The European Court is to rule on the case of an Irish-based African mother who fears her children will be subjected to female genital mutilation if she is forced back to Nigeria. Such treatment is classified by the UN as torture - but there's no agreement on how to counter it, writes CAROL COULTER.
THE CASE of Pamela Izevbekhai, which is now going to the European Court of Human Rights in Strasbourg, highlights the practice of female genital mutilation widely carried out in many African and some Asian countries, and the response of asylum decision-making bodies in Europe.
The practice of removing parts of a girl's genitals before she can be considered an adult pre-dates the advent of religions such as Islam and Christianity, and is deeply rooted in countries like Egypt, Sudan, Togo, Kenya and Nigeria. It can lead to death through severe bleeding, neurogenic shock as a result of pain and trauma, or infection and septicaemia. It also leads to ongoing medical, gynaecological and psychological problems for many of those who endure it.
The UN has characterised it as torture, and has said that states have the responsibility to take all the necessary measures to eradicate it. The UN Special Rapporteur on Torture, Manfred Novak, considers that it falls within his mandate and has raised his concerns with the governments of states where it is prevalent.
In many of those states it is either outlawed by domestic law (like in Egypt), or the states have signed up to international conventions against torture, which cover it. The Nigerian government has stated its opposition to the practice, and its constitution outlaws inhuman and degrading treatment.
However, this has not brought the practice to an end, and it is estimated as being prevalent in about 25 per cent of Nigeria. The Nigerian government is ineffective in its enforcement of its policy, according to Siobhán Mulally, law lecturer in UCC and chairwoman of the Refugee Council.
The risk of being subjected to female genital mutilation has formed the basis for claims for asylum status. The first state to recognise it as a ground for granting asylum was the United States, where a girl from Togo was granted refugee status when the risk she was under was recognised as persecution. Since then, other countries have also granted asylum on this basis.
The High Court has also ruled that female genital mutilation falls within the definition of inhuman and degrading treatment. However, when a person faced with this threat seeks asylum, the Office of the Refugee Applications Commissioner and the Refugee Appeals Tribunal will assess, not whether the threat exists, but whether there is adequate protection from it in the woman's or girl's country of origin.
Such protection can come in two forms - either the existence of laws and structures to which women can appeal for protection, or the possibility of relocation within the country to a place where the practice is not carried out and where they will be safe from those wishing to impose it.
Noeline Blackwell, who is an asylum expert and director of Flac, the legal rights organisation, said that relocation is often not an option for a young person in Nigeria. "It is not like saying to a young person to go from Cork to Dublin," she said, adding that a young woman in Nigeria comes under the control of her parents until she marries, and is then under the control of her husband and his family.
The use of relocation internally as an answer to the threat of inhuman and degrading treatment has been examined by the European Court of Human Rights, according to Mulally, where it found that this has to be a reasonable option in all the circumstances of the case. This took into account the personal and economic circumstances of the applicant, and his or her ability to move around. "Ireland is very progressive in recognising gender-based violence in the Refugee Act," she said. "But there are no guidelines on implementing a protection regime, or on looking at relocation from a gender perspective."
The European Court in Strasbourg will now be looking at whether it is reasonable to expect the Izevbekhai family to relocate in all the circumstances of the case, and whether it will be safe. Even if it finds it is not, this will not endow refugee status. It will mean, however, that the family cannot be sent back.
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