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You are here: BAILII >> Databases >> United Kingdom Asylum and Immigration Tribunal >> FB (Lone women, PSG, internal relocation, AA (Uganda) considered) Sierra Leone [2008] UKAIT 00090 (27 November 2008) URL: https://www.bailii.org/uk/cases/UKIAT/2008/00090.html Cite as: [2008] UKAIT 90, [2008] UKAIT 00090 |
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FB (Lone women - PSG – internal relocation – AA (Uganda) considered) Sierra Leone [2008] UKAIT 00090
ASYLUM AND IMMIGRATION TRIBUNAL
Date of hearing: 19 June and 23 July 2008
Date Determination notified: 27 November 2008
Before
Senior Immigration Judge Jordan
Senior Immigration Judge Jarvis
Mr F. T. Jamieson
Between
FB |
APPELLANT |
and |
|
Secretary of State for the Home Department | RESPONDENT |
For the Appellant: Ms K. Cronin, counsel, instructed by Brighton Housing Trust Immigration Legal Service
For the Respondent: Mr P. Deller, Home Office Presenting Officer
DETERMINATION AND REASONS
1. Given the pervasive influence of the Bondo societies in Sierra Leone, the inferior position of most women in that country and the relative lack of support provided by the community, a woman who has undergone FGM but who has opposed traditional practices is capable of being a member of a particular social group for the purposes of the Refugee Convention.
2. Although the appellant faces a specific risk in her home area of being forced to be a sowei and of being forced into marriage, in general members of the Bondo societies fall short of adopting a positively hostile or combatant attitude to non-adherents of Bondo principles and avoid targeting them. The treatment faced by the minority is not persecutory.
3. The Court of Appeal's decision in AA (Uganda) v SSHD [2008] EWCA Civ 579 is not authority for a wider proposition that lone women cannot be returned to Uganda or, indeed, any other specific country. Nor is it support for the proposition that it is unduly harsh to expect lone women to relocate to the capital city of their country of origin or any other large urban centre. Rather, it is a re-affirmation, in line with AH (Sudan
) that such relocation must be reasonable, in other words, that it must not have such consequences upon the individual as to be unduly harsh for her. If survival comes at a cost of destitution, beggary, crime or prostitution, then that is a price too high.
4. There is a significant migration to Freetown from rural areas. For migrants to Freetown, those with the ability to access support would face no risk. Such support mechanisms might include family or other connections, support mechanisms from other groups, such as the Bondo societies and support from a local mosque or church. There is however no compelling evidence that these support mechanisms are the sole means of eliminating the risk of destitution and its corollary of the risk of beggary, recourse to crime or prostitution.
Introduction and immigration history
The claim
The old-style appeal and the order for reconsideration
1. This is a reconsideration pursuant to s.103A of the Nationality, Immigration and Asylum Act 2002. It has been remitted to the Tribunal following an order made by Mr Justice Bean in the High Court on 21 July 2005. He considered that the grounds for reconsideration were arguable.
2. This is case where the Adjudicator as he was found the appellant to be entirely credible. Her mother had been a Sowei in Sierra Leone. After she died, when the appellant was aged sixteen, the appellant had been expected to take over her mother's duties which involved performing FGM on uninitiated girls in her tribe. FGM had already been performed on the appellant as a result of which she had suffered shock and fear. Before she fled from her village she was also told that she would be forced to marry the village chief.
3. The appellant feared persecution if returned to Sierra Leone because she claimed that she was a member of a particular social group, namely a young woman from Sierra Leone who faced a real risk of persecution for that reason. The Adjudicator had been wrong to rely on RM (Sierra Leone) [2004] UKIAT 00108 which was a case that dealt with women who were expected to undergo FGM. The Adjudicator failed to have proper regard to what the House of Lords said in Shah and Islam as to the determination of a particular social group. It was submitted that in this case the group i.e. young women in Sierra Leone, has been socially constructed by the country's laws and social mores (there was expert evidence about this issue from Dr Fanthorpe). The Immigration Judge had failed to consider that evidence in any detail (paragraph 13 of the grounds).
