FM (FGM) Sudan CG  UKAIT 00060
Date of hearing: 12 February 2007 and 18 April 2007
Date Determination notified: 27 June 2007
|Secretary of State for the Home Department||RESPONDENT|
Significant action is being taken in Sudan, both within government and by NGOs, to combat the practice of female genital mutilation in all its forms. Legal sanctions are, however, unlikely to be applied where a woman has been subjected by her family to FGM.
There is in general no real risk of a woman being subjected to FGM at the instigation of persons who are not family members. As a general matter, the risk of FGM being inflicted on an unmarried woman will depend on the attitude of her family, most particularly her parents but including her extended family. A woman who comes from an educated family and/or a family of high social status is as such less likely to experience family pressure to submit to FGM. It is, however, not possible to say that such a background will automatically lead to a finding that she is not at real risk.
The risk of FGM from extended family members will depend on a variety of factors, including the age and vulnerability of the woman concerned, the attitude and whereabouts of her parents and the location and "reach" of the extended family.
If a woman's parents are opposed to FGM, they will normally be in a position to ensure that she does not marry a man who (or whose family) is in favour of it, regardless of the attitude of other relatives of the woman concerned.
"1. Although the grounds of appeal, upon which permission to appeal was granted, are plainly imprecise and unsatisfactory, the Tribunal on 29 September was satisfied that rule 62(7) of the Asylum and Immigration Tribunal (Procedure) Rules 2005 could not be said to limit our reconsideration of the determination to the issue of FGM in Sudan, as it is set out in those grounds. This was because there is in the Adjudicator's determination an obvious error in the 'Robinson' sense (R v SSHD ex parte Robinson  QB 929), which, if it had been raised in the grounds, would have had a strong prospect of success.
2. At paragraph 6 of her determination, the Adjudicator makes plain that she has misunderstood the nature of the evidence that must be considered in order to determine whether the [first appellant's] protected human rights would be violated on return to Sudan. Evidence as to that issue was not, as the Adjudicator thought, limited to what was in existence at the date of the decision or within 6 months thereof.
3. The Tribunal agreed with Ms Cronin, Counsel for the appellant at the hearing on 29 September, that this erroneous approach infected the entirety of the determination. Thus, at paragraph 22, the Adjudicator found that the [first appellant] had produced no evidence to show that she or her daughters are at particular risk if they return to Sudan. The [first appellant] had, however, produced evidence from [named individual] to the effect that the daughters were at risk of forcible circumcision if returned. Whether the Adjudicator accepted that evidence is not the point; it was evidence before her, yet she discounted it, either because of her error as identified at paragraph 2 above or for some other unvoiced reason."
The evidence of Mr Peter Verney
"well-established in recent years by human rights monitors. Moreover, the regime's agents display various sexual obsessions in their treatment of opponents. It is entirely possible that they might contrive to have the operation carried out, and it is almost certain that they would not prevent or pursue anyone who did carry it out"
on the third and fourth appellants.
"retrogressive steps which have resulted in an increase in frequency of the operation. The regime's propaganda has increased the social pressure to carry out the operation as a quasi-religious act, the obstruction of campaigners and medical workers opposed to the operation, and the arrest not of the circumcisers but of those dedicated to the protection of women."
The government had interfered with
"the respected Ahfad University and the associated Ahfad Clinic because of antagonism to their teachings on women's rights. When the clinic gave family planning assistance and focussed on the eradication of FGM, this was regarded as engaging in 'anti-government activities'. In late 1997, the government confiscated all the equipment from the clinic and closed it for approximately one year."
"relatively progressive among African and Arab countries in its treatment of women – allowing women to drive cars, for example. These embryonic freedoms had been removed by the current regime since 1989. The regime has affected the lives of women in numerous ways. Key issues include its refusal to accept a UN treaty on women's rights and the restrictions on travel and freedom of association, the resurgence of female circumcision, and the use of violent punishment for dress code infringements."
The regime remained "openly scornful of international agreements on the rights of women, despite a few token appointments of women to government and judicial posts". Women who had decided to present evidence to the UN Special Rapporteurs on human rights in Sudan had been interrogated and threatened as a result of their actions. Sudan refused to sign a UN Treaty on women's rights because the country could do without "such strange practices", according to President Bashir on 14 January 2001. In September 2000, the Governor of the State of Khartoum issued a decree barring women from working in many public places, stating that this would uphold Islamic law and "maintain the honour of women". According to the Sudan Human Rights Organisation Annual Report, on 23 June 2001 security forces interrupted a workshop on "democracy and gender issues" organised by the Gender Centre in Khartoum. Mr Verney also referred to press reports from 2003, concerning the flogging of girls for adultery and "not wearing socks".
