Refugees

• Author: International Law Group
• Pages: 229-233

Page 229

The question before the House of Lords is whether the [second] Appellant, Ms. Fornah (FC), falls within the familiar defi nition of "refugee" in Article 1A(2) of the 1951 Convention Relating to the Status of Refugees and the 1967 Protocol thereto. It is accepted that the Appellant does have a well-founded fear of being persecuted if she were to be returned to her home country of Sierra Leone.

The Appellant is outside the country of her nationality and is unable or, owing to her fear of female genital mutilation (FGM), unwilling to avail herself of the protection of her country. The controlling legal issue under the Convention is whether the Appellant's well-founded fear is of being persecuted "for reasons of ... membership of a particular social group".

The Secretary of State's acceptance that Article 3 of the European Convention on Human Rights and Fundamental Freedoms precludes the return of the Appellant to her home country somewhat reduces the practical importance of this issue to the Appellant. But the Secretary of State contends, and the Court of Appeal has held, that such treatment, although persecutory, would not be "for reasons of ... membership of a particular social group" and therefore the Appellant falls outside the Convention defi nition of "refugee." The correct understanding of this expression is also a question of practical importance since the Appellant would enjoy stronger protection if recognized as a refugee.

The Appellant was born in Sierra Leone in May 1987. She arrived in the United Kingdom in 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 FGM.

In 1998, the Appellant and her mother were living in her father's family village to escape the civil war. There she overheard discussions about her undergoing FGM as part of her initiation into womanhood. In order to avoid this she ran away. A band of rebels captured her and its leader repeatedly raped her causing her to become pregnant. An uncle 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. There she feared that the villagers would force her to submit to FGM.

FGM is performed on the overwhelming majority of girls in Sierra Leone. The various types of operation, usually performed by nonmedical persons under crude and unsanitary conditions, cause excruciating pain. It can give rise to serious long-term ill-effects, physical and mental, and it is sometimes fatal. Older women who belong to various secret societies, carry out the operation.

The culture looks upon FGM as a rite of passage from childhood to full womanhood, symbolized by admission of the initiate to these secret societies. Because of its totemic signifi cance, some women welcome the practice and almost all accept it. Society as a whole in Sierra Leone generally goes along with the practice and the authorities do little to curb or eliminate it.

The practice of FGM powerfully reinforces and expresses the inferior status of women 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 to that of a minor child. Under customary law, for example, a wife is obliged always to obey her husband; she can refuse sexual intercourse with him only in limited circumstances. She is also subject to chastisement at his hands.

A long series of international instruments, declarations, resolutions, pronouncements and recommendations has condemned FGM as cruel, discriminatory and degrading. A recent Report of the U. N. Special Rapporteur on violence against women (E/CN.4/2002/83, January 31, 2002, Introduction, ¶ 6) declares: "Nevertheless, many of the...