4. The appellant feared persecution for this reason and argued that this would arise if there was a real risk that on return she would be forced against her will to carry out FGM on other young women and secondly, that she would be forced into a marriage that she did not want. These risks stem from her membership of a social group, namely as a young woman in Sierra Leone. It was further argued that the Immigration Judge had not given proper consideration to the issue of internal flight before him. He had failed to take proper and full account of the expert evidence in this regard.
5. Both parties agreed with the Tribunal that the grounds of the application are made out. In the light of the issues raised by this case, and having regard to the recent decision of the House of Lords in K and Fornah [2006] UKHL 46 , the Tribunal is of the view that this case may be an appropriate one on which to give Country Guidance as to whether the objective evidence does establish that young women in Sierra Leone are a particular social group for the purposes of the Refugee Convention and are at real risk of harm for that reason. Further, the particular issues in this case are whether this appellant, on account of her membership of that social group is at real risk from members of the Bondo society if she returns to Sierra Leone because she will be forced to carry out initiation ceremonies on other women; forced into marriage; and faces general discrimination on account of her gender. Further, whether any internal flight option is available to the appellant and whether there is a sufficiency of protection against the ill treatment she fears on these grounds. Counsel's (Miss Naik) skeleton argument of 27 March 2007 clearly sets out the issues.
6. This case is therefore adjourned initially for the Tribunal to determine whether this is a suitable case for country guidance. The findings of Immigration Judge Boyd in relation to the appellant's account will stand and the only issues in the case are those set out above. The hearing date will be notified in due course.
The material before us
The expert's report
"The fortunate among this group find a householder, shopkeeper, lorry driver or suchlike willing to offer them food and shelter in return for menial work. The unfortunate descend into begging, theft and prostitution. A girl of [the appellant's] age does not survive long in this environment, without a male 'protector', and even then, her vulnerability to physical and sexual abuse would be very high."
" …while she might be at risk if she returned to her home village, it is very unlikely that there would be a coordinated effort, further afield, to target her for refusing to serve as a sowei. However, the Bondo Society is present in every neighbourhood in Sierra Leone, and in the current political climate she would be at risk of taunting and harassment from any Bondo Society members who learned of her history. Unlike experienced anti-FGM campaigners, who enjoy a national profile and international support, a young woman [like the appellant] would be ill-equipped to deal with such hostility."
The expert's evidence at the hearing
"It is a matter of emphasis. The cassette-sellers vendors and the newspaper organisers are springing up and migrants are finding ways to survive… It is not a question of leaving the rural areas behind and going into a city. The pressure to conform is not there the less. It remains a question of conforming or starving. This is the cutting-edge of research at this time in Sierra Leone. What is the effect of migration post-war? I cannot give a more definite answer."
Case law
"The decision maker taking account of all relevant circumstances pertaining to the claimant and his country of origin must decide whether it is reasonable to expect the claimant to relocate or whether it will be unduly harsh to expect him to do so."
"[AA] has almost no chance of getting a formal sector job. First, she has no qualifications or formal training and her chances of improving her educational status in Kampala are nil….Secondly, in East Africa contacts and information are critical in finding jobs….contacts and assistance from relatives and friends can be critical in even getting to the interview stage of a job application. Her only hope will be some sort of self employment in the informal economy. Here she will also be at a disadvantage because she has no informal home training in any sort of activity which might generate an income in the informal sector (trading, cooking food, sewing, embroidery). The only jobs she could hope to obtain would be that of house servant or bargirl or sex worker (and bargirls are just sex workers by another name). Her chances of finding a job as a house servant will be limited. Almost inevitably these are found through contacts via friends and relatives since people are reluctant to bring a total stranger into their domestic circumstances…Sadly there is an unending demand for bar girls/sex workers (the two occupations are usually linked). That would be her best, perhaps her only chance of employment….In this context of high HIV/AIDS infection rates, [AA] will be condemned to dangerous jobs which will put her at risk of abuse, injury and most significantly of all in danger of contracting HIV/AIDS….Suffering from anxiety and depression, [AA] will be plunged into a very difficult, dangerous and unknown environment. In such an African slum many young people who have grown up there are vulnerable to unwanted pregnancies, early marriages, prostitution, drug abuse, crime, and AIDS….How much more daunting and difficult will it prove to this traumatised young woman?"
