R.W. AND OTHERS v. SWEDEN
Inadmissible
André Potocki;Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Elisabet Fura;Ganna Yudkivska
The applicants, Ms R.W. and her twin daughters, are Kenyan nationals who were born in 1986 and 2009. They were represented before the Court by Mr J. Nyström, a lawyer practising in Skellefteå. The first applicant arrived in Sweden from Nairobi, Kenya on 9 July 2008 and applied for asylum on the same day. She submitted before the Migration Board (Migrationsverket) that she had been subjected to an attempted female genital mutilation (FGM) or possibly to an initiation to the Mungiki sect by friends of her former boyfriend. In January 2008 the applicant had allegedly run away from home to marry her boyfriend, with whom she had been in a relationship for approximately one year. The boyfriend, who belonged to the Mungiki sect, had taken her to see an old man who had performed some sort of ritual. She did not know if the ritual had been performed in order for them to get married or if it had been an initiation to the Mungiki group. After the ritual her boyfriend had taken her to a friend’s home and subsequently left the house. His friends had told her that they were going to perform FGM on her. When she refused to cooperate, they had beaten and raped her. They had been interrupted by neighbours who had heard her scream, but the perpetrators had told her that she would not get away. After the incident she had returned to her family home and told her mother about the incident. Her mother had urged her to report the perpetrators, but she had been afraid to do so as the boyfriend’s clan had great influence on the police and authorities. Instead she had moved to a friend’s home in Kakamega shortly after the incident and had subsequently left the country, due to her fear of being found by her boyfriend. She feared that she would be killed or persecuted by her boyfriend or other members of the Mungiki group as she had refused FGM and had run away. Shortly after her arrival in Sweden, the applicant met a man and became pregnant. The man, who was later deported from Sweden, did not want to take any responsibility for the applicant or his children. On 9 September 2009 the Migration Board questioned the applicant’s credibility and rejected the request for asylum. The Board noted that FGM was prohibited by law in Kenya, but was still practised, inter alia, by the Mungiki sect. It further noted that women at risk of being subjected to FGM often did not receive sufficient protection. However, the applicant had stated that her mother opposed female genital mutilation, and that she had urged the applicant to report the perpetrators to the police. Furthermore, the applicant had not known the purpose of the ritual to which she had been subjected and it was therefore found unlikely to have been an initiation to the Mungiki sect. It was noted that the applicant’s boyfriend had not searched for her, despite her claim that he knew where she was. The Board found that the applicant would be able to seek protection from the Kenyan authorities and her own family. According to her own information, FGM was no longer practised by her people, the Kikuyu. On 14 September 2009 the second and third applicants were born. The applicant appealed against the Board’s decision to the Migration Court (Migrationsdomstolen) and added that she had given birth to two children out of wedlock and would be regarded as a prostitute in Kenya. She submitted that she was no longer in contact with her mother, and did not know how her mother would react to the applicant having children. She had travelled to Sweden by plane via another European country, but did not know which. She had not carried a passport. On 25 March 2010 the Migration Court rejected the applicant’s appeal and upheld the Board’s decision. The court found reason to question the applicant’s story, in particular with regard to her identity and her travel route to Sweden. This affected her overall credibility. Her account of the alleged incident was considered vague. She had not known whether the alleged ritual was an initiation or a wedding ceremony, and her description of the ritual contradicted country information. The court considered that it was not likely that the applicant had been married or initiated through the alleged ritual. She was considered to have been subjected to a criminal offence performed by private actors and such criminal activity was predominantly an issue for the Kenyan authorities. Referring to relevant country information, the court found that the police were taking measures to control the Mungiki sect. The applicant had failed to demonstrate that the domestic authorities were not willing or able to protect her. It was furthermore noted that FGM was not performed by her people, and that her family opposed the tradition. On 6 May 2010 the Migration Court of Appeal (Migrations-överdomstolen) refused leave to appeal. An application for asylum was also submitted on behalf of the second and third applicants. It referred to their mother’s involvement with the Mungiki sect and stated that they were at risk of FGM if deported to Kenya. It was also submitted that they would be at risk of ill-treatment as they had been born out of wedlock. On 15 July 2010 the Migration Board rejected the second and third applicants’ request for asylum. The Board referred to its decision regarding the first applicant and found that it was not plausible that they would be at risk of FGM and ill-treatment on return to Kenya. On 29 October 2010 the Migration Court rejected the second and third applicants’ appeal and upheld the Board’s decision. On 23 March 2011 the Migration Court of Appeal refused leave to appeal. The provisions mainly applicable in the present case, concerning the right of aliens to enter and to remain in Sweden, are laid down in the Aliens Act (Utlänningslagen, 2005:716). Chapter 5, section 1 of the Act stipulates that an alien who is considered to be a