The decision

Appeal Number :HX25930-2001
MH & Others (Article 3-FGM) Sudan CG [2002] UKIAT 02691


Heard at : Field House
Determination Promulgated:
on : 15th April 2002
16 July 2002
Dictated : 30th April 2002


Mr J A O'Brien Quinn QC - (Chairman)
Mrs W Jordan
Mr M L James

Mohamed Elkhair HASHIM
Fadwar Omer EIJALLI (wife)
Eamen Mohamed Elkhair Ismail HASHIM (son)
Hashim Mohamed Elkhair HASHIM (son)
Mustafa Mohamed Elkhair HASHIM (son)
Reem Mohamed Elkhair HASHIM (daughter)


The Secretary of State for the Home Department



1. The Appellants, citizens of Sudan, appeal against the determination of an Adjudicator (Mr D A Kinloch) who dismissed their appeal against the decision of the Secretary of State, made on 11th April 2001, refusing their application for asylum or Refugee Convention and on human rights grounds.

2. The Appellants were represented by Mr C Bekoe - Tabiri (Solicitor), of Shah, Solicitors, while Mr M Blundell, Home Office Presenting Officer, represented the Secretary of State.

3. The Grounds of Appeal are attached.

4. Leave to appeal to the Tribunal was granted by the Tribunal (Mr H J E Latter, Vice President) on 14th December 2001. In granting leave to appeal the Tribunal stated as follows:-

"In my view the Grounds of Appeal are properly arguable in particular in relation to the issues arising from female genital mutilation."

5. When the appeal opened before the Tribunal on 15th April 2002, the main points argued before us were on the human rights aspect. It was argued that, as the sixth Appellant, namely the daughter of the first and second Appellant, was of an age that if she were returned to Sudan, she would face being forcibly circumcised. The submission was that female genital mutilation (FGM) which is widely condemned by international health experts as damaging to both physical and psychological health, is widespread in Sudan, especially in the north, and as an estimated 90 per cent or more of females in the north have been subjected to FGM, with consequences that have included severe urinary problems, infections, and even death, which is usually performed on girls between the ages of 4 and 7 by traditional practitioners in improvised, unsanitary conditions, causing severe pain, trauma and risk of infection to the child, if the child were returned to the Sudan, it would be a breach of Article 3 of the ECHR. It was submitted that the Adjudicator, in coming to his conclusions in the matter before him, had found, at paragraph 15, as follows:-

"I should record that to my mind the question of whether or not the practice of forced circumcision, especially with crude, unhygenic instruments, is inhuman or degrading treatment has to be judged by the standards of society's views in the UK. On this view it does not matter that the practice clearly commands widespread support in Sudan even amongst the female population. Taking this approach there is no doubt whatsoever, to my mind that it is degrading treatment."

6. It was also submitted that the Adjudicator, at paragraph 16 had held as follows:-

"I should also record that even though the Appellant would not have any degrading treatment applied directly to him, I accept that to send the Appellant and his family back to a country where circumcision would take place to the Appellant's daughter would be degrading for the Appellant as a family member, and would amount to a breach of Article 3 of the Convention."

7. It was also submitted that, although the Adjudicator, in paragraph 17, had stated that although he had found as he did in paragraphs 15 and 16, he found, in paragraph 17, that he did not accept the claim of the first and second Appellant that they would be powerless to prevent their young daughter from being circumcised should they have to return to Sudan. In making that decision, he noted that he had not heard any evidence from the first Appellant's wife (the second Appellant), as to the question of circumcision, although a letter which would appear to have been from her, had been lodged during the process.

8. The question of the son of the family, Mustafa, the fifth Appellant, being autistic, was also raised before the Adjudicator, and it was argued that he was not correct in finding that while the Adjudicator had accepted that it was true that the child was autistic, he found that his return to the Sudan would not be in breach of Article 8 or of Article 11, for the reasons which he set out in paragraph 20 of the determination.

9. The main argument, in the first place, was whether or not the sixth Appellant, the daughter, came within the category of a member of a "social group" under the Refugee Convention.

10. Reliance was placed on the House of Lord's decision in Shah and Islam [1999] Imm AR 283.

11. We have given careful consideration to the submissions made to us in this matter, and, as we see it, we find that the question of deciding whether or not an Appellant is a member of a particular "social group" we must first answer the following questions:-

1. What is the particular social group in question and is the group definable?

2. Does the "particular social group" have an identity in the country of origin in the eyes of

(a) the community at large, or

(b) the persecutors; or

3. Do the members of the particular social group have a shared and mutable characteristic i.e. one which either

(a) is beyond the ability of the Appellant to change either because it is innate and unchangeable or because it is a former characteristic of the Appellant which cannot now be changed (e.g. previous membership of the army) or

(b) is so fundamental to their identity, their human dignity or conscience that they ought not to be required to change.

12. We have also considered the words of the House of Lords in Shah and Islam where it stated that it is generally agreed that the particular social group must constitute a recognisable group sharing common characteristics which set its members apart from society at large and for which they are jointly condemned by their persecutors. It was also stated that what constitutes a recognisable group is a function of the particular society in which it exists. Further it was held in Shah and Islam that a concept of a group means that what is being dealt with are people who are grouped together because they share a characteristic not shared by others, not with individuals and that the word "social" means that what is being asked is that a group of people which is recognised as a particular group by society could be identified.

13. In other words, as we see it, young girls in Sudan, as such, do not form a particular social group as such, but only insofar as they may face persecution by the application of female genital mutilation. In our opinion, they do not form a particular social group under the Refugee Convention.