Dr Nelson said by way of a conclusion:
"As a young woman with no family or husband to call back on [AA] will be especially vulnerable, a fact confirmed time and again by anthropologists and sociologists working in African cities. With little education, no training and no job experience she will be reduced to working in the informal sector in the slums. The most likely employment option she will be reduced to will be that of sex worker. This will put her at great health risk of contracting HIV/AIDs. She will be unable to find secure and decent housing. She will find it difficult to obtain counselling or medication for her psychological conditions."
"I cannot agree. If the judge wished to insert that qualification into her general acceptance of Dr Nelson's evidence she undoubtedly would have said so."
Accordingly, there was a finding that the appellant would return to Uganda and there find a life of prostitution. The point is re-made in paragraph 17 of Buxton LJ's judgment: the appellant would be driven into prostitution. Lloyd LJ in paragraph 55 of his judgment construed the Immigration Judge's determination in exactly the same way:
"The evidence before the Immigration Judge included that of Dr Nelson, set out in part at paragraph 9 above, and which the Immigration Judge accepted. That evidence included the statement that the life awaiting AA in Kampala would most likely be one of prostitution. I agree with Lord Justice Buxton, despite the different view expressed by Lord Justice Carnwath, that the Immigration Judge's acceptance of Dr Nelson's evidence must be taken to include acceptance of that proposition as an integral part of the evidence. If the Immigration Judge had intended to accept some of the evidence but not that proposition, she must have said so in terms. If that proposition is accepted, it has a most significant effect on the assessment of whether conditions in Kampala are such that it would be unduly harsh to require a young woman in AA's position to go to live there."
The background material
Women
Constitutional Rights Of Women
6.22 "The Constitution provides for equal rights for women; however, in practice, women faced both legal and societal discrimination. In particular, their rights and status under traditional law varied significantly depending upon the ethnic group to which they belonged. All women born in the Western Area, which is governed by General Law, had a statutory right to own property in their name. Some women born in the provinces, which are governed by customary laws that vary from chiefdom to chiefdom, did not. In the Temne tribe, women could not become paramount chiefs; however, in the Mende tribe, there were several female paramount chiefs. Women did not have equal access to education, economic opportunities, health facilities, or social freedoms. In rural areas, women performed much of the subsistence farming and had little opportunity for formal education."
6.23 The HRW report on sexual violence in the Sierra Leone civil war states:
"In theory, Sierra Leonean women are granted equal rights to men under the 1991 constitution, which provides as one of the 'fundamental principles of state policy' that the state '…[s]hall discourage discrimination on the grounds of place of origin, circumstances of birth, sex, religion,.…' [.] The equal rights of women are again underscored in the human rights chapter of the constitution. Under Section 27 of the constitution, however, discrimination is permitted, inter alia, under laws dealing with 'adoption, marriage, divorce, burial, devolution of property on death or other interests of personal law,' which have direct bearing on the rights of women, as well as under customary law. This important contradiction in the constitution – similar to that in many African constitutions – has contributed to the low status of women in Sierra Leone, as it legitimizes the application of discriminatory customary law. No protection from discriminatory customary law can be sought under the constitution on the basis of sex. Customary and Islamic laws also continue to be widely applied, notwithstanding the fact that legislation provides that general law should prevail over customary law when customary law is 'repugnant to statute or natural justice, equity, and good conscience.' "
6.26 As employment opportunities are limited for women, some women have become prostitutes as a means to support themselves, as noted by the USSD 2004 Report:
"Prostitution was widespread and not prohibited by law; however, prostitutes sometimes were arrested and charged with loitering or vagrancy. Many women and girls, particularly those displaced from their homes and with few resources, resorted to prostitution as a means to support themselves and their children."
Societal attitudes to domestic violence
6.27 The USSD 2004 Report states that:
"Domestic violence against women, especially wife beating, was common. The police were unlikely to intervene in domestic disputes except in cases involving severe injury or death. In rural areas, polygyny [otherwise, polygamy] was common. Women suspected of marital infidelity often were subjected to physical abuse; frequently, women were beaten until they divulged the names of their partners. Because husbands could claim monetary indemnities from their wives' partners, beatings often continued until the woman named several men even if there were no such relationships. There also were reports that women suspected of infidelity were required to undergo animalistic rituals to prove their innocence."
