ‘Protected characteristics and social perceptions: an analysis of the meaning of “membership of a particular social group”;5 they also referred to the relevant definitions provided by UNHCR and the European Union Council Directive 2004/83/EC (29 April 2004) which came into force in the UK on 10 October 2006.

The House of Lords stated that FGM has been widely recognised as persecution for a Convention reason in decisions across the world but also in the UK (par. 27, par. 108) and questioned why the case had to reach that level of appeal in the UK in the first place.

However, looking at Fornah in particular, the judges are unanimous in recognising that either ‘all women in Sierra Leone’ (par. 31), or ‘intact or uninitiated women and girls who are in tribes in SL which practice FGM’ (par. 71, 72), i.e. women who have not undergone FGM, constitute a particular social group of which Fornah is a member, because, as women, they are discriminated against in Sierra Leonean society. Relying on what he describes as ‘undisputed evidence’, Lord Bingham of Cornhill, proposed a wider definition of the social group:

‘par. 31. …I think it clear that women in Sierra Leone are a group of persons sharing a common characteristic, which, without a fundamental change in social mores is unchangeable, namely a position of social inferiority as compared with men. They are perceived by society as inferior. That is true of all women, those who accept or willingly embrace their inferior position and those who do not. To define the group in this way is not to define it by reference to the persecution complained of: it is a characteristic which would exist even if FGM were not practised, although FGM is an extreme and very cruel expression of male dominance’.

Some judges preferred the narrower definition of PSG that excluded women who had already undergone FGM (see for instance par. 56, 114, 119) but even then, they clearly stated that they were not in disagreement with the wider definition of the group as ‘all women in Sierra Leone’.

The House of Lords is therefore unanimous in holding that:

1. The characteristics of the group are the fact that members of this group are female and as such are ‘perceived by society as inferior’ (par. 31) or discriminated against and targeted for FGM (‘The harm is ‘gender-specific’… in other words, "but for" being a woman, the persons concerned could not be selected as victims of the practice’, par. 74) and if in favour of the narrower definition,

2. That they belong to certain tribes, which practice FGM.

These, they say, constitute immutable characteristics that exist independently of FGM and fulfil the requirements of the definition of MPSG under the Refugee Convention and in particular as defined in paragraph 11 of the UNHCR Guidelines on Membership of a Particular Social Group (7 May 2002),6 which is quoted by Baroness Hale (par. 100). The Lords stressed that it is because of their characteristics and of the discriminatory position of women in a society where ‘patriarchy is deeply entrenched’ (par. 54) that uninitiated or intact women are forced to undergo FGM:

‘FGM may ensure a young woman’s acceptance in Sierra Leonean society, but she is accepted on the basis of institutionalised inferiority. … FGM is an extreme expression of the discrimination to which all women in Sierra Leone are subject, as much those who have already undergone the process as those who have not.’ (par. 31, see also par. 79).

The House of Lords further adds that women in Sierra Leone who oppose FGM have no means to seek protection from the State authorities or legal redress against the practice (par. 54, p. 69).


Circulatory argument rejected
Thus the House of Lords categorically rejects the Court of Appeal’s circulatory argument according to which the group to which Fornah contended to belong (‘young Sierra Leonean women who [had] not undergone female genital mutilation’) is defined by the persecutory act (par. 78); and that that social group did not have immutable characteristics because women who submit to FGM are not at further risk and that the practice is ‘accepted and/or regarded as traditional and part of one’s cultural life’, and thus cannot be considered discriminatory. The House of Lords held that it cannot be argued that because FGM is a one-off act, it does not constitute persecution for a Convention reason. First the reasoning is fallacious because it defines the group on the basis of the risk of persecution; but even if the group is defined by the fact that women are ‘intact’, it remains that it is the characteristics of the group, gender, ethnicity and intactness, which make them subject to that particular form of persecution, not the persecution that leads to these characteristics (par. 113).

Also contrary to the Court of Appeal’s decision, it held that the fact that the practice is widely accepted or widespread is of no relevance, nor is the fact that the practice is being performed or accepted by other women (par. 31, 57-58, 81, 109, 110). Furthermore, the House of Lords held that it is wrong to reject the group definition that includes all women in Sierra Leone because not all its members are at risk, pointing to the fact that some members may be under social pressure to submit to a particular form of persecution, like FGM, or may escape persecution for various reasons as already recognised in Shah and Islam (par. 55-56). Lord Rodger of Earlsferry holds:

‘(par. 75) While it is not necessary that all members of the social group in question are persecuted before one can say that people are persecuted for reasons of their membership of the group, it is necessary that all members of the group should be susceptible to the persecution in question’.

The House of Lords also holds that, whilst the persecution cannot solely define a particular social group, some persecution like FGM can be a factor in identifying a PSG, and that this is not inconsistent with the Convention and current legal interpretations: ‘(par. 120) Assume that albinos were openly persecuted simply because of their appearance. Could it really be said that they were outside the protection of the Convention? Plainly not.’

(par. 79) In particular reference to the case of Fornah, the House of Lords stated that ‘actions of those who persecute these women by mutilating them certainly serve to reinforce the identity of the particular social group of intact and uninitiated women.’

Crucially the House of Lords holds that they accepted the definition of a particular social group as contained in paragraph 11 of the UNHCR 2002 Guidelines and that they expected any Regulations brought into force under the EU Council Directive 2004/83/EC to be interpreted consistently with this definition (par. 118).

Gender persecution – a human rights issues recognised by international law
RWRP welcomes the fact that Baroness Hale took the opportunity to highlight issues to do with gender-related or gender specific persecution in general. In particular she points to the fact that the Refugee Convention is one of very few international human rights law instruments, which does not list sex amongst the reasons for persecution or discrimination. Importantly, she stresses that gender persecution should raise rights to international protection not only under the Refugee Convention but also other international instruments (par. 86):

‘States parties to the Refugee Convention, at least if they are also parties to the International Covenant on Civil and Political Rights and to the Convention on the Elimination of All Forms of Discrimination against Women, are obliged to interpret and apply the Refugee Convention compatibly with the commitment to gender equality in those two instruments.’

She thus proceeds to explain how FGM constitutes a human rights issue within not only the meaning of article 3 of the ECHR but also article 1 or 16 of the of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, article 7 of the International Covenant on Civil and Political Rights, and article 37(a) of the Convention on the Rights of the Child.

Lastly Fornah had already been granted humanitarian protection for three years in 2005. But RWRP is also particularly pleased that the House of Lords stressed the practical implications in terms of fighting for the recognition of refugee status as this leads to more substantial rights (such as right to work, welfare, naturalisation, travel documents, etc.); benefits which, in the words of the House of Lords, are ‘well worth arguing for’ (par. 35) and more importantly, a status which will be recognised by Contracting States of the Geneva Convention. Finally and as concluded by Lord Brown of Eaton-under-Heywood in paragraph 121 of his judgment:

‘It must be remembered that by no means all states party to the Convention are party too to the ECHR. Article 3 of ECHR will not, therefore always preclude states from returning home others in like situations to these appellants. It would be most unfortunate if the jurisprudence of the UK were available to support a narrow view of the Convention’s protective reach.’



A full copy of the House of Lords’ opinion on Fornah can be found at:
www.publications.parliament.uk/pa/ld200506/ldjudgmt/jd061018/sshd-1.htm