The High Court has quashed a Refugee Appeals Tribunal decision that a Sudanese girl would not face a risk of female genital mutilation (FGM) if returned to Sudan, and remitted her appeal for a fresh determination by a different Tribunal Member.
The judgment, delivered by Ms Justice M. H. Clark on 21 March 2013, concerned judicial review proceedings brought by two anonymised minor applicants through their mother. The challenge focused on the Tribunal’s assessment of the first applicant’s risk, not on whether FGM was prevalent in Sudan. The Tribunal had accepted evidence that the practice was widespread and that family and social pressure helped sustain it.
The parents, who came to Ireland as asylum seekers in 2005, said they had come to oppose FGM and that their daughters had not undergone it. They told the Tribunal that relatives in their home town had asked why the first girl was uncircumcised. Her father said his family would pressure him to have it done; her mother said her family would force her. The parents also described social exclusion and reduced marriage prospects for uncircumcised girls. The State respondents questioned the depth of the parents’ opposition and argued they could protect their daughter or relocate within Sudan.
The Tribunal had concluded that the parents’ opposition would enable them to prevent relatives from arranging the procedure. It also considered that the family could move elsewhere in Sudan, where the girl’s circumcision status might not be questioned. The judge held that the Tribunal had not adequately considered the risk that relatives might act without the parents’ approval, or that the parents might yield to pressure after returning to a society where FGM was widely accepted. The court said the issue was the likelihood of risk to the girl, not the strength of the parents’ present opposition while in Ireland.
The court found the conclusion that the parents could ensure their daughter’s safety unreasonable and in error of law. It quashed the decision concerning the first applicant and ordered that her appeal be reconsidered by a Tribunal Member unfamiliar with the case, who must be informed of the court’s reasons.
The judgment did not decide the asylum appeal or grant refugee status. It noted that a separate application had been made for the applicants’ infant sister and suggested the sisters’ appeals might be heard together. The court also said there seemed little point in proceeding with the brother’s case until the sisters’ cases were determined. Those observations did not alter the order quashing the decision on the first applicant’s appeal.