6.28 The HRW report on sexual violence in the Sierra Leone civil war states:
"Societal attitudes to domestic violence are another indicator of the status of women and girls in society; physical violence against women and children is common in Sierra Leone. Indeed, under customary law, a husband has the right to 'reasonably chastise his wife by physical force.' If the husband is persistently cruel and frequently beats his wife to the point of wounding her or causing her great pain, the wife can divorce her husband, but under customary law a single act of physical and brutal force is permitted. A population-based assessment of war-related sexual violence in Sierra Leone carried out by Physicians for Human Rights among 991 female-headed households in camps for displaced people found that, although 80 percent of women surveyed expressed that there should be legal protections for the rights of women, more than 60 percent of the women believed that a husband has the right to beat his wife."
6.32 The HRW report on sexual violence in the Sierra Leone civil war states:
"…In addition to the legal confusion that exists in general law concerning rape, attempts by women to obtain the prosecution of rapists are frustrated by the collapsed state of the judiciary and the lack of effective law enforcement, which has contributed to the ongoing climate of impunity for offenders."
"The manner in which rape is dealt with under customary law is indicative of the societal values towards sexual violence and the low status of women and girls in Sierra Leone. Although all serious criminal cases should automatically be tried under general law, rape cases continue to be prosecuted under customary law in the local courts."
The practice of female genital mutilation (FGM)
6.40 A USSD 2001 Report on FGM in Sierra Leone states:
"Type II (commonly referred to as excision) is the form of female genital mutilation (FGM) or female genital cutting (FGC) widely practiced on women and girls in Sierra Leone. It is generally practiced by all classes, including the educated elite. Sierra Leoneans who live abroad sometimes bring their daughters back to Sierra Leone to participate in initiation rites that include this procedure. Type II is usually carried out within a ritual context. It is part of the passage from childhood to womanhood."
"Some estimates place the percentage of women and girls in Sierra Leone who undergo this procedure at 80 percent. Others put the percentage higher at 90 percent. All ethnic groups practice it except Krios who are located primarily in the western region and in the capital, Freetown."
"The customary power bases of women in Sierra Leone lie in the secret societies. Women who administer puberty rites are revered, feared and believed to hold supernatural powers. Membership in these secret societies, including Sande and Bundo, lasts a lifetime."
"Groups of girls of approximately the same age are initiated into these societies. Part of the ritual is the cutting. Girls initiated together form a bond and this sisterhood lasts throughout their lives. The girls take an oath that they will not reveal anything that happened during the puberty rite."
"It is believed that once initiated into the society, the girl has passed into womanhood. She now has adult status and can participate in society as a woman. The secret societies are supported by some members of the influential elite who are also members of the societies or who have relatives who are."
"Non-members of the secret societies are considered to be children, and not accepted as adults by society. They are generally barred from taking up leadership positions in Sierra Leone society. Children who come of age and have not gone through the puberty rite are liable to be forcibly seized to undergo the procedure."
6.41 The USSD 2004 Report states that:
"FGM was practiced widely at all levels of society, although with varying frequency. The less severe form of excision was practiced. UNICEF and other groups estimated that 80 to 90 percent of women and girls had undergone the practice; however, some local groups believed that this figure was overstated. FGM was practiced on girls as young as 5 years old. No law prohibits FGM. Although a number of NGOs worked to eradicate FGM and to inform the public about its harmful health effects, active resistance by women's secret societies, in which FGM commonly occurred as part of initiation rites, countered efforts to stop the practice."
6.42 A United Nations IRIN report, dated 23 March 2005, about the practice of FGM in Sierra Leone, states:
"Young girls in Sierra Leone, who were traditionally circumcised at puberty, are having their clitoris cut out by secret societies at a younger and younger age, especially in the remote north of the country."
"The women who perform the crude operation with a long-bladed knife are also getting younger."
"...In many African societies, the circumciser is an older woman who has passed childbearing age – but not in Sierra Leone."
"…Young girls in Sierra Leone were traditionally circumcised at puberty, as part of the rites of passage to adulthood. The ceremony was usually performed after they had undergone training for up to two years in household skills, such as cooking, sewing and curing illnesses with local herbs."
"But today, in most cases, this period of apprenticeship has been pared down to just one or two weeks of preparation for the ritual of circumcision itself."
