Rejection of refugee status for girls allegedly at risk of female genital mutilation overturned by High Court

An appeals tribunal made conclusions lacking “any factual basis” when rejecting a Nigerian family’s international protection application, the High Court has found

The married couple and their two underage daughters arrived in Ireland on tourist visas in February 2019 and claimed refugee status on grounds that the girls would be forced to endure female genital mutilation (FGM) if returned to Nigeria.

The mother claimed she was a victim of FGM when she was nine-years-old, and the couple alleged the daughters were at risk of harm from the mother’s relatives.

Mr Justice Alexander Owens overturned the International Protection Appeals Tribunal’s recommendation that neither refugee status nor subsidiary protection should be granted and remitted the appeals for fresh hearing.

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The tribunal “erred in law” in excluding at least one document the family had submitted and by incorrectly analysing facts relevant to another document, he said.

These errors were “sufficiently serious” to justify an order setting aside the tribunal’s determination.

The documents were submitted to the tribunal after it had reached an adverse finding about the applicants, but it reconsidered matters in light of the new submissions and its initial view did not alter.

The judge said the tribunal did not disclose its reasoning for rejecting a report from the Commissioner of Police in Lagos. If there was a concern about its authenticity, this should have been canvassed so the applicants had an opportunity to comment, he added.

A letter from Lagos solicitors to Nigerian Police Force Headquarters was given no weight as something that could go in favour of the applicants, the judge went on.

The tribunal concluded that if the letter was genuine, the couple waited until getting to Ireland to get the woman’s brother to complain to police about the alleged FGM threats, but these findings “lacked any factual basis”. The letter predated the family’s departure for Ireland and there was no evidence the couple instigated her brother to make a report to Nigerian police, he added.

The tribunal was sceptical about the veracity of the woman’s evidence about the letter, and it recommended refusal of protection to the family after concluding the couple gave unreliable and contradictory accounts about their claim.

The judge said the tribunal rejected various other claims, including that a male stranger who appeared in their bedroom in 2018 was acting on behalf of the feared clan.

The tribunal also noted the couple did not complain to non-governmental organisations or state authorities dealing with FGM in Nigeria.

It was satisfied that FGM is illegal in Lagos, where the applicants lived, while accepting it may still be carried out in rural villages. It came to the conclusion the daughters were not at risk of FGM if they returned to Lagos and did not find the alleged threats from relatives to be credible.

Mr Justice Owens said a tribunal should not, in general, draw adverse inferences on the origins of a document without giving the applicant an opportunity to address the concerns.

It is important that “mere suspicions” about the authenticity of documents are not used to cast doubt on an applicant’s general credibility.

However, introducing material after a hearing “cannot be allowed to become an instrument of ambush”, and there is a risk that such material will be rejected, he added.