Hungary – Metropolitan Court, 16 January 2009, L.M.N. v. Office of Immigration and Nationality, 17.K.32.826/2007/15
Keywords:
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Credibility assessment
Description
Assessment made in adjudicating an application for a visa, or other immigration status, in order to determine whether the information presented by the applicant is consistent and credible. |
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Internal protection
Description
Where in a part of the country of origin there is no well-founded fear of being persecuted or no real risk of suffering serious harm and the applicant can reasonably be expected to stay in that part of the country. |
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Persecution Grounds/Reasons
Description
Per Article 1A ofthe1951 Refugee Convention, one element of the refugee definition is that the persecution feared is “for reasons of race, religion, nationality, membership of a particular social group or political opinion“. Member States must take a number of elements into account when assessing the reasons for persecution as per Article 10 of the Qualification Directive. |
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Membership of a particular social group
Description
One of the grounds of persecution specified in the refugee definition per Article 1A ofthe1951 Refugee Convention. According to the Qualification Directive, membership of a particular social group means members who share an innate characteristic, or a common background that cannot be changed, or share a characteristic or belief that is so fundamental to identity or conscience that a person should not be forced to renounce it, and that group has a distinct identity in the relevant country, because it is perceived as being different by the surrounding society. Depending on the circumstances in the country of origin, a particular social group might include a group based on a common characteristic of sexual orientation. Sexual orientation cannot be understood to include acts considered to be criminal in accordance with national law of the Member States: Gender related aspects might be considered, without by themselves alone creating a presumption for the applicability of this concept. |
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Gender Based Persecution
Description
‘Gender-related persecution’ is used to encompass the range of different claims in which gender is a relevant consideration in the determination of refugee status. Gender refers to the relationship between women and men based on socially or culturally constructed and defined identities, status, roles and responsibilities that are assigned to one sex or another. Gender is not static or innate but acquires socially and culturally constructed meaning over time. Gender-related claims may be brought by either women or men, although due to particular types of persecution, they are more commonly brought by women. Gender-related claims have typically encompassed, although are by no means limited to, acts of sexual violence, family/domestic violence, coerced family planning, female genital mutilation, punishment for transgression of social mores, and discrimination against homosexuals." |
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Female genital mutilation
Description
Female genital mutilation (FGM) comprises all procedures that involve partial or total removal of the external female genitalia, or other injury to the female genital organs for non-medical reasons. |
Headnote:
The Kenyan applicant was a potential victim of female genital mutilation (FGM) and she faced forced marriage upon return. The Court stated that even if there was a risk of persecution in case of a return to the country of origin, the applicant could reasonably be expected to relocate internally as it was feasible in the circumstances.
Facts:
The Office of Immigration and Nationality (OIN) wrongly claimed that the applicant had already undergone FGM and on this finding dismissed her asylum claim as not credible. The application was rejected based on the argument that the applicant could not substantiate the risk of personal persecution or the fact that she would be a victim of harassment in case of returning to Kenya. The OIN claimed that the Kenyan government is willing to eliminate the practice of FGM.
Decision & reasoning:
In the court proceedings the applicant proved (with a gynaecologist’s expert opinion) that FGM was not yet performed on her. Both the asylum authority and the court accepted that the applicant could be subject to persecution on the ground of membership of a particular social group; however, the Metropolitan Court examined the possibility of internal relocation and actors of protection. The court found that, according to country of origin information submitted by the OIN, there were several national and international centres offering support where women could ask for assistance in order to find protection. The court found it was established that upon return to her country of origin she could receive accommodation, food and support.
Outcome:
The appeal was dismissed and the decision of the OIN upheld.
Observations/comments:
The shortcomings of the judgment may be summarised as follows
- The application of the internal protection alternative is based on non-state actors of protection, whereas the Hungarian Asylum Act does not recognise non-state protection (international organisation and local NGOs offering assistance to victims of FGM). When mainly relying on non-state protection, the sustainability of such an alternative might be questionable.
- The judgment does not take into consideration the vulnerability of a single woman in Africa unwilling to submit herself to tribal and social traditions such as FGM and forced marriage.
-The court failed to examine forced marriage as a Convention ground for persecution.
Relevant International and European Legislation:
Other sources:
Article 3, 38 of the Asylum Act (Act no. CXXXIX of 1997 in force until 1 January 2008 in procedures that were started previously).