"Age offers no protection from being circumcised. Olayinka Koso-Thomas, a gynaecologist who has been fighting against female circumcision for 30 years in Sierra Leone, said, 'They even initiate babies and small children. Depending on the ethnic group, people do it at different ages: three, five, after secondary school, etc. The Sousous do it when the girls are 40 days old. The practice is more widespread in the north, where there are also more Muslims, who are more intransigent in sticking to the practice,' she told IRIN."
"In the face of widespread support for the practice among the country's five million people, and government indifference to international pressure to ban genital cutting, AIM [Amazonian Initiative Movement], is one of a handful organisations actively fighting FGM."
"...The organisation [AIM] has been talking to people in villages throughout the West African country, and claims to have persuaded about 400 women, many of whom double as midwives, to give up inflicting FGM on others by offering them alternative ways of earning money."
"...Female circumcision is lucrative business for the women who perform the operation."
"...It also brings cash into the hands of village chiefs, who charge a fee for every circumcision ceremony that takes place within their jurisdiction."
6.43 NGO workers who have campaigned against the practice of FGM have encountered opposition to their work from people who are strong advocates of the practice. An Inter Press Service News Agency report about FGM, dated 19 April 2005, states:
"'It is not an easy job. Sometimes I get booed and taunted. At crucial moments I get chased out of places where the practice is much more prevalent,' complains 34-year-old Ann Marie Caulker, who is championing the campaign to end the age-old tradition of Female Genital Mutilation (FGM)."
"'Here in the capital (Freetown), the practice is not widespread because of the cosmopolitan nature of the city. But in the predominantly conservative countryside, it is more or less a taboo to venture discussing FGM in public; a real tough challenge,' she says."
"Caulker's strategy is simple. Through her Katanya Women's Development Association (KADWA), she has recruited hundreds of young girls, aged between 12 and 18, the prime target for FGM, and placed them in skills training centres. The girls learn tailoring, dyeing, weaving, soap making and embroidery."
"This is a cover to promote her cause, because of the hostility faced by anyone who dares speak out openly against FGM. In between training sessions, she organises lectures and discussions about the harmful effects of FGM and admonishes youngsters to resist attempts at getting them initiated into the 'Bondo Society', the local name for FGM."
"There is as yet no law on FGM in Sierra Leone. In fact, there is no statute on children's rights. However, the fact that children played a major role in the decade-long civil war that ended three years ago, mainly as conscripted combatants, has jolted the authorities into action."
"The children are traumatised, many forced into marriages by rebel fighters or gang-raped and enslaved. The Ministry of Gender, Social Welfare and Children's Affairs has drafted a Bill aimed at protecting children's welfare."
"Francis Murray Lahai, a child protection officer at the ministry, says the bill was drafted with the help of experts hired by the UN Children's Fund (UNICEF) and has much to offer children in post-conflict Sierra Leone."
"'In the bill there is an aspect dealing with harmful traditional practices like FGM, tattoos and any bodily inscription not in the interest of the child,' Lahai says. 'These will be proscribed and measures [will be] taken against people who may want to break the law.'"
"…But there is fierce opposition to the bill. 'Female Genital Mutilation is an integral part of our culture. It shouldn't be banned because it helps prepare our young girls for marriage and it curbs promiscuity,' rants 24-year-old Marie Bangura who had gone through the initiation ceremony."
"...One major problem facing anti-FGM campaigners is the massive illiteracy standing at about 75 percent especially in the interior of the country where UNICEF estimates 90 percent of the women have been circumcised. There, it is a display of affluence and power. Family heads save for a whole year proceeds from the farming activities to spend lavishly on 'Bondo' ceremonies."
"'Bondo Society is what holds us together as a community and keeps our traditional heritage. We cannot sit idly by and allow outsiders to destroy it. We will fight it out,' 56-year-old Ya Ndigba Thulla, an initiator in Makeni, the northern regional capital, told IPS in an interview."
"…The 'Bondo Society' and its practice of FGM is often used as a weapon of political campaign. Politicians from all sides win votes from women by extolling the virtues of the 'Bondo Society'."
6.38 "…In terms of customary law, girls as young as ten are permitted to marry and are capable of consenting to marriage, given their levels of maturity. Families usually coerce them into these marriages. There is often a significant difference in age between these young girls and the spouses chosen for them."