refugee or otherwise in need of protection is, with certain exceptions, entitled to a residence permit in Sweden. According to Chapter 4, section 1 the term “refugee” refers to an alien who is outside the country of his or her nationality owing to a well-founded fear of being persecuted on grounds of race, nationality, membership of a particular social group, religious or political beliefs, grounds of gender, sexual orientation and who is unable or, owing to such fear, is unwilling to avail himself or herself of the protection of that country. This applies irrespective of whether the persecution is at the hands of the authorities of the country or if those authorities cannot be expected to offer protection against persecution by private individuals. By “an alien otherwise in need of protection” is meant, inter alia, a person who has left the country of his or her nationality because of well-founded fear of being sentenced to death or receiving corporal punishment, or of being subjected to torture or other inhuman or degrading treatment or punishment (Chapter 4, section 2). As regards the enforcement of a deportation or expulsion order, account has to be taken of the risk of capital punishment or torture and other inhuman or degrading treatment or punishment. According to a special provision on impediments to enforcement, an alien must not be sent to a country where there are reasonable grounds for believing that he or she would be in danger of suffering capital or corporal punishment or of being subjected to torture or other inhuman or degrading treatment or punishment (Chapter 12, section 1). In addition, an alien must not, in principle, be sent to a country where he or she risks persecution (Chapter 12, section 2). Norwegian country information (Norwegian Landinfo, Report Kenya: Mungiki – Abusers or abused?, 29 January 2010) describes the Mungiki group as follows. “[T]he Mungiki movement [is] the largest and best known of the organised armed criminal, political and religious groups in Kenya, with a large following among the Kikuyus. Mungiki operates primarily in the Nairobi slums, in the Central Province and in the Rift Valley. Although Mungiki offers poor residents in slum areas protection and social services, extortion and violence tend to constitute their mode of operation. Gross human rights violations perpetrated against civilians, adversaries and defecting members are attributed to them. The Kenyan authorities have not succeeded in their attempts to limit Mungiki’s influence or abuses, despite recent crack downs...” The Mungiki movement is also reportedly “encouraging, demanding and enforcing female genital mutilation practices upon girls and women in its communities”, including partners and family members of those who have joined the movement. Members who defect are at serious risk of being killed or harassed. In a report on female genital mutilation, UNICEF states that the prevalence of the practice in Kenya has decreased in recent years. Throughout Kenya, 27% of all women have been mutilated. Among Kikuyus, 21% of all women aged 15-49 are said to have been mutilated (United Nations Children’s Fund, The Dynamics of Social Change. Towards the Abandonment of Female Genital Mutilation/Cutting in Five African Countries, October 2010). More recently, the U.K. Home Office (Operational Guidance Note – Kenya, 2 February 2012) stated the following: “3.6.5 The Government of Kenya has taken a clear position on the abandonment of FGM and other harmful tribal practices. It is illegal to carry out FGM on females aged 18 or younger, although no similar protection currently exists for women over the age of 18... 3.6.7 The available evidence suggests that the ability and willingness of the authorities to protect women from the imposition of FGM is slowly increasing. The number of churches, NGOs and other organisations actively working to protect women and girls from FGM and to end the practice is also steadily increasing. However, the accessibility of such protection is variable, geographically and in terms of the circumstances of individual women. It is easier for women to access protection in areas where FGM is less culturally prevalent... 3.6.9. There are particular concerns for applicants whose FGM claim includes fear of the Mungiki. The Mungiki have been criticised for encouraging, demanding and enforcing FGM practices upon girls and women in its communities, on the grounds that it is a traditional African practice. The Mungiki are known to force their female family members to undergo FGM. There is no evidence to suggest either that the condition of being married is any protection to women, or that single women are at greater risk. FGM may also be forced upon the wives of Mungiki defectors. Anti-FGM legislation provides protection to children and girls below the age of 18; it does not address the protection needs of adult women. However, there are community centres, particularly in the southern areas of the Rift Valley, that now provide sanctuary to young women and girls who have escaped forced FGM... 3.6.10...The authorities actively take measures to prevent FGM, although there have been relatively few prosecutions. Accordingly, those in fear of being forced to seek FGM for their child should be able to seek the protection of the state. Those in fear of undergoing FGM may, in general, seek the protection of the authorities. 3.6.11 Caseowners should consider cases in which there is no Mungiki element within the context of the AIT guidance on internal relocation...In general internal relocation is likely to be a viable option in such cases. 3.6.12 For cases where there is a Mungiki element, caseowners should consider cases on their individual merits...Given the increasing efforts of the Kenyan authorities to crack down on suspected Mungiki members, and also that Kenya has an area of 224,081 square miles, with a population of approximately 40,000,000 people, internal relocation may be feasible in individual cases.”