Female Genital Mutilation as Grounds for International Protection in the European Union

Abstract

Women and girls arriving from FGM-practicing countries seek asylum in the EU each year. In many of their countries of origin, female genital mutilation (FGM) is a commonly accepted and deeply rooted tradition from which women and girls simply could not escape and thus, they have no choice but to flee. FGM is a harmful and discriminatory tradition which furthers the inequality between men and women. Both international law and EU law recognize FGM as a severe form of ill-treatment and as a human rights violation, which has also argued to amount to torture and can, in certain circumstances, be contrary to the right to life – when the procedure leads to death. FGM is a form of gender-based persecution and often also a child-specific form of persecution. Victims and possible victims of FGM can be considered to fall, inter alia, under the criteria of the “membership in a particular social group”, as defined by the United Nations Refugee Convention from 1951, which is the cornerstone in defining refugee status in EU Member States even today. However, gender is not recognized as a ground for persecution in the Refugee Convention, and therefore States Parties to the Convention should apply gender-sensitive interpretation to the Convention. Nevertheless, women and girls seeking international protection from the Member States of the EU on the grounds of FGM face great difficulties in accessing international protection in every part of the EU. Both victims of past persecution and those in a risk of future persecution face difficulties in accessing international protection.

The method of this thesis is dogmatic, as it will be concluded primarily by studying normative legal material, such as international human rights law and refugee law. The research problem of this thesis is to examine and analyse, what are the legal grounds for obtaining international protection on the grounds of FGM and what are the most evident legal challenges and faced by asylum seekers, who are seeking international protection on the grounds of FGM in the Member States of the European Union. In addition, this thesis also aims to answer, what kind of legal challenges can arise from the use of internal relocation alternative in FGM-related claims and whether the Member States of the European Union have a commonly accepted, Union-wide legal approach on how to address FGM-related claims for international protection. This thesis concludes inter alia, that internal relocation or flight alternative is often disproportionately used in FGM-related claims. Furthermore, both victims of FGM and women and girls in a risk of being subjected to FGM should be granted international protection. More importantly, FGM should be recognized as a procedure, which has long-term consequences and is often carried out more than once. Thus, claims of women and girls who have already been subjected to FGM must also be held admissible. The fact, that FGM-related asylum claims are not addressed in a coherent manner throughout the Union, different kinds of procedures and lack of training of asylum authorities, combined with the lack of common EU-wide guidelines on how to address FGM-related claims puts asylum seekers and refugees into an unequal position depending on where in the EU they seek asylum.