"The Commission has found that the practice of early marriage has contributed to the high levels of sexual abuse of girls and has led to society's condoning of a practice that is detrimental to the development of young girls. It is also in clear contravention of international law to which the government of Sierra Leone is [a] signatory to [sic]."
"The discriminatory dimensions of Sierra Leonean political and social life have always been there, but they have been exacerbated by the impact and aftermath of the war. The destruction of social networks and structures, the breaking up of families and communities, and the mass displacement of half of the population all resulted in a rootlessness that destabilised traditional value and cultural systems. Whilst this offers the opportunity to renegotiate traditionally held beliefs, it also potentially facilitates a culture of violence where there is little accountability and few inbuilt structures to regulate behaviour, since ties to family and community were so often broken." [C135]
"Women are forced by a lack of formal protection from the Sierra Leonean Government into situations where their rights---civil, political, social and economic---are violated on a daily basis. Treated as minors under the guardianship of a male family member, women lack formal equality in marriage and the ownership or administration of common property, either during the marriage or when it has ended. Inequality and discrimination affect their right to an adequate standard of living and their right to housing for themselves and their children. Women's access to justice and redress is severely impeded." [C173]
"40. Considerable progress has been made in promoting respect for human rights, particularly in building the capacity of the national Human Rights Commission to monitor, protect and promote human rights and to review the status of implementation of the recommendations of the Truth and Reconciliation Commission. With support from UNIOSIL and UNDP, the Human Rights Commission has established fully functioning offices, recruited some core staff, completed a brainstorming retreat for the development of a five-year strategic plan, developed rules of procedure for the handling of complaints and created a framework for the production of its first human rights report. It is also in the process of finalizing its administrative and human resource manual, as well as its financial policies. During the reporting period, the Commission received and investigated 70 complaints with the support of the United Nations.
41. Some progress was also made in building the capacity of State institutions to address the root causes of the conflict. Several training programmes on human rights, the rule of law, women and children, and the findings of the Truth and Reconciliation Commission were conducted by UNIOSIL for representatives of civil society and officials of key Government ministries, including local government.
42. Notwithstanding these positive developments, a number of challenges remain to the full realization of human rights. The justice system and the response of the Government to sexual and gender-based violence, including domestic violence, rape, and female genital mutilation, are still weak. The impunity with which these abuses are committed continues to pose a threat to the basic human security of women…Many courts continue to be understaffed and under-equipped. There are now 19 magistrates and 13 State counsels."
"24. While welcoming the domestic violence bill of 2006, the Committee is deeply concerned about the high levels of violence against women, including rape and sexual assault. The Committee is particularly concerned about the persistence of customary law and cultural practices that consider the physical chastisement of family members, in particular women, acceptable."
"16. Through consistent advocacy, technical support and intervention by the United Nations, international partners and civil society organizations, in 2007, Parliament passed the Domestic Violence Act, the Devolution of Estates Act and the Registration of Customary Marriages and Divorce Act, (referred to as the "gender bills") in furtherance of the implementation of the Convention on the Elimination of all Forms of Discrimination against Women. The enactment of the gender bills will hopefully lay a firm foundation to address discriminatory practices and violence against women, enabling them to play a meaningful role in the process of democratization and economic development. However, for the gender bills to have any meaningful impact, there is need for Parliament to enact the Sexual Offences Act and the Matrimonial Act, and to make adequate budgetary allocations to the Ministry of Social Welfare for their effective implementation.
17. Despite the progress on the legislative front, challenges to the full realization of women's rights still abound. Gender equity and women's empowerment remain a challenge to the full realization of women's rights in Sierra Leone. UNIOSIL collaborated with the 50/50 Group Sierra Leone and a number of other women's organizations to carry out sensitization activities for aspirant women candidates at the 2007 general elections as well as on women's rights to participate in the political process. However, women's representation in Parliament has dropped from 18 to 16 and only 2 women have been appointed as Ministers to the new Government, thus indicating the deeply entrenched discriminatory attitude towards women as political leaders.
