Legislation and guiding policies on immigration and asylum on the basis of FGM should be developed within the framework of international human rights law. The United Nations High Commissioner for Refugees (UNHCR), recognizes “that a girl or woman seeking asylum because she has been compelled to undergo, or is likely to be subjected to FGM, can qualify for refugee status under the 1951 Convention relating to the Status of Refugees.” Furthermore, given “certain circumstances, a parent could also establish a well-founded fear of persecution, within the scope of the 1951 refugee definition, in connection with the exposure of his or her child to the risk of FGM.” (See: UNHCR, Guidance Note on Refugee Claims Relating to Female Genital Mutilation, May 2009)
The UNHCR officially considers “FGM to be a form of gender-based violence that inflicts severe harm, both mental and physical, and amounts to persecution.” It also recognizes fear of undergoing FGM is a well-founded fear of persecution that can be related to membership of a particular social group, as well as political opinion or religion. “FGM is inflicted on girls and women because they are female, to assert power over them and to control their sexuality. The practice often forms part of a wider pattern of discrimination against girls and women in a given society.” In addition, the UNHCR recommends that FGM be recognized as a “continuing form of harm” such that a woman or girl who has already been subjected to FGM may still have a well-founded fear of further persecution.” (See: UNHCR, Guidance Note on Refugee Claims Relating to Female Genital Mutilation, May 2009)
The Council of Europe Parliamentary Assembly Report Doc. 12350, 26 July 2010, Gender-related claims for asylum calls upon member states to ensure that “gender-based violence and gender-related persecution is appropriately taken into account in any asylum determination process.” The Report specifically identifies FGM and “Honour Crimes” as legitimate bases for granting asylum.
Important elements of legislation and policies on asylum relating to FGM should include the following:
Platform for International Cooperation on Undocumented Migrants, Strategies to End Double Violence Against Undocumented Women: Protecting Rights and Ensuring Justice (2012). This report offers a practical overview of methods that address discrimination and violence against undocumented survivors. It informs advocates about support services and methods to empower their clients by offering legislative, financial, and practical measures which have been used successfully in Europe. Available in English, French, and Spanish.
Leslye Orloff and Rachel Little, “Improving Accessibility of Your Program’s Services to Immigrant Women,” Revolution Volume 4, 2011, p. 5. Available in English.
Promising Practice: United States – Mandatory information to immigrant and non-immigrant entrants regarding FGM
United States: The United States Citizenship and Immigration (formerly Immigration and Naturalization) Services is required by law to provide information about FGM and the legal consequences of practicing FGM in the United States to immigrants and non-immigrants entering the United States from countries where FGM is widely practiced. The statute states:
(a) Provision of information regarding female genital mutilation
The Immigration and Naturalization Service (in cooperation with the Department of State) shall make available for all aliens who are issued immigrant or nonimmigrant visas, prior to or at the time of entry into the United States, the following information:
(1) Information on the severe harm to physical and psychological health caused by female genital mutilation which is compiled and presented in a manner which is limited to the practice itself and respectful to the cultural values of the societies in which such practice takes place.
(2) Information concerning potential legal consequences in the United States for
(A) Performing female genital mutilation, or
(B) Allowing a child under his or her care to be subjected to female genital mutilation, under criminal or child protection statutes or as a form of child abuse.
In consultation with the Secretary of State, the Commissioner of Immigration and Naturalization shall identify those countries in which female genital mutilation is commonly practiced and, to the extent practicable, limit the provision of information under subsection (a) of this section to aliens from such countries.
(c) "Female genital mutilation" defined
For purposes of this section, the term "female genital mutilation" means the removal or infibulation (or both) of the whole or part of the clitoris, the labia minora, or labia majora.
For more information on FGM and asylum claims in the United States see: Asylum Law and Female Genital Mutilation: Recent Developments, Yule Kim, CRS Report for Congress, 15 February 2008; CGRS Advice- Female Genital Cutting Asylum Cases, Center for Gender and Refugee Studies (October 2007).
For reference to additional cases see Ageng’o, Expert paper p.5-9.
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