"only to a very limited extent allowed selected groups to campaign against FGM, usually when it wants to present a moderate face to the western world. But these periods of tolerance are short-lived and insubstantial. In all other respects, it has hindered such work and encouraged instead those who would legitimise FGM in the name of (unjustified) religious orthodoxy."
Those who campaign against FGM are, according to Mr Verney, "almost inevitably drawn from those who oppose the totalitarian regime on other grounds".
"The act of female genital mutilation or cutting (FGM/C) co-involve the removal of all external genitalia (labia and clitoris) with the stitching of the vaginal entrance (known as infibulation or Pharaonic circumcision), or the removal of all or part of the clitoris and labia (misleadingly known as Sunna circumcision). In practice there is a spectrum of severity in which the degree of damage depends not only on the amount of nerve-bearing tissue removed, but also on how much additional harm is caused by untrained surgery carried out in unhygienic conditions."
"FGM I: excision of the prepuce, with or without excision of part or all of the clitoris.
FGM II: excision of the clitoris with partial or total removal of the labia minora.
FGM III: excision of part or all of the external genitalia and stitching or narrowing of the vaginal opening (infibulation)."
"In summer 2005 she attended a meeting at Friends House, Euston, to call attention to the plight of the people of Darfur. This was unusual in that many northern Sudanese have distanced themselves from the Darfur issue, and it indicated that her concerns were sufficiently strong for her to go against the mainstream of northern Sudanese thinking."
The Almroth Report
Mr Verney's evidence (continued)
Evidence of the first appellant
"has pressurised them concerning the practice, telling them that they will not be respected or make a proper marriage if they fail to undergo the practice. She has even offered them her sons' hands in marriage. She is very hostile with me on the phone. She thinks that I have manipulated my husband and challenged the traditions of the family. Her pressure was so intense some years ago that I changed our home telephone number so that she could not contact us."
"very strong views about FGM and their daughters are all circumcised. My girls are viewed very negatively because they are the only uncircumcised girls in the extended family. The whole of my extended family enjoy a prominent position in Sudan because it is one of the prominent families in Khartoum."
The appellant said that her half-brother was a
"senior lawyer and again his daughters are circumcised. I mention these particular family members to explain the social pressure that my daughters and I would be placed under. This pressure would be all the more intense because I am returning there as a separated wife and we will be without my husband's protection. He remains living in Saudi Arabia."
Evidence of Dr Ali
Evidence of third appellant
Evidence of fourth appellant
The Gruenbaum report
"Cutting off the clitoris, the prepuce above the clitoris, the labia minora and the labia majora, followed by the stitching together of the remaining edges of the labia over the urethral and vaginal openings, such that, when healed, only a single tiny opening remains for the passage of urine and menstrual flow. Infibulation has serious negative health consequences for women, making first intercourse at the time of marriage extremely difficult, which often requires surgical incision. In addition to the incidence of infections, haemorrhage, shock, and occasional deaths, first intercourse becomes extremely difficult, childbirth is risky and obstructed labour can cause the development of fistulae (internal openings) that result in urinary incontinence and associated negative social consequences. The 'Sunna' form of FGM is less mutilating, though still considered quite harmful. Usually the prepuce of the clitoris and all or part of the clitoris is removed (clitoridectomy), but the vaginal and urethral openings are not occluded. This form can also have negative health and social consequences for women. Research supports that about 80 per cent of women in Arab and Muslim portions of Sudan have undergone the most severe form of infibulation; most of the remaining women in central and northern Sudan have undergone at least the 'Sunna' form of circumcision."
"usually subject to a degree of authority from other male relatives, including grandfathers, uncles or adult sons. Married women separated from their husbands and lacking in social protection from a husband are generally expected to live with or near their parents or a brother or other kinsman, and a woman living separately cannot offer the protection and social authority equal to that of a home with a resident father."
"a family that strongly supports FGM would cease to do so because of their higher social status. Since [the appellants'] family has continued to pressure the parents to circumcise the daughters, it is by no means guaranteed that they as individuals are 'less likely' to be subjected to it simply because of level of social status."
(a) She could experience the social pressure of being shamed by divorce;
(b) She could lose custody of her children (the law being that from the age of 7 (boys) or 9 (girls) custody lies with the family of the father); and
(c) She could be left "in limbo – partially divorced and not free to remarry".
"is correct in fearing that her daughters have a very high likelihood of facing a risk of female genital mutilation if she returns to Sudan. In addition, the daughters' values and lifestyles described in their statements are distinctly at odds with social expectations for a Muslim middle-class family, in terms of personal freedoms expected, manner of dress, language and education, and expectations concerning freedom and marriage."
