I would like to write about a young Sierra Leonean girl, Zainab Fornah, whose asylum appeal was recently heard in the House of Lords. This post is about what the case was about, what the House of Lords said, and why it had to come to this at all.

In addition, I have included some quite lengthy extracts from the judgements, which show clearly what FGM is, and is not. They are factual, and clear, and horrific.

Here is an introductory extract from Lord Bingham’s description of the facts of her case:

“[Zainab Fornah] was born in Sierra Leone on 23 May 1987. She arrived in the United Kingdom on 15 March 2003, aged 15, and claimed asylum. The basis of her claim was that, if returned to Sierra Leone, she would be at risk of subjection to female genital mutilation (FGM).”In 1998 [Fornah] and her mother were living in her father’s family village to escape the civil war, and she overheard discussions of her undergoing FGM as part of her initiation into womanhood. In order to avoid this she ran away, but she was captured by rebels and repeatedly raped by a rebel leader, by whom she became pregnant. An uncle had arranged her departure from Sierra Leone to the United Kingdom. She resisted return on the ground that, if returned, she would have nowhere to live but her father’s village, where she feared she would be subjected to FGM.

“FGM is performed on the overwhelming majority of girls in Sierra Leone apart from Krios, a small minority of the population. The operation, often very crudely performed, causes excruciating pain. It can give rise to serious long-term ill-effects, physical and mental, and it is sometimes fatal. The operation is performed by older women, members of secret societies, and is a rite of passage from childhood to full womanhood, symbolised by admission of the initiate to these secret societies. Even the lower classes of Sierra Leonean society regard uninitiated indigenous women as an abomination fit only for the worst sort of sexual exploitation. Because of its totemic significance the practice is welcomed by some women and accepted by almost all. In society as a whole the practice is generally accepted where it is not approved, and the authorities do little to curb or eliminate it.

“The practice of FGM powerfully reinforces and expresses the inferior status of women as compared with men in Sierra Leonean society. The evidence is that despite constitutional guarantees against discrimination, the rights of married women, particularly those married under customary and Islamic laws, are limited. Their position is comparable with that of a minor. Under customary law, a wife is obliged always to obey her husband, with whom she can refuse sexual intercourse only in limited circumstances. She is subject to chastisement at his hands.

“FGM has been condemned as cruel, discriminatory and degrading by a long series of international instruments, declarations, resolutions, pronouncements and recommendations… illustrated by a recent Report of the UN Special Rapporteur on violence against women…:

Nevertheless, many of the practices enumerated in the next section are unconscionable and challenge the very concept of universal human rights. Many of them involve ‘severe pain and suffering’ and may be considered ‘torture like’ in their manifestation. Others such as property and marital rights are inherently unequal and blatantly challenge the international imperatives towards equality. The right to be free from torture is considered by many scholars to be jus cogens, a norm of international law that cannot be derogated from by nation States. So fundamental is the right to be free from torture that, along with the right to be free from genocide, it is seen as a norm that binds all nation States, whether or not they have signed any international convention or document. Therefore those cultural practices that involve ‘severe pain and suffering’ for the woman or the girl child, those that do not respect the physical integrity of the female body, must receive maximum international scrutiny and agitation. It is imperative that practices such as female genital mutilation, honour killings, Sati or any other form of cultural practice that brutalizes the female body receive international attention, and international leverage should be used to ensure that these practices are curtailed and eliminated as quickly as possible.

“In some countries, including the United Kingdom, effect is given to this international consensus by the prohibition of FGM on pain of severe criminal sanctions.”

Here is what the legal case was about:

Fornah claimed asylum in the UK. In order to be granted asylum she would have to show that she “owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of [her]nationality and is unable or, owing to such fear, is unwilling to avail [herself] of the protection of that country;…” (from the Refugee Convention)

The question was whether fear of being persecuted for reasons related to her sex was sufficient to give Fornah an asylum claim. More legalistically, it was whether the group to which she belonged – by reason of which she was at risk of suffering FGM – was “a particular social group” for the purposes of applying the Refugee Convention.

The British government argued that being a member of a group of people at risk of being subjected to FGM does not count and does not give a woman escaping from FGM the right to claim asylum, but only the (lesser, temporary) refugee status. Fornah’s lawyers argued that it should and did. They were supported in this by argument from the United Nations High Commissioner for Refugees. The House of Lords was called upon to adjudicate.

