The High Court has allowed a Nigerian woman to challenge a decision refusing her refugee status after finding an arguable case that the Refugee Appeals Tribunal had wrongly assessed the protection available against female genital mutilation.
The woman, identified as E.A.E., arrived in Ireland in March 2006 and applied for refugee status the following month. She said she was a member of the Urhobo tribe and that, after her marriage, her husband's family discovered she had not undergone female genital mutilation and began pressing her to undergo the procedure.
She told the protection authorities that the pressure increased after she became pregnant. She left Lagos for Kano in February 2006, returned to Lagos during unrest connected with the publication of Danish cartoons, and left Nigeria on March 28.
Her account of those events was not rejected on credibility grounds. The Refugee Appeals Tribunal nevertheless refused refugee status in October 2006. It concluded that state protection might reasonably have been available and noted that she had not sought help from police. It also referred to assistance available from NGOs and the possibility of relocating elsewhere in Nigeria.
McMahon J found substantial grounds for challenging that reasoning. The country information relied upon by the Tribunal itself recorded that there was no federal law prohibiting female genital mutilation, no relevant law in Lagos, that police often regarded the practice as a family matter, and that enforcement in states with legislation could be weak.
The judge said a state is not required to provide perfect protection, but the decision-maker must still examine whether a reasonable level of effective state protection exists in practice. Assistance from NGOs or women's lawyers was not a substitute for protection by the state for Refugee Convention purposes.
He also held that failure to approach police does not automatically defeat a refugee claim. Where the available evidence suggests seeking protection may have been futile or risky, that omission must be assessed in context.
Leave for judicial review was granted on four grounds concerning country conditions, state protection, the applicable legal test and reliance on non-state protection.