France - CNDA, 12 March 2009, Miss K, n°639908 and Ms. D., n°638891

Facts:

Miss K. was born in France on 12 April 2007. Her father is a Malian national holding a regular residence permit, whereas her mother (Ms. D) is a Malian national without any residence permit in France. Ms. D. argued that her daughter Miss K. would be subject to FGM if returned to Mali and she would not be able to protect her from this mutilation. The French Office for the Protection of Refugees and Stateless Persons (Ofpra) rejected their applications for asylum. Before the Cour Nationale du Droit d’Asile (National Asylum Court)  (CNDA), Ms. D. argueed that Miss K. should be recognised as a refugee or,  should be granted subsidiary protection. Ms. D. claimed that she herself should benefit from the principle of family unity.   

Decision & reasoning:

Regarding refugee status, the Court stated firstly, as a principle, that “in countries with a high prevalence of FGM, persons who have demonstrated that they were opposed to this practice for themselves or who refused to subject their minor children to it, have thus infringed the customary norms of their country of origin and therefore face violence targeted against them, as well as the risk that their minor daughters might  face FGM against their will; that they can be considered as having a well-founded fear of being persecuted for reasons of membership of a particular social group within the meaning of Article 1A(2) of 1951 Refugee Convention, when they are not able to be protected by the public authorities of their country”.

In the case of the daughter (Miss K.), the Court considered however that she was born in France on 12 April 2007 and could not, because of her young age, demonstrate her refusal to be subjected to FGM. She was therefore not entitled to refugee status.

In the case of the mother (Ms. D.), the Court considered however that the parents of children who were born in France, where FGM is criminalised, cannot be considered as members of a social group for the only reason that they refrained from subjecting their child to FGM. The Court considered that, on this fact alone, the mother did not infringe the customary norms of her country of origin and that it did not appear from the case file that she would face persecution for this reason if returned to Mali. She was therefore not entitled to refugee status.

Regarding subsidiary protection, the Court considered, in the case of the daughter (Miss K.), that she would be subject to FGM if returned to her country of origin without being able to benefit from the protection of the Malian authorities and that this serious and irreversible mutilation constitutes a degrading and inhuman treatment. The Court also noted that there was an real risk that she could return to Mali, given the fact that her mother was undocumented in France and that her father threatened to return to Mali with her.

In the case of the mother (Ms. D.), the Court considered that the risk for a parent that her daughter could be subjected to FGM against her will does not amount to an inhuman or degrading treatment justifying the granting of subsidiary protection to her personally. The Court considered however that given the fact that her daughter was granted subsidiary protection, the effective implementation of this protection required that the child is not separated from her mother. In the absence of any legislative provision granting a fully-fledged residence permit to the mother of a minor child benefitting from subsidiary protection, the same protection must be extended to the mother, except if her presence constitutes a threat against public order.

Outcome:

Subsidiary protection was granted to Miss K. and to Ms. D.

Observations/comments:

Article L.712-1 Ceseda reads [unofficial translation]:
“Subject to the provisions of Article L. 712-2 [exclusion], subsidiary protection is granted to any person who does not qualify for refugee status under the criteria defined in Article L. 711-1 and who establishes that she/he faces one of the following serious threats in her/his country:
a) death penalty;
b) torture or inhuman or degrading treatment or punishment;
c) serious, direct and individual threat to a civilian’s life or person by reason of generalised violence resulting from a situation of internal or international armed conflict”.

On the same day (12 March 2009), other similar decisions were made by the CNDA, in plenary session (cases n°639907, n°639909, n°637716, n°637717). These decisions limit the scope of the so-called “Sissoko” case law for young girls who were born in France. According to this case law (inspired by the decisions CRR, Sections réunies, 7 décembre 2001, Sissoko, n°361050 et n°373077), refugee status is recognised to asylum applicants who have fears of persecution because they refused to subject their children to female genital mutilations in their country of origin.

Regarding the issue of family unity in the context of subsidiary protection, this decision gives a distinct interpretation than the Council of State in its decision CE, 18 décembre 2008, Ofpra c. Mme A., n° 283245; also summarised in this database.