14. However, under the Human Rights Act, the situation is different. We consider that the Adjudicator came to the correct conclusion in finding that to send the first Appellant and his family back to a country where circumcision would take place to the first Appellant's daughter, would be degrading for the Appellant as a family member, and would amount to a breach of Article 3 of the ECHR.

15. The main point to be considered is whether or not the Appellant and his wife would be powerless to prevent their daughter being circumcised should they have to return to Sudan.

16. In this connection, we have considered the arguments and the documents placed before us. In the first place, in "Female Genital Mutilation - a Human Rights Information Pack", issued in 1998, is stated as follows:-

"Female genital mutilation is widely practised in northern Sudan, and to a much lesser extent in the south. Attempts have been made to eradicate FGM in the past 50 years. Despite this, women are still being infibulated. Sudan was the first African country to outlaw FGM. In 1946 the Penal Code prohibited infibulation but permitted sunna, the less radical form of FGM. The law was ratified again in 1957, when Sudan became independent. In 1991 the government affirmed its commitment to the eradication of the traditional form of FGM. In 1993 the Penal Code, however, does not mention FGM, leaving its status unclear."

17. Further, it is also stated in a report on the history and practice of FGM in Sudan, that, even though infibulation has been declared illegal and the trend was that people with higher degrees of education in the cities started abandoning the circumcision, the practice proved to be too deeply embedded in the traditional system of beliefs in the rural areas of Sudan. It was stated that, even in the cities, the practice was not completely stopped or abandoned; instead less severe forms of FGM started replacing infibulation.

18. In addition, we have before us, as had the Adjudicator, the letter produced by the second Appellant, in which she gave a history of how she, herself, had come to be circumcised. Her evidence is that, even though her father was strongly against the practice and had assured her that he would protect her from it, yet she had been circumcised against her father's wishes when he had travelled out of the country. She also stated that even though she and her husband did not agree with the practice, her mother and her mother-in-law and other females on both sides of the family were strongly in favour of the practice and that they would exert such pressure and employ every trick they could muster to have her daughter circumcised if they were to find themselves back in Sudan. She also pointed out that one of her nieces had died as a result of complications arising from being circumcised, some two weeks after the event in 1998. She stated that it is thought generally in Sudan that an uncircumcised girl was a disgrace to the family, that she would be an outcast and would never get married. She also stated that it was the tradition that she would be socially excluded and that if she wanted to live in the community or have any links with them, she would have to be circumcised.

19. We also took account of a document produced by an organisation called "Forward", where it states that the WHO (World Health Organisation), Working Party, defined four types of female genital mutilation, all of which involved the excision of certain parts of the vaginal area of women, went on to deal with the Appellants in this particular appeal, and stated that, while it agreed with the findings of the Adjudicator in paragraphs 15 and 16 of his determination, they did not agree the Adjudicator, that the first Appellant and the second Appellant would be able to protect their daughter at all times should they be returned to the Sudan. It was stated that, with the best will in the world, the family structure and power relations that existed in Africa would make it extremely difficult for them to ensure that their daughter would not have to undergo FGM. They drew attention to the second Appellant's letter with regard to her experiences, and agreed that the view is held that even if the husband and wife are against the practice, they would be considered to be "young" and that the older women would know better. It also stated that even if the parents were angry at the mutilation, they would still have to accept it as there is nothing they could do about it; FGM not being reversible.

20. Forward also stated that the option of moving away to another part of Sudan would not solve the problem as, due to the African extended family structure, the Appellant's family would not be able to completely escape from all members of their extended families. It was stated that once there are women older than the first and second Appellant, they would be subjected to inordinate pressure for their daughter to be mutilated. It also stated that, although a law against infibulation had existed in Sudan since 1849, there was no effective policing of the law, as evidenced by the very high numbers of women and girls who have been mutilated.

21. We have also taken account of two determinations of the Tribunal to us, namely Met Sula [2002] UKIAT 00295 intersec Frantia Katrinak [2001] ELR (June 12th 2001).

22. Taking account of the traditional situation where female genital mutilation takes place in Sudan, despite the fact that it is illegal, we are satisfied that it takes place and that, having regard to the extended family situation in Sudan, whereas the first Appellant, as a dentist, would, in all probability, carry on his profession in the cities, nevertheless we are satisfied that it would be an almost impossible task for the first and second Appellants to protect their daughter, at all times, from being taken by her relatives and FGM performed upon her. In those circumstances, we are satisfied that to return the Appellants to Sudan would be in breach of Article 3 of the European Convention on Human Rights, in that it would clearly subject the sixth Appellant to the degrading treatment of female genital mutilation.

23. With regard to the Refugee Convention grounds, upon which the Adjudicator dismissed the appeal, we find that we are fully in agreement with the Adjudicator that the first Appellant's evidence fell far short of showing that there was any real risk of persecution if he were to be returned to Sudan.

24. With regard to the point raised with regard to the family's autistic son, the fifth Appellant, we are wholly in agreement with the views expressed by the Adjudicator, in paragraph 20 of his determination, where, basing his findings on SCC v Sweden and Kay v the Secretary of State for the Home Department [2001] Imm AR 11, he found that he was satisfied that it would not be a breach of the ECHR for him to be sent back to Sudan.

25. This appeal is, now, allowed only on the question of there being a breach of Article 3 of the ECHR in respect of the 6th Appellant as we find that, in the circumstances which we have considered above, it would constitute a breach of Article 3 for the Appellants to be returned to Sudan, but the appeal is dismissed on all other aspects.