(1) Women in Sudan
(2) FGM in Sudan
"Although women are harmed and men are benefited by infibulation, we cannot conclude that the practice is simply a matter of male exploitation of subordinated women. We must first understand how various interest groups conceptualise and justify the practice. Western critics often utilise western values and feminist consciousness in their analysis of infibulation (a common enough reaction especially for feminists schooled in 'consciousness-raising' groups of the 1960s). As a consequence, these analyses portray Sudanese cultural values as examples of 'false consciousness'. Values relating to morality and honour that require Pharaonic circumcision are dismissed. They similarly dismiss as 'unnatural' or perhaps 'maladaptive' the aesthetics of infibulation, that the labia and clitorises are the 'ugly', 'masculine' parts of girls, and removal results in beauty and cleanliness.
Such responses strike many African women scholars as arrogant, especially because western culture has its own aesthetically motivated medical disasters such as silicone breast implants and useless cosmetic surgeries. The ethnocentric views of outsiders fail to recognise the dynamic nature of cultural patterns, imagining 'the other' perhaps as frozen in time, bound by 'traditional' ways of doing things, and as 'prisoners of ritual' who are not rational makers of their own history. But as Edgerton makes clear in his discussion of customs such as Sati in India as well as female circumcision in Africa, insiders to such cultures often have widely differing opinions and disagreements about them (1992:139). Culture, in fact, is far from static, as the cultural debates now raging in Sudan over the issue of female circumcision illustrates."
(3) Risk of FGM in Sudan
(4) Nature of Particular Social Group in relation to FGM
Determination of the appeals
(a) Political opinion
(b) Risk of FGM
(c) Article 3 ill-treatment
(d) Internal relocation
(e) DP5/96 and article 8
"Deportation in cases where there are children with long residence: Policy Modification announced by Under-Secretary of State for the Home Department Mr O'Brien on 24 February 1999.
3.1 Whilst it is important that each individual case must be considered on its merits, there are specific factors which are likely to be of particular relevance when considering whether enforcement action should proceed or be initiated against parents who have children who have lengthy residence in the United Kingdom. For the purpose of proceeding with enforcement action in a case involving a child, the general presumption is that we would not usually proceed with enforcement action in cases where a child was born here and has lived here continuously to the age of  or over, or where, having come to the United Kingdom at an early age, they have accumulated [seven] years or more continuous residence. However, there may be circumstances in which it is considered that enforcement action is still appropriate despite the lengthy residence of the child, for example in cases where the parents have a particularly poor immigration history and have deliberately seriously delayed consideration of their case. In all the cases, the following factors are relevant in reaching a judgment on whether enforcement action should proceed:
- The length of the parents' residence without leave; whether removal has been delayed through protracted (and often repetitive) representations or by the parents going to ground;
- The age of the children;
- Whether the children were conceived at a time when either of the parents had leave to remain;
- Whether return to the parents' country of origin would cause extreme hardship for the children or put their health seriously at risk.
- Whether either of the parents has a history of criminal behaviour or deception.
3.2 It is important that full reasons are given for making clear that each case is considered on its individual merits."
"A child who has spent a substantial, formative part of life in the UK should not be uprooted without strong reason and that is why we are changing the time-limit from ten to seven years for families with young children who have been unable to establish a claim to remain.
We are committed to delivering a system of immigration control which is firm but also fair. Those who are not entitled to be here should be removed.
However for those who have been in this country for a long time we need to recognise that they will have become established within their community."
Country Guidance in HGMO (Relocation to Khartoum) Sudan CG  UKAIT 00062
Summary of findings on risk of FGM in Sudan
(i) allowing the appeals of the first, third and fourth appellants on asylum grounds and on human rights grounds (article 3);
(ii) allowing the appeals of the first, second and fifth appellants on human rights grounds (article 8) and because the decision of the respondent is not in accordance with the law.
Senior Immigration Judge P R Lane
Documents submitted on behalf of appellants:-
Documents particular to the appellants
"Clearance Certificate" from the Office of the Director of Khartoum Province Education Directorate (June 1980)
Correspondence with MK Solicitors (2002)
First appellant's letter in response (undated) raising FGM claim
Respondent's letter of refusal and refusal notice to appellants (13 December 2002)
Notices of appeal
Letters regarding status and progress of appeal (2003 and 2004)
Witness statements of first appellant, KH and Dr ME
Statements of first appellant, BR, third appellant, fourth appellant, Dr OAA and birth certificates
Photographs of first appellant's knee and scar from her injuries caused in order to circumcise her
Photographs of appellant demonstrating in United Kingdom
Photographs of appellant at a meeting in the United Kingdom
Documents relating to children's schooling
Example of petition against the dumping of radioactive waste in Sudan
Photographs of third and fourth appellants at school and with friends
Music and drama department award – Heston Community School (2004)
Further school reports, photographs, letters from head teachers, certificates, etc.
