Upper Tribunal (Immigration and asylum chamber), 2021-02-25, [2021] UKUT 108 (IAC) (GW (FGM and FGMPOs) (CG))
| Jurisdiction | UK Non-devolved |
| Judge | The Hon. Mr Justice Lane, President, Upper Tribunal Judge Blundell, Upper Tribunal Judge Stephen Smith |
| Subject Matter | FGM and FGMPOs) (CG |
| Date | 25 February 2021 |
| Published date | 29 April 2021 |
| Status | Reported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Hearing Date | 14 December 2020 |
| Appeal Number | [2021] UKUT 108 (IAC) |
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Upper Tribunal (Immigration and Asylum Chamber) |
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GW (FGM and FGMPOs) Sierra Leone CG [2021] UKUT 0108 (IAC)
THE IMMIGRATION ACTS
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Heard at Field House |
Decision & Reasons Promulgated |
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On 8 October and 14 December 2020 |
On 25 February 2021 |
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Before
THE HON. MR JUSTICE LANE, PRESIDENT
UPPER TRIBUNAL JUDGE BLUNDELL
UPPER TRIBUNAL JUDGE STEPHEN SMITH
Between
(1) GW (SIERRA LEONE)
(2) FM (GAMBIA)
(ANONYMITY DIRECTIONS MADE)
Appellants
and
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the First Appellant: Ms A Weston QC and Ms G Brown of counsel, instructed by Luqmani Thompson & Partners Solicitors
For the Second Appellant: Mr R De Mello of counsel, instructed by Fountain Solicitors
For the Respondent: Ms C Van Overdijk of counsel, instructed by the Government Legal Department
Law
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Under the Female Genital Mutilation Act 2003, as amended, a Female Genital Mutilation Prevention Order (“FGMPO”) may be issued by a Family Court to protect against a domestic or extraterritorial threat of FGM.
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Where a person (“P”) seeks international protection in reliance on a threat of FGM in a country to which she might otherwise be lawfully removed, the fact that an FGMPO is made to protect P against such a threat is likely to be a relevant consideration in the assessment of P’s protection claim. That is particularly so when the FGMPO has extraterritorial effect in the proposed country of return.
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Where P is subject to immigration control, a judge sitting in the family jurisdiction cannot restrain the Secretary of State for the Home Department from removing P from the United Kingdom. That applies equally to FGMPOs as it does to other orders issued in family proceedings.
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Neither the respondent nor a judicial decision-maker considering P’s claim for international protection is bound by an FGMPO or by the judgment which precedes it. That decision has no precedential effect in the protection appeal: SSHD v Suffolk County Council & Ors [2020] EWCA Civ 731; [2020] 3 WLR 742.
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Neither the FGMPO nor the judgment in the family proceedings provides a default position or a starting point, in the Devaseelan [2003] Imm AR 1 sense, for the assessment of the claim for international protection; and principles of judicial comity do not require a judicial decision-maker who is considering P’s claim for international protection to reach the same findings of fact as the judge who made an FGMPO to protect P.
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An FGMPO made in favour of P is, instead, a potentially relevant matter in the assessment of P’s claim for international protection. To determine the weight which should properly be given to the FGMPO, a judicial decision-maker should consider:
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the extent to which the Family Court’s assessment addresses (‘maps over’) the same or similar factual issues to those considered in the protection appeal;
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the extent and the cogency of any reasons given by the Family Court for making the order; and
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the similarity of the evidence before the Family Court and the judicial decision-maker in the protection appeal.
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Even in cases in which it is appropriate to attach significant weight to judicial assessment in the family proceedings of the risk of FGM in the proposed country of return, it remains for the judicial decision-maker in the protection appeal to consider whether there might be a sufficiency of protection or an internal relocation alternative in that country. In considering the former question, the existence of an extraterritorial FGMPO might in itself provide a measure of protection on return.
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Where P seeks international protection in reliance on a risk of FGM and her claim is refused by the respondent, the fact that an FGMPO is subsequently made in P’s favour is not a new matter for the purpose of s85 of the Nationality, Immigration and Asylum Act 2002.
Country Guidance
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Sierra Leonean women are today among the most marginalized in the world, socially, economically and politically.
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The Bondo society, which is extremely powerful and influential in Sierra Leone, has an entrenched role in tribal and political life in the country, and membership confers social status and respect, even opening doors to tribal chief posts and government jobs. It continues to play a leading role in the social, religious and political life of communities. It is an integral part of life in Sierra Leone. Politicians are at pains to gain the support of Bondo societies and thereby the votes of those under their influence. The power of the Bondo society and relationship between the Bondo society and politicians ensures that the authorities typically do not get involved in the issue of FGM. Male interference in Bondo Society matters is ‘known’ to have terrible consequences – like disease and death or developing an extended (‘female’) scrotum, or “elephantiasis of the testicles.” Neither state courts nor members of the police are likely to intervene in cases involving initiation into Bondo which has its own laws that are more effective and inescapable than state law.
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Bondo societies exist in every village and town across Sierra Leone and are a vital communications link between politicians and rural communities. Whether a girl/woman is a Christian or a Muslim has little influence on her risk of being subjected to FGM and initiated into the Bondo society. Rather, this will depend on her ethnic identity/identities and on the traditions and customs of the ethnic and local group/s she and her parents belong to. Where marriages between Fula women and Krio men are concerned, the Fula wife will often insist on maintaining her Fula traditions and customs because as a dispersed diaspora, the Fula are particularly keen on upholding their traditions also in interethnic marriages which are less common among the Fula than among other groups.
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Excision takes place within the context of a secret society—the Bondo Society. Excised women and girls automatically become members of the Bondo, which is operated by “powerful” women called ‘Digba’ or ‘Sowei’ who have consistently laid claim to cultural expertise with regard to the practice.
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Girls and women are expected to have undergone the Bondo initiation ceremony before marriage, and are ostracized, called names, and even abused, if they do not. It is a cultural norm in Sierra Leone. If a young woman has not been “cut” before the age of 18, she can still be subjected to the process, either forcibly or by choice. She is still expected to undergo the initiation and FGM in order to be eligible for marriage.
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Soweiship is often hereditary and handed down from generation to generation. The institution itself is synonymous with women’s power, their political, economic, reproductive and ritual spheres of influence. Excision, or removal of the external clitoral glans and labia minora, in initiation is a symbolic representation of matriarchal power. The ban on FGM during the Ebola crisis is not continuing. Once the Ebola crisis was over in 2015 there was a return to ‘business as usual’.
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The overall effectiveness of the police in providing protection is limited by endemic corruption and a lack of resources. A number of NGOs campaign for the abolition of FGM, but these generally work in advocacy, and would not be able to provide protection. There are women’s organisations in Sierra Leone making efforts to improve women’s position in society, but they do not function as shelters. With millions of Sierra Leonean women suffering violence these NGOs are unable to protect women from domestic and sexual violence perpetuated against them within their own families and communities.
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A young single woman without family support is at high risk of destitution, exploitation and abuse resulting from her unwillingness to adhere to the customs of the Bondo Society, which result in her marginalisation. Single women in particular are in need of family support and a male companion in order to be able to live a relatively secure life away from home, which may be impacted by the lack of initiation by way of undergoing FGM. This is true for towns and villages alike, the latter being even less accessible because people tend to live a more traditional life there than in towns. They live in clans and extended families which would have no access to and which do not let strangers become members. Whether in urban or rural areas, it is not possible for a single young woman to find protection and accommodation without a reliable kin/ethnic/social network if as a result of her decision to reject initiating to the Bondo society, thus undergoing FGM,...
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