CAT/C/59/D/644/2014
The facts as presented by the complainant
2.1
The complainant is a Catholic Christian who belongs to the Esan (or Ishan) ethnic
group. She grew up in Benin City, Edo State, Nigeria. She submits that, in 2000, she moved
to Italy, where she worked and had a temporary residence permit. She worked firstly as a
babysitter and then as an employee in a porcelain company. She married her now exhusband in 2004; he is also a Nigerian national, from the Uromi ethnic group. They have
three daughters. The first two children were born in Italy and the third in Sweden. In 2008,
the complainant lost her job. She claims that, since she was unemployed, she became
dependent on her husband’s residence permit, and would lose her permit if her husband
became unemployed or if she divorced him.
2.2
The complainant’s then mother-in-law, living in Nigeria, insisted that the daughters
should undergo female genital mutilation. Following a family visit to Nigeria in 2010, the
complainant’s husband also started to insist. When the complainant refused, he became
aggressive and abused her physically. The complainant submits that, on an unspecified date,
she informed the Italian welfare services of the situation; that she was told that an
agreement had to be personally reached with her husband; and that she did not denounce
her ex-husband’s abuses for fear of losing her residence permit, and because she did not
believe the Italian authorities would provide her with assistance. In 2012, when she was
pregnant with her third daughter, she decided to leave her husband because she feared that
he would use the opportunity to take the two older daughters to Nigeria when she was
hospitalized to give birth.
2.3
On 1 September 2012, while pregnant with her third child, the complainant arrived
in Sweden with her other two daughters and applied for asylum on the same day. She
claimed that, if her daughters were returned to Nigeria or Italy, they would be at risk of
female genital mutilation performed on the instructions of their father and grandmother.
Furthermore, her siblings, living in Nigeria, had had their own children mutilated and also
supported such practices. On 3 April 2013, the Swedish Migration Agency rejected her
application. It stated that her account did not fit the requirement of being probable and
credible, since she had been able to protect her daughters against female genital mutilation
thus far; that she had not turned to the Italian or Nigerian authorities for protection; and that
she had not submitted any written documents to support her asylum request. Moreover, the
complainant had no problem with the authorities in her country of origin. The Migration
Agency also noted that 30 per cent of all women in Nigeria were genitally mutilated; that
the practice was most common in the southern areas of Nigeria, performed by Igbo and
Yoruba ethnic groups; that 82.4 per cent of victims of female genital mutilation were
mutilated during the first year of age, 1.6 per cent between the ages of 1 and 4 years, and
12.5 per cent after 5 years of age; that, according to a country report about Nigeria, the
number of female genital mutilations had decreased; and that Edo State had a ban on female
genital mutilation and the law had criminalized the act. 1 Against this background, it found
that it was unlikely that the complainant’s daughters would face the risk of being subjected
to female genital mutilation if returned to Nigeria, and that it was not against the three
children’s best interests to return them to Nigeria, along with their mother. Accordingly, the
Migration Agency gave the complainant four weeks to leave the country voluntarily with
her children.
2.4
On 25 April 2013, the complainant appealed the Migration Agency’s decision before
the Migration Court. She submitted that, despite the ban on female genital mutilation in
Edo State, the practice of female genital mutilation continued, as shown by the fact that
there was no information that anyone had been prosecuted for such acts; that those
1
2
The Migration Agency’s decision refers, inter alia, to the Operational Guidance Note: Nigeria issued
by the Home Office of the United Kingdom of Great Britain and Northern Ireland in January 2013.