18. The increasing incidence of sexual and domestic violence also remains a barrier to the realization of women's rights in the country. Up to 67 per cent of women regularly suffer from domestic violence, including beatings, assault, destruction of properties and deprivation. Although the rate of reporting has increased because of the greater awareness among women of their rights, prosecution of cases is continuously hampered by the inadequate capacity of the family support units of the Sierra Leone Police, pressure by family members of the victims to drop charges, obstruction of justice by people in high places, including traditional leaders [and] politicians, and by the unusually long delays in court trials. The Ministry of Social Welfare, Gender and Children's Affairs, the national entity responsible for taking the lead on such matters, lacks capacity and is hamstrung by the Government's inadequate budgetary allocation for women's empowerment programmes. The Peace Building Fund is providing support for capacity-building of family support units and the Ministry."
The assessment of risk - the subjective and objective fear
An opponent of traditional practices
The risk of a forced marriage
Particular social group
members of that group 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;
This definition is accurately reproduced in the Qualification Regulations (SI 2006 No 2525), Reg 6 (d).
"FGM is an extreme expression of the discrimination to which all women in Sierra Leone are subject, as much those who have already undergone the process as those who have not."
Disagreeing with the position adopted by Auld LJ in the Court of Appeal, both Lord Bingham and Lord Hope took the view that because those who have undergone the process were no longer at risk did not prevent the identification of women as members of a particular social group. The identification of a section of the group not at risk was not inimical to the existence of the particular social group. See, for example, Lord Hope at paragraph 55.
Imputed Political opinion
Internal relocation: Reasonableness-unduly harsh
(i) Freetown is the principal destination for those leaving rural areas.
(ii) As a young woman, who has eschewed traditional values, she is one of many young Sierra Leoneans who have decided that the old social system has little to offer and, in particular, that FGM is an anachronism. This group is indeed placed in a difficult position as a minority group, perhaps, representing as little as 10% of the population. Nevertheless, members of the Bondo societies fall short of adopting a positively hostile or combatant attitude to non-adherents of Bondo principles and avoid targeting them. The treatment faced by the minority amounts to taunting and harassment but is not persecutory.
(iii) The migration to Freetown is both of males and females; the females are in the minority but are catching up in numerical terms.
(iv) Freetown is a cosmopolitan society, where work is available to both men and women.
(v) For migrants to Freetown, those with the ability to access support would face no risk. Such support mechanisms might include:
a. family connections;
b. support mechanisms from other groups, such as the Bondo societies;
c. support from a local mosque or church.
(vi) There is however no compelling evidence that these support mechanisms are the sole means of eliminating the risk of destitution and its corollary of the risk of beggary, recourse to crime or prostitution. This is a crucial finding in relation to this present appeal.
"It is a matter of emphasis. The cassette-sellers vendors and the newspaper organisers are springing up and migrants are finding ways to survive… It is not a question of leaving the rural areas behind and going into a city. The pressure to conform is not there the less. It remains a question of conforming or starving. This is the cutting-edge of research at this time in Sierra Leone. What is the effect of migration post-war? I cannot give a more definite answer."
Conclusion
DECISION
(1) The original Tribunal made a material error of law.
(i) Having found that the Immigration Judge made a material error of law, we substitute a determination dismissing the appeal on asylum grounds;
(ii) This being an upgrade appeal, no claim for humanitarian protection or under the ECHR calls for decision.
ANDREW JORDAN
SENIOR IMMIGRATION JUDGE
17 November 2008
LIST OF SOURCES
1. The Country of Origin Information Service report, 2006.
2. Human Rights Watch report on sexual violence in the Sierra Leone civil war.
3. US State Department Report 2004
4. US State Department Report on FGM in Sierra Leone, 2001
5. United Nations IRIN report, about the practice of FGM in Sierra, 23 March 2005.
6. Inter Press Service News Agency report about FGM, dated 19 April 2005.
7. International Alert - Addressing Gender-Based Violence in Sierra Leone: Mapping Challenges, Responses and Future Entry Points.
8. Amnesty International Sierra Leone report: Women face human rights abuses in the informal legal sector, May 2006
9. Sixth report of the Secretary-General on the United Nations Integrated Office in Sierra Leone.
10. United Nations Committee on the Elimination of Discrimination against Women (CEDAW) in relation to Sierra Leone, June 2007.
11. United Nations High Commissioner for Human Rights and reports of the Office of the High Commissioner and the Secretary-General: Assistance to Sierra Leone in the field of Human Rights, 2008