The UNHCR had previously issued numerous statements about FGM and about asylum in the context of FGM, all of which clearly and unequivocally show their view that it will normally justify an asylum claim. For example:

“On this basis, we must conclude that FGM, which causes severe pain as well as permanent physical harm, amounts to a violation of human rights, including the rights of the child, and can be regarded as persecution. The toleration of these acts by the authorities, or the unwillingness of the authorities to provide protection against them, amounts to official acquiescence. Therefore, a woman can be considered as a refugee if she or her daughters/dependents fear being compelled to undergo FGM against their will; or, she fears persecution for refusing to undergo or to allow her daughters to undergo the practice.”

The European Parliament approves this approach, as do many other countries. Indeed, as the House of Lords accepted, claims for asylum based on a fear of persecution in the form of FGM have been recognised internationally. A number of examples are cited in the judgements.

Our own Home Office said in 2001:

“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.”

Nevertheless, the British government had resisted Fornah’s claim, without questioning her credibility or that her fears were well-founded. They just didn’t think she should be entitled to claim asylum because of her fears of FGM. The tribunals and courts by and large agreed, at least until the House of Lords was reached.

Why? Why? Why?

Here is one of the judges (Lord Justice Auld) in the Court of Appeal:

“I have reached the view that the pointers are away from, rather than towards, female genital mutilation of young, single and uncircumcised Sierra Leonean women constituting persecution ‘for reasons of’ their membership of a ‘particular social group’. They are as follows.

(1) The practice, however repulsive to most societies outside Sierra Leone, is, on the objective evidence before the adjudicator and the tribunal, clearly accepted and/or regarded by the majority of the population of that country, both women and men, as traditional and part of the cultural life of its society as a whole.

(2) …the persecution here would result in a full acceptance by Sierra Leonean society of those young women who undergo the practice into adulthood, fit for marriage and to take a full part as women in the life of their communities.

(3) It follows that, however harshly we may stigmatise the practice as persecution for the purpose of article 3, it is not, in the circumstances in which it is practised in Sierra Leone, discriminatory in such a way as to set those who undergo it apart from society… “

[Then there were some tedious legal points suggesting that in particular “young women” is not a social group because you are defining the group by reference to the persecution (which is not allowed). That did seem to me to miss the point that age and gender are characteristics already accepted to be relevant in identifying a “particular social group”.]

In other words, because it is accepted as a cultural and traditional practice and because undergoing FGM leads one to being accepted within society – whereas refusing to undergo it is what results in ostracism and discrimination – FGM is neither discrimination nor persecution.

[Interestingly, the Court of Appeal was made up of two male judges and one female. Guess how they each ruled? Bingo. The men would send Fornah home, the woman would grant her asylum.]

Delivering the first judgement in the House of Lords, Lord Bingham said:

“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. It is nothing to the point that FGM in Sierra Leone is carried out by women… Most vicious initiatory rituals are in fact perpetuated by those who were themselves subject to the ritual as initiates and see no reason why others should not share their experience. Nor is it pertinent that a practice is widely practised and accepted… The contrast with male circumcision is obvious: where performed for ritualistic rather than health reasons, male circumcision may be seen as symbolising the dominance of the male. FGM may ensure a young woman’s acceptance in Sierra Leonean society, but she is accepted on the basis of institutionalised inferiority. I cannot, with respect, agree with Auld LJ that FGM “is not, in the circumstances in which it is practised in Sierra Leone, discriminatory in such a way as to set those who undergo it apart from society”. As I have said, 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. I find no difficulty in recognising women in Sierra Leone as a particular social group for purposes of article 1A(2).”

Accordingly, the appeal should be allowed and asylum granted.

All the other Law Lords in the case agreed, so I will not analyse their judgements in detail. Below, however, are some extracts that I think are worth reading.

Lord Hope:

“Female genital mutilation is carried out in Sierra Leone, as it is in other countries which engage in this practice, as part of a traditional initiation ceremony which involves the whole community. Dr Richard Fanthorpe, who has been studying Sierra Leonian history and culture for over twenty years, has provided an important insight into the background to the practice in the report which he prepared for this case. Ritual initiation into the adult world is a process of sexual separation. Groups of initiates undergo instruction by members of their own sex in powers, prerogatives and social responsibilities specific to that sex in the weeks and months following circumcision or, as he termed it, excision. It is only after initiation that girls are considered fit for marriage and motherhood. In this cultural milieu, entering the adult world wholly male or wholly female is fundamental to the proper ordering of society. The ceremonies involve the whole community. Although much of the instruction takes place in seclusion, the places where this is done are specially prepared and the whole process is carefully planned. While it could conceivably be argued that a person initiated and subjected to the process against her will was the victim of an assault causing wounding, it is impossible to imagine such a case ever reaching a court in Sierra Leone. This is because the Chiefs continue to supply, more or less, the total of day-to-day governance in the provinces. Customary law tends to insulate rural communities from modern systems of justice. Custom is the province of the Chiefs, and many of these men serve actively as patrons of initiation ceremonies.

