Argus title : We should applaud this legal victory
The city of Brighton & Hove has many excellent charitable advice services, but none finer than Brighton Housing Trust’s Immigration Legal Service (ILS), which assists immigrants, asylum seekers and others escaping torture or struggling against deportation.
Refugees and immigrants to the UK all too often experience exhaustion, confusion and depression.
More than once I have asked people in this situation whether they have received help from BHT, only to see their anxious faces break into smiles “Yes BHT….. Jen” they say “Yes I know Jen”
The “Jen” to whom they refer is Jen Hen wood, Head Solicitor of the ILS. She is a modest, quiet woman who has worked unstintingly for years to ensure that the rights of asylum seekers are upheld. She’s worked at BHT since 1995 and now heads a team of five immigration caseworkers.
I know Jen and her team don’t like to be interviewed or praised. I’m prepared to respect the first constraint, but I won’t accept the second. This small team has won a famous legal victory and this deserves to be shouted from the rooftops.
The case concerned Zainab Fornah, who fled from Sierra Leone to avoid forcible female genital mutilation (FGM). The Home Office claimed she was not entitled to international protection under the Refugee Convention. Zainab and BHT claimed she was, and eventually won their case. This will have far-reaching implications for the safety of women and girls at both a national and an international level.
Zainab was 15 when she arrived at Gatwick Airport. She had experienced war, kidnap, rape and the loss of her family. She was taken into the care of West Sussex Social Services Child Asylum Team.
The Home Office accepted that Zainab was in need of protection because she was a child, but did not accept her application for asylum. It argued that that she did not belong to a “particular social group” and was therefore not entitled to Refugee Convention Protection.
The Refugee Convention provides protection for those at risk of persecution for reasons of race, religion, nationality, political opinion and membership of a particular social group (PSG). It does not mention gender and there has been considerable dispute about whether the ‘PSG ground’ could include gender persecution.
In October 2003, Zainab appealed successfully against the Home Office’s rejection of her claim. However, the Home Office itself appealed, and both the Immigration Appeal Tribunal and the Court of Appeal upheld the government’s view. Zainab and BHT fought on. Finally, the case went to the Law Lords who ruled unanimously that she is indeed a member of a “particular social group”.
The Home Office, to its shame, fought the case tooth and nail and to the bitter end. Baroness Hale of Richmond expressed amazement that the case had needed to come before the Lords, saying it was “blindingly obvious” that the Zainab is entitled to protection under the Convention. The other 4 Law Lords agreed.
The Home Office had argued that she did not belong to a particular social group for a number of spurious reasons:
• because, the actual mutilation is carried out by women
• because FGM is a “one-off persecution” (they argued incorrectly that once it has happened the woman in question is no longer at risk)
• because FGM is widely practised and accepted in Sierra Leone (some 80% are mutilated) and
• because FGM is part of an initiation ceremony which ensures a woman’s acceptance into society.
Female genital mutilation (FGM), also known as female circumcision or female genital cutting, is defined by the World Health Organisation (WHO) as ‘the partial or complete removal of the external female genitalia or other injury to the female genital organs whether for cultural or any other non-therapeutic reason’.
In some cultures the procedure may be a relatively minor one, not unlike male circumcision. However, in many countries the procedure involves major surgery, often carried out without anaesthetic or antiseptics, which results in the removal of major parts of the sex organs. The charity FORWARD, which campaigns to end FGM lists 4 different categories of mutilation. The details are too distressing to print in a family newspaper, but I would recommend adult readers concerned about this to contact the charity’s website on www.forwarduk.org.uk for further information.
According to FORWARD the age at which girls undergo FGM varies enormously. It can be any time from shortly after birth to marriage or during the first labour, depending on the community. The most common age is between four and ten.
In Esther’s culture, most girls have the operation in childhood, but she was fortunate in that her father, uniquely in their community, disapproved of the practice and while she was in his care protected her from it.
No one knows when or where the tradition of FGM originated. Those who argue for it give as reasons: custom and tradition, religious observance, preservation of female virginity and chastity, social acceptance in respect of marriage, hygiene and cleanliness, increased sexual pleasure for men, family honour and the need to avoid social exclusion.
Depending on the degree of mutilation, FGM can have a number of short-term health implications such as severe pain and shock, infection, urine retention, injury to adjacent tissues, and fatal blood loss. Long term health problems can include extensive damage to the reproductive system, uterine, vaginal and pelvic infections, cysts and neuromas, increased risk of fistula and attendant incontinence of urine and faeces, complications in pregnancy and child birth, psychological damage and chronic pain.
The WHO estimates that between 100 and 140 million girls and women have been subjected to FGM and that each year a further 2 million girls are at risk. Most of these women and girls live in 28 African countries, a few in the Middle East and Asia and among immigrant communities in Europe, Australia, New Zealand, the USA and Canada.
FORWARD reports that “In some countries, (e.g. Egypt, Ethiopia, Somalia and Sudan), prevalence rates can be as high as 98 per cent. In other countries, such as Nigeria, Kenya, Togo and Senegal, the prevalence rates vary between 20 and 50 per cent.” FORWARD estimates that as many as 6,500 girls are at risk of FGM within the UK every year, despite the fact that the practice is illegal.
FGM tends to take place in Islamic communities, but predates Islam. Certainly, there is nothing in the Koran to justify it. However, this has not prevented some Islamic leaders in Africa from vigorously defending the practice. The societies in which it is practiced are all highly patriarchal and institutionally sexist, confining women to a position of social inferiority and powerlessness.
This October the Law Lords recognized this and one by one demolished the Home Office’s arguments. They found that women in Sierra Leone have a position of social inferiority as compared to men and that mutilation is an extreme manifestation of the discrimination to which all women are subjected. They deemed irrelevant the Home Office’s argument that that FGM is carried out by women and is widely practised and accepted. They found that it ensures a young woman’s acceptance into Sierra Leonean society only on the basis of institutionalised inferiority.
Lord Bingham said “I think it clear that women in Sierra Leone are a group of persons sharing a common characteristic which, without fundamental change in social mores, is unchangeable; namely a position of social inferiority as compared with men. …. That is true of all women, those who accept or willingly embrace their inferior position and those who do not”. He went on to say that the authorities did little to curb or eliminate FGM which he said had been internationally condemned as cruel, discriminatory and degrading.
Jen Henwood said “ This judgment is a very clear and strong statement from the House of Lords that the Refugee Convention is to be interpreted and applied in accordance with the commitment to gender equality contained in the various international human rights instruments to which it is a signatory.”
“The judgement will be relevant to FGM cases relating to other countries, and to other forms of gender persecution which are part of “traditional culture”, are widely accepted and practiced and where women and girls have no effective protection. It will have an impact not only in the UK, but in many other countries which are signatories to the Refugee Convention.”
Rarely do local charities, often short staffed and starved of funds, achieve such profound change at a national or international level. BHT is entitled to be very proud of its legal team. We as a city should also applaud their achievements.