Germany - Administratvive Court Münster, 11 K 413/09.A, 15 March 2010

Facts:

The applicant is Nigerian citizen of Catholic belief and belongs to the Urhobo ethnic group. She entered Germany in December 2008 by plane from Lagos and applied for asylum. The applicant presented her claim as follows: She studied in Benin from 2002 to 2006. After finishing her studies, her father told her that he had found a husband for her. He was an older Muslim with five wives. In December 2006, her father brought her to the man’s house and left her there. At first, she tried to talk to this man, however, this was pointless. He beat and raped her. After three weeks she escaped. With a friend’s support she went to Lagos. After some time, however, her father and the man discovered her whereabouts and she managed to find a different hiding place. Due to the increasing threat she no longer felt safe in Lagos and decided to leave the country. Furthermore, she was at risk of being circumcised. This is a tradition among the Urhobos and is also performed in her family.

The asylum authorities rejected her application. The applicant appealed this decision.

Decision & reasoning:

The applicant was neither entitled to asylum under German law nor to refugee status.  However, the applicant was eligible for protection from deportation under Section 60 (7) sentence (1) of the Residence Act. The court stated:

Forced marriage and female genital mutilation in Nigeria do not constitute suitable reasons to justify the assumption of political persecution. Notwithstanding the severity of such an infringement to physical integrity, the danger of circumcision does not constitute political persecution because of membership of a particular social group. Political persecution, according to the case law of the Federal Constitutional Court regarding the constitutional right to asylum (also applicable under Section 60 (1) of the Residence Act), exists when the individual is targeted through the violation of a legal right that is protected under asylum law, singling him/her out from the overall peaceful order of the state because of the intensity of the infringement. In the present case, the exclusion of the applicant from the overall peaceful order of the state was missing. Still, undergoing circumcision is very important to finding an appropriate place in the society. Assuming, according to local understanding, that circumcision aims at including the girls and women concerned as fully fledged members of society and, by this, providing the family with social recognition, while,  in contrast, the refusal to undergo circumcision would exclude the persons concerned and their families from society, one cannot suppose that circumcision has an excluding character. It is rather the uncircumcised woman, who is not respected and excluded, socially and economically. The disapproval may even result in the women’s and girls’ exclusion by their families and the village community. This exclusion may potentially have a severe negative impact on the person’s life and limb, particularly when a minor originating from a poor family has to try to make a living under the difficult circumstances for single women in Nigeria, without support of her extended family.

However, this exclusion of uncircumcised women, that might even threaten their existence, does not justify the conclusion that they are politically persecuted, because the Nigerian state cannot be held responsible for the risks to life and limb as a result of their exclusion from family and the village community. Hunger, lack of shelter, insufficient health care etc. are not rights violations originating from the state or rights violations the state might be held responsible for, inflicted intentionally on a specific woman because of her refusal to be circumcised, but are a consequence of the social and economic circumstances. 

These explanations imply at the same time that even the forced marriage with a Muslim, invoked by the applicant in the context of circumcision, cannot be attributed the character of political persecution. Although forced marriages are still widespread in Nigeria, but not quite as much as circumcisions, they are also rooted in traditional self-image and have their origin in archaic-patriarchal ideas. In any case, an exclusion from the overall peaceful order of the state is missing, since the forced marriage is part of the tradition and the social circumstances, as is also demonstrated in the present case of the applicant.

However, the applicant is eligible for protection from deportation under Section 60 (7) (1) of the Residence Act. There is a high likelihood that in case of her return she would be in extreme danger, due to her personal circumstances, taking into consideration the conditions of life in Nigeria. For unmarried women, due to the generally difficult economic situation combined with the relevance of family and clan ties in Nigerian society, it is extremely difficult to settle down elsewhere without the support of her family. A woman who turns away from her extended family or who is an outcast is threatened by social and socio-economic marginalisation. For single women, it is generally very difficult to find shelter and a professional occupation.

The applicant has escaped from the threat of circumcision and the forced marriage with an older Muslim, arranged by her father. In case of return to Nigeria, she would be at risk of falling victim to violent attacks and threats by her father, who is willing to return the applicant by use of force to the man to whom she is committed to by marriage. Furthermore, the applicant is at risk of falling victim to circumcision.

Outcome:

The asylum authorities were obliged to grant the applicant protection from deportation under Section 60 (7) sentence (1) of the Residence Act.

Subsequent proceedings:

Not known.

Observations/comments:

It is disputed whether a risk of female genital mutilation (FGM) because of membership of a particular social group constitutes political persecution. In the present decision, and in the following decisions cited by the court, FGM did not constitute political persecution: Administrative Court Münster, 23 August 2006, 11 K 473/04.A; Administrative Court Münster, 11. October 2007, 1154/04.A; Administrative Court München, 13 July 2005, M 26 K 00.50542.

However the following cases, also cited by the court, found that FGM did constitute political persecution: High Administrative Court Hessen, 23 March 2005. 3 UE 3457/04.A; Administrative Court Stuttgart, 10 June 2005, A 10 K 13121/03; Administrative Court Köln, 3 March 2005,16 K 586/01.A, as well as the Administrative Court Aachen, 10 May 2010, 2 K 562/07.A (summarised EDAL).

Section 60 (7) of the Residence Act

(7) A foreigner should not be deported to another state in which a substantial concrete danger to his or her life and limb or liberty applies. A foreigner shall not be deported to another state in which he or she will be exposed, as a member of the civilian population, to a substantial individual danger to life or limb as a result of an international or internal armed conflict. Dangers pursuant to sentence 1 or sentence 2 to which the population or the segment of the population to which the foreigner belongs are generally exposed shall receive due consideration in decisions pursuant to Section 60a (1), sentence 1.

(Available at www.gesetze-im-internet.de/englisch_aufenthg/englisch_aufenthg.html#p0718