The claimant in the case was a young woman from Sierra Leone, Zainab Fornah. She had become caught up in the civil war there and had been repeatedly raped by a rebel leader. An uncle had arranged her escape from the country, and the claimant resisted her return to Sierra Leone on the basis that she would have to return to her uncle’s village where she would be subjected to FGM. Her account was accepted by the immigration adjudicator, but to qualify under the UN Refugee Convention she had to show that the persecution she faced on return was because of her membership of a particular social group. Ms Fornah’s case before the House of Lords was that her social group was “women in Sierra Leone”.

All five members of the House of Lords allowed Ms Fornah’s case. All parties in the case agreed that the severe pain and permanent harm caused by FGM amounted to a violation of human rights, including rights of the child, and can be regarded as persecution. This despite the fact the court accepted that the majority of women at least accepted the practice because of its “totemic significance” as a rite of passage in Sierra Leone.

Lord Bingham of Cornhill explained that women in Sierra Leone are a “group of persons sharing a common characteristic, namely a position of social inferiority compared with men” and that “FGM is an extreme and very cruel expression of male dominance” even though it was mainly inflicted by women. Other judges also upheld the case but on the basis that the group the claimant belonged to was “uninitiated indigenous females in Sierra Leone” on the basis that they were considered “an abomination, fit for only the worst kind of sexual exploitation”.

Baroness Hale of Richmond thought the case “blindingly obvious”. She wondered why it was only in the UK that, until this ruling, there had been doubt that being a woman at risk of FGM brought that woman within the UN Refugee Convention. FGM was only “visited upon its victims because they are female members of the tribes within Sierra Leone who practice FGM”.

The judgments in the House of Lords convincingly dispel the myth that FGM is simply a custom performed by women on women, and provide a powerful recognition that the practice constitutes a blatant breach of human rights in male-dominated societies. As such it deserves wider readership than the asylum lawyers who will find it of most practical use.

Stephen Cragg is a barrister specialising in public law at Doughty Street Chambers
E-mail: s.cragg@doughtystreet.co.uk

Explore Public Sector

• How to get a job

Times Recommends

• Inspirational leadership
• How to get a new job
• The reluctant CEO