Sweden - Migration Court of Appeal, 12 October 2012, UM 1173-12, MIG 2012:12
Keywords:
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Country of origin information
Description
"Information used by the Member States authorities to analyse the socio-political situation in countries of origin of applicants for international protection (and, where necessary, in countries through which they have transited) in the assessment, carried out on an individual basis, of an application for international protection.” It includes all relevant facts as they relate to the country of origin at the time of taking a decision on the application, obtained from various sources, including the laws and regulations of the country of origin and the manner in which they are applied, regulations of the country of origin, plus general public sources, such as reports from (inter)national organisations, governmental and non-governmental organisations, media, bi-lateral contacts in countries of origin, embassy reports, etc. This information is also used inter alia for taking decisions on other migration issues, e.g. on return, as well as by researchers. One of the stated aims of the European Asylum Support Office (EASO) is to progressively bring all activities related to practical cooperation on asylum under its roof, to include the collection of Country of Origin Information and a common approach to its use. |
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Personal circumstances of applicant
Description
The range of factors such as background, gender, age, and individual position which must to be taken into account in the assessment of an application for international protection per Article 4(3)(c) of the Qualification Directive. |
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Well-founded fear
Description
One of the central elements of the refugee definition under Article 1A ofthe1951 Refugee Convention is a “well-founded fear of persecution”: "Since fear is subjective, the definition involves a subjective element in the person applying for recognition as a refugee. Determination of refugee status will therefore primarily require an evaluation of the applicant's statements rather than a judgement on the situation prevailing in his country of origin. To the element of fear--a state of mind and a subjective condition--is added the qualification ‘well-founded’. This implies that it is not only the frame of mind of the person concerned that determines his refugee status, but that this frame of mind must be supported by an objective situation. The term ‘well-founded fear’ therefore contains a subjective and an objective element, and in determining whether well-founded fear exists, both elements must be taken into consideration." |
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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:
Three Somali girls were considered to have a well-founded fear of being forced to undergo female genital mutilation and therefore gender-based persecution, which entitled them to be granted refugee status.
Facts:
A, B, and C, aged 3,10 and 11, sought asylum in Sweden and claimed that they risked female genital mutation if they returned to their home country, Somalia. The Swedish Migration Board did not, however, believe that A, B, or C had demonstrated sufficiently that they risked female genital mutilation, amongst other reasons because their mother had managed for such a long time to protect them from female genital mutation in their home country. A, B, and C were not found to be refugees. The Swedish Migration Board did, however, find that at the time of its decision there was an internal armed conflict in Mogadishu, which is where A, B, and C came from, and that they lacked an internal flight alternative. They were granted subsidiary protection.
A, B, and C appealed to the Migration Court (Migrationsdomstolen) and claimed that they should be granted refugee status, as they are refugees due to gender-based persecution. Their mother have undergone female genital mutilation, which means that female circumcision is practised in their family. It must furthermore be taken into consideration that, amongst other things, al-Shabaab has noticed that they are not circumcised. (In this case, there were medical certificates that confirmed that A, B, and C had not undergone female genital mutilation). The requirement for them to be circumcised grows the older they become, and due to the situation in Somalia, there is no effective protection for them there. The Migration Court allowed the appeal and granted A, B, and C refugee status. The Court took the view that the country of origin information in the case (which made clear, amongst other things, that female genital mutilation is widespread in Somalia, that the procedure is generally carried out at the ages that A, B, and C have attained, and that the parents have a limited ability to protect their daughters) supported A, B, and C's testimony and that they had therefore demonstrated sufficiently that, if they returned to Somalia, they risked gender-based persecution. The fact that their mother had managed for a long time to protect them from female genital mutilation did not mean that A, B, and C were not at risk of being exposed to female genital mutilation on their return. The Migration Court found that A, B, and C had demonstrated sufficiently that, if they returned to Somalia, they risked gender-based persecution through mutilation, which is why they should be considered refugees and granted refugee status.
The Migration Board appealed, and the Migration Court of Appeal granted leave to appeal in the case.
Decision & reasoning:
The Migration Court of Appeal initially found that it had been settled in the case that A, B, and C had not undergone female genital mutilation and that the current country of origin information was not in question. The Migration Court of Appeal furthermore found that A, B, and C's parents had provided coherent and consistent testimony. It was likely that there was significant pressure not only from al-Shabaab, but also from relatives and other elements in the environment in their home country for A, B, and C's parents to have their children circumcised. The Migration Court of Appeal found it likely that the parents could not protect A, B, and C against female genital mutilation on a return to Somalia, so the Court found A, B, and C's fear of being exposed to gender-based persecution to be well-founded. A, B, and C were thus to be viewed as refugees and granted refugee status.
Outcome:
The appeal was dismissed, and refugee status was granted.
Observations/comments:
This case also concerned national provisions concerning whether a migration court can check and grant travel documents when the Swedish Migration Board has not examined this question in the decision appealed against. This element, however, has been omitted from the above summary, as the question is assessed to be of Swedish national interest only.
Relevant International and European Legislation:
Cited National Legislation:
Other sources:
The government's bill 2005/06:6— Refugees and Persecution on the Ground of Gender or Sexual Orientation, pp. 22 and 27