“On these facts it is not difficult to identify females in Sierra Leone as a particular social group. I use the word “females” as it embraces all women and girls of whatever age… there is a strong element of sexual discrimination in Sierra Leone where patriarchy is deeply entrenched which serves to identify females in that country as a particular social group. The ceremonies for young women are conducted by women. Society as a whole leaves this task entirely to women. No man will interfere with what they do. Discrimination involves making unfair or unjust distinctions to the disadvantage of one group or class of people as compared with others. Women in Sierra Leone are discriminated against because the law will not protect them from female genital mutilation.”

Baroness Hale:

“My noble and learned friend, Lord Bingham of Cornhill, has said everything that needs to be said about [this appeal]. The answer… is so blindingly obvious that it must be a mystery to some why [it] had to reach this House.” (Hear, hear!)

“Unlike most modern constitutions and human rights instruments, the Refugee Convention does not list sex amongst the reasons for persecution which automatically give rise to a claim for refugee status. It does not even list sex amongst the prohibited reasons for discriminating between different classes of refugees in article 3 of the Convention: a proposal to include it was resisted, either on the ground that such discrimination was unthinkable or on the ground that it was inevitable…

“As the UNHCR says…:

“Historically, the refugee definition has been interpreted through a framework of male experiences, which has meant that many claims of women and of homosexuals, have gone unrecognised. In the past decade, however, the analysis and understanding of sex and gender in the refugee context have advanced substantially in case law, in State practice generally and in academic writing. These developments have run parallel to, and have been assisted by, developments in international human rights law and standards…”

“In other words, the world has woken up to the fact that women as a sex may be persecuted in ways which are different from the ways in which men are persecuted and that they may be persecuted because of the inferior status accorded to their gender in their home society…

“Miss Fornah feared that if returned to Sierra Leone she would be subjected to what used to be known in this country as “female circumcision”, is now known here as “female genital mutilation” (FGM), but is increasingly referred to internationally by the more neutral term “female genital cutting”. This is to avoid alienating the communities which practise it. The common aim, however, is to persuade them that it is a harmful and degrading practice which can be stopped without giving up meaningful aspects of their culture…

“The procedures vary from community to community but cannot in any way be compared to the removal of a boy’s foreskin. In the 1997 Joint Statement by the World Health Organisation, UNICEF and the United Nations Population Fund on Female Genital Mutilation, FGM is defined as

“. . . 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.”
Four types were identified:
“Type I Excision of the prepuce, with or without excision of part or all of the clitoris.
Type II Excision of the clitoris with partial or total excision of the labia minora.
Type III Excision of part or all of the external genitalia and stitching/narrowing of the vaginal opening (infibulation).
Type IV Unclassified: includes pricking, piercing or incising of the clitoris and/or labia; stretching of the clitoris and/or labia; cauterization by burning of the clitoris and surrounding tissue; scraping of tissue surrounding the vaginal orifice (angurya cuts) or cutting of the vagina (gishiri cuts); introduction of corrosive substances or herbs into the vagina to cause bleedings or for the purposes of tightening or narrowing it; and any other procedure that falls under the definition of female genital mutilation given above.”

“As the Statement explains, these procedures are irreversible and their effects last a life time. They are usually performed by traditional practitioners using crude instruments and without anaesthetic. Immediate complications include severe pain, shock, haemorrhage, tetanus or sepsis, urine retention, ulceration of the genital region and injury to adjacent tissue. Long term consequences include cysts and abscesses, keloid scar formation, damage to the urethra resulting in urinary incontinence, dyspareunia (painful sexual intercourse) and sexual dysfunction. Infibulation can bring particularly severe consequences, and it may be necessary to cut open the skin to enable intercourse or childbirth to take place. It is likely that the risks of maternal death and stillbirth are greatly increased.

“Nor can the context be compared with male circumcision. As the UNICEF Innocenti Digest, Changing a Harmful Social Convention: Female Genital Mutilation/Cutting (2005) observes:

In the case of girls and women, the phenomenon is a manifestation of deep-rooted gender inequality that assigns them an inferior position in society and has profound physical and social consequences. This is not the case for male circumcision, which may help to prevent the transmission of HIV/AIDS.”

