Female Genital Mutilation and the Assessment of Risk by Immigration and Asylum Tribunals

Abstract

This thesis considers the assessment by Immigration and Asylum Tribunals of the risk of Female Genital Mutilation (FGM) to asylum claimants on return to their countries of origin. The thesis critically analyses both reported and unreported cases of the Upper Tribunal from a socio-legal perspective. It is argued that there is a misalignment between the de jure and de facto position in relation to these claimants. The formal structure of the law developed slowly, in the absence of gender as a Refugee Convention reason, but the place of FGM claimants within refugee law is now clearly recognised. However, significant concerns remain about the substantive application of the law and the lack of accuracy, reliability, and consistency in these decisions. The thesis demonstrates that excessive corroborative burdens are imposed on FGM claimants to prove their cases to a higher standard than legally required. Furthermore, the FGM claimant herself faces other obstacles; the focus on a single act of future persecution generates issues in collating sufficient evidence to convince tribunals of the risk, given the absence of past harm. This is aggravated by difficulties in attaining information of persecution occurring in the private sphere. The differing approaches of the tribunals and other courts are examined, with particular reference to their treatment of children at risk of FGM. The thesis also presents a juxtaposition between the legal and factual positions in many FGM-practising countries; frequently laws banning the practice have been enacted, but ineffectively implemented. There is a misalignment between Home Office policy, to view laws and government initiatives as demonstrating state protection, and the asylum seeker’s experience that the laws are ineffective at preventing FGM. This approach is filtered through to tribunal decision-making. Whilst the legal test is whether the state offers effective protection against persecution, in practice parental opposition to FGM and self-sufficiency are used to refuse claims. It is argued that this represents a thin construction of the risk, ignoring state structures and cultural pressures in societies that practise FGM. Reforming and monitoring the currently deficient country guidance system is suggested to improve decision-making for claimants at risk of FGM. Further recommendations for judicial guidance are also proposed. It is recommended that FGM is given special recognition for its egregious nature, and FGM applicants recognised as vulnerable, given the heightened difficulties in proving risk of future serious harm in the absence of past persecution.

Date of Award	31 Dec 2023
Original language	English
Awarding Institution	The University of Manchester
Supervisor	Robert Thomas (Supervisor) & Javier Garcia Oliva (Supervisor)