Various school reports and certificates relating to educational qualifications obtained in Pakistan
Report of Dr Ellen Gruenbaum (2 February 2007)
Report of Mr Peter Verney (2007)
General evidence relating to FGM in Sudan and political issues
Ellen Gruenbaum: "The Cultural Debate over Female Circumcision: The Sudanese are Arguing this One Out for Themselves; The Movement Against Clitoridectomy and Infibulation in Sudan; The Islamist State and Sudanese Women" (various dates)
The US State Department: Sudan: Report on Female Genital Mutilation or Female Genital Cutting (June 2001)
UNICEF "Changing a Harmful Social Convention Female Genital Mutilation/Cutting" (2005)
US State Department Report on Female Genital Mutilation in Sudan (2001)
Amnesty International Sudan: "Empty Promises - Human Rights Violations in Government Controlled Areas" (July 2003)
SHRO press release:" Under Emergency Law, Continuous Losses in Lives and Property" (May 2005)
IRIN Khartoum (25 May 2005)" Sudan Living with the Trauma of FGM"
Leaflet from Jewish Forum for Justice and Human Rights: Darfur's Killing Fields (June 2005)
AI News Flash: "Human Rights Activists Harassed by National Security" (26 July 2005)
OHCHR Special Report, Access to Justice for Victims of Sexual Violence (29 July 2005)
Voice of America News, News Report, Sudanese Women Seeking Divorce Find Themselves in Prison (18 August 2005)
Voice of America News FGM Widely Condemned Still Rampant in Sudan (November 2005)
UNICEF: Female Genital Mutilation – A Statistical Exploration (2005)
Article from Sudan Online.com: First London Symposium on Greek Nuclear Waste Disposal in Sudan (18 January 2006)
Memorandum to Basel Convention in Switzerland (January 2006)
US State Department Report Sudan (March 2006)
OHCHR Report of the Special Representative of the Secretary General on the Situation of Human Rights Defenders (March 2006)
SHRO newsletter Human Rights and Humanitarian Organisations at Risk in Sudan (March 2006)
Annual Report on the Human Rights Situation in Sudan (March 2005-March 2006)
ACCORD Sudan 10th ECOI Seminar Report (20 April 2006)
Human Rights First: USA News Report: Support Sudanese Rights Group Facing Persecution (May 2006)
World Health Organisation: New Study Shows Female Genital Mutilation Exposes Women and Babies to a Significant Risk at Childbirth (June 2006)
SHRO Arbitrary Detention of Two Human Rights Defenders (July 2006)
Freedom House, Annual Report (6 September 2006)
World Organisation Against Torture, News Report, Sudan Wave of Arbitrary Arrests (September 2006)
Sudanese Human Rights Quarterly, Issue 22 (September 2006)
"SHRO Arbitrary Arrests/Harassment" (October 2006)
Letter from Darfur Centre for Human Rights and Development (December 2006)
Amnesty International Report on Sudan (2006)
Human Rights Watch World Report 2007: Chapter on Sudan
Article: "Re-circumcision: the Hidden Evil of Female Genital Mutilation in Sudan"
UNICEF Sudan Female Genital Mutilation Country Profile
Female Genital Mutilation Fact sheet
Sudanese Network to Eradicate FGM "Female Circumcision is an Abuse of the Right to Life"
Post-mortem of Inaam with Translation: "A 4 year old girl who died from infection after extensive FGM involving total removal of external genitals"
"Imam Saddiq Al-Mahdi states his opinion on female circumcision": Future Family Magazine
Article from Voice of America News: Blair calls situation in Darfur "totally unacceptable"
"Time to protect Darfur" leaflet
Documents submitted on behalf of respondent:-
"Sudan Government to Ban FGM": Global Health Council Document of 3 September 2003
Protocol to the African Charter on Human and People's Rights on the Rights of Women in Africa – Africa Union: 11 July 2003
"Sudan: Living With the Trauma of FGM" – IRIN News.org article (May 2005)
"Sudan: Religious Leader Speaks Out Against Female Genital Mutilation/Cutting UNICEF document (November 2005)
"Genital Mutilation of Girls in Sudan – Community and Hospital-Based Studies on Female Genital Cutting and its Sequelae" – Karolinska Institutet, Stockholm (the Almroth report) (December 2005)
"Make FGM History in Sudan Campaign" – article produced by Foundation for Women's Health, Research and Development (post-dates December 2005)
US State Department Report on Sudan (March 2006)
UNICEF Hails Progress Towards Ending Female Genital Cutting
"Home Office Operational Guidance Note on Sudan (May 2006)
"End Female Genital Mutilation" – African Union – Sudan Tribune article (June 2006)
Selection of papers from Sudan National Committee on Traditional Practices (SNCTP) (October 2006)
Operational Guidance Note on Sudan (November 2006)
COI Report on Sudan (January 2007)