“As can be seen, almost all FGM involves the removal of part or all of the clitoris, the main female sexual organ, equivalent in anatomy and physiology to the male penis. The underlying purposes of doing this are to lessen the woman’s sexual desire, maintain her chastity and virginity before marriage and her fidelity within it, and possibly to increase male sexual pleasure. But these have been translated into powerful social purposes, to initiate girls into full womanhood, to maintain cultural heritage, social integration and social cohesion. Women who have not been cut may therefore face social exclusion and be denied the possibility of marriage and family life. Women themselves are brought up to believe in this as strongly as men. Sometimes, and not surprisingly, women themselves perform the operation as part of an elaborate initiation ceremony. This does not, of course, in any way detract from its purpose in serving and preserving the inferior position of women in the society. Patriarchal societies have often recruited women to be the instruments of the continued subjection of their sex…

“FGM is practised by all indigenous ethnic groups in Sierra Leone, including the Temne tribe to which Miss Fornah belongs, but not by the Krios (Creoles). UNICEF and others estimate that between 80 and 90 per cent of women and girls have undergone it. The form practised is excision of the clitoral hood and/or clitoris. It is carried out at adolescence as part of an elaborate ritual of initiation into the women’s secret societies or Bondo. Uninitiated women are considered to be children, even, according to Dr Richard Fanthorpe, an “abomination”. Entering the adult world wholly male or wholly female is seen as fundamental to the proper ordering of society. The purpose, therefore, is to remove a girl’s potential for maleness. The civil war led to something of a breakdown in or distortion of traditional cultural practices. Since its ending, re-establishing the traditional social order has been seen as a priority by many. NGOs report that mass initiations have been carried out in refugee camps; older girls and women have been initiated; and the well-publicised international efforts against FGM have been countered by active resistance from the women’s secret societies. There is currently no law against FGM and no prospect of the authorities intervening to protect a woman or girl who does not want it…

“[It is hard to explain why Miss Fornah’s case had to reach this House.] We have been referred to case law from many different jurisdictions in which FGM has been held, not only to be persecution, but persecution for a Convention reason. We have been referred to none at all where it has not. The United Kingdom is apparently alone in the civilised world in rejecting such a claim. Nor do we reject them all: the Court of Appeal in P and M had no difficulty in accepting the claim of a young Kenyan Kikuyu woman who feared that her father would force her to undergo FGM.

“It cannot make any difference that the practice is widespread and widely accepted in Sierra Leonean society. As the UNHCR Guidelines remind us, in paragraph 5:

” … harmful practices in breach of international human rights law and standards cannot be justified on the basis of historical, traditional, religious or cultural grounds.”

“There is no doubt that FGM is in breach of international human rights law and standards: indeed, the Secretary of State does not argue otherwise.

“It cannot make any difference that it is practised by women upon women and girls. Those who have already been persecuted are often expected to perpetuate the persecution of succeeding generations, as any reader of Tom Brown’s Schooldays knows.

“Nor can it be seriously doubted that the persecution is visited upon its victims because they are members of a particular social group. It is only done to them because they are female members of the tribes within Sierra Leone which practise FGM. They share the immutable characteristics of being female, Sierra Leonean and members of the particular tribe to which they belong. They would share these characteristics even if FGM were not practised within their communities. Their social group exists completely independently of the initiation rites it chooses to practise.

“The stumbling block seems to have been the fact that FGM is a once and for all event. Once done, it can neither be undone nor repeated. Thus, it was argued, if many members of the group are no longer at risk, because they have already suffered, it can no longer constitute a group for this purpose. But if the group has to be defined only to include those at risk, it then looks as if the group is defined solely by the risk of persecution and nothing more.

“This is a peculiarly cruel version of Catch 22: if not all the group are at risk, then the persecution cannot be caused by their membership of the group; if the group is reduced to those who are at risk, it is then defined by the persecution alone. But the reasoning is fallacious at a number of levels. It is the persecution, not the fear, which has to be “by reason of” membership of the group. Even if the group is reduced to those who are currently intact, its members share many characteristics which are independent of the persecution – their gender, their nationality, their ethnicity. It is those characteristics which lead to the persecution, not the persecution itself which leads to those characteristics. But there is no need to reduce the group to those at risk. It is well settled that not all members of the group need be at risk. There is nothing in the Convention to say that all members have to be susceptible. It should not matter why they are not at risk. If the authorities of a particular State had a policy of mutilating all male members of a particular tribe or sect by cutting off their right hands, we would still say that the intact members of the tribe or sect faced persecution because of their membership of the tribe or sect rather than because of their intactness…

“For these reasons, the particular social group might best be defined as Sierra Leonean women belonging to those ethnic groups where FGM is practised: then it is quite clear that the reason for the persecution is the membership of that group. But it matters not whether the group is stated more widely, as all Sierra Leonean women, or more narrowly, as intact Sierra Leonean women from those ethnic groups. For all of them, the group has an existence independent of the persecution.”

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