Esther Fornah was confirmed as a refugee by the unanimous decision of the House of Lords judicial committee on 18 October. Reversing the Court of Appeal, the Lords held that women in societies which practised female genital mutilation were ‘members of a particular social group’ for the purposes of the Refugee Convention.
The Court of Appeal had held that female genital mutilation constituted torture or inhuman or degrading treatment, so that a risk of it at home meant that removal from the UK would violate Article 3 of the European Convention on Human Rights. But the majority in the Court of Appeal held that although female genital mutilation constituted ‘persecution’, the young women facing it could not bring themselves within the definition of refugee, since the only relevant group was ‘young women at risk of female genital mutilation’, and the rule could not be defined by the persecution its members feared.
The House of Lords dismissed this convoluted reasoning. The committee accepted that in a society which discriminates against them, women can constitute a particular social group, although the majority preferred to define the group in this case more narrowly, as ‘uninitiated, intact women’.
In a companion case, the House of Lords upheld the appeal of K, an Iranian woman who claimed to fear persecution as a member of her husband’s family. Nobody knew why her husband was out of favour with the Iranian regime, who had persecuted him and then had turned on her. The committee, reversing the Court of Appeal, held that persecution because of family membership was within the Refugee Convention definition of a refugee.
On 17 and 18 July the House of Lords heard an important refugee appeal in which two members of chambers appeared. Fran Webber and Kathryn Cronin appeared, instructed by Brighton Housing Trust, for Zainab Fornah, a young Sierra Leonean woman who will be subjected to female genital mutilation (fgm) if she returns home.
The Home Office agreed that Britain's human rights obligations meant that she could not be forced to return, but maintained that she was not a refugee because the harm she feared was not for reasons of a Convention ground - her membership of the 'particular social group' of women and girls in Sierra Leone. The UN High Commissioner for Refugees intervened in the case to support the argument that what Ms Fornah faces is clearly gender-related persecution which makes her a refugee.
The case was heard together with the appeal of K, who argued that her persecution by the Iranian state, motivated by her husband's activities, was persecution for reasons of her membership of the 'particular social group' of her husband's family. The cases were heard by a committee comprising Lords Bingham, Hope, Rodger and Brown and Baroness Hale