A.L. v. THE UNITED KINGDOM

FIRST SECTION

DECISION

Application no. 32207/16
A.L.
against the United Kingdom

The European Court of Human Rights (First Section), sitting on 13 March 2018 as a Committee composed of:

Kristina Pardalos, President,
Ksenija Turković,
Tim Eicke, judges,
and Renata Degener, Deputy Section Registrar,

Having regard to the above application lodged on 7 June 2016,

Having regard to the interim measure indicated to the respondent Government under Rule 39 of the Rules of Court,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, A. L., is a Nigerian national, who was born in 2012 and lives in Nottingham. Her application was lodged on 7 June 2016. She was represented before the Court by Ms. Usha Sood, a lawyer practising in Nottingham. The United Kingdom Government (“the Government”) were represented by their Agent, Ms. R. Sagoo of the Foreign and Commonwealth Office.

2. On 24 June 2016 the Court decided of its own motion that the applicant’s name should not be disclosed (Rule 47 § 4 of the Rules of Court).

A. The circumstances of the case

3. The facts of the case, as submitted by the parties, may be summarised as follows.

4. The applicant’s mother, a Nigerian national, married the applicant’s father in Nigeria on 3 December 2008. The applicant’s sister was born in Nigeria in 2010. The applicant’s mother arrived in the United Kingdom on 12 January 2011 as a Tier 4 (General) Student, leaving behind her husband and her daughter. Her visa was valid to 30 August 2012. In April 2011 she returned to Nigeria and found that her daughter, the applicant’s sister, had been subjected to female genital mutilation (“FGM”) without her consent. She returned to the United Kingdom on 5 May 2011 and was subsequently joined there by her husband and daughter. The applicant and her twin brother were born in June 2012 in the United Kingdom.

5. On 4 April 2012 the applicant’s mother had applied for a Post Study Work Visa. However, the application was refused on 24 September 2012 and the appeal was subsequently dismissed.

6. On 5 February 2013 the applicant’s mother claimed asylum. The applicant, together with her twin brother, older sister and father, were dependant on the claim. The applicant’s mother alleged that if the family were returned to Nigeria the applicant would be forced to undergo FGM at the hands of her and her husband’s respective families. The applicant’s mother stated that she was a member of the Ukwano tribe in which FGM was commonly practiced. Her mother had undergone FGM at age twenty three, when she was pregnant with her first child, and she herself had undergone FGM at the age of eleven. While she was in the United Kingdom her eldest daughter had been subjected to FGM by members of her husband’s family. Following the applicant’s birth she had been summoned various times by her and her husband’s respective families to present the applicant for FGM.

7. The applicant’s mother also claimed that her removal to Nigeria would be in breach of Article 8 as the applicant and her brother had been born in the United Kingdom and she had been in the United Kingdom since 5 May 2011.

8. In support of her claim she submitted two photocopied documents prepared by a doctor which confirmed that both she and her eldest daughter had undergone FGM. She also submitted a printed social media message and email transcript from a cousin which stated that the applicant should be brought to Nigeria in order to undergo FGM as “no female in the family is uncircumcised” and that “it is less painful and better to circumcise [the applicant] now that she is still young, because she won’t understand the pain.” Finally, she submitted an original handwritten document drafted by a village chief, stating that “all traditional rites including circumcision must be accomplished”.

9. On 6 January 2015 the asylum application was refused and a decision was made to remove the family from the United Kingdom. The Secretary of State for the Home Department found FGM to be endemic and ubiquitous for females in Nigeria and accepted that there was an inherent history of FGM prevalent in the applicant’s family. She therefore accepted that the applicant’s sister had undergone FGM in Nigeria at the hands of her father’s family and that the applicant was at risk of being forced to undergo FGM by her mother and father’s respective families. However, the Secretary of State considered that the risk would be alleviated if the family were to internally relocate within Nigeria.

10. In particular, she noted that Abuja was a populated area a considerable distance away from Lagos, where some of the members of the applicant’s father’s family resided, and an equally substantial distance from Benin City, where the applicant’s mother had been born. The applicant’s mother had accepted that her husband’s family’s influence was limited to their village and the possibility of members of his family locating the family unit in Abuja was described as “wholly and unequivocally precluded”. Furthermore, the Secretary of State found that internal relocation would be a feasible option and not unduly harsh. The applicant’s mother was highly educated to Master’s level and the applicant’s father had applied for leave to enter the United Kingdom as a Student/Student nurse in 2004, indicating a willingness to seek employment. Consequently, there would be careers available to both of them in Abuja and education would also be available to the children. There was a fully functioning and active police force in Abuja and the country information indicated a willingness of the Nigerian authorities to prosecute perpetrators of FGM.

11. As regards Article 8, the Secretary of State noted that the applicant and her brother had been born in the United Kingdom but found no reason why they could not adopt the Nigerian nationality of their parents. There was no evidence of any family ties to the United Kingdom and the family did not meet the requirements of the Immigration Rules.

12. The applicant’s mother appealed to the First-Tier Tribunal (Immigration and Asylum Chamber). She argued that she and her husband did not have the capacity to fight their families and that there would be immense pressure for them to ensure that the applicant underwent FGM. It would not be possible for them to relocate as FGM was a traditional act in Nigeria and there would be a danger anywhere. In addition to this claim she added that the applicant had been diagnosed with having a low blood count and that twins were sacrificed in Abuja.

13. On 2 April 2015 the First-Tier Tribunal dismissed the appeal. The Tribunal held that the assertion that the family would be detected in Abuja was somewhat speculative as there was no evidence to suggest that the family would be sought out or that the respective families had the wherewithal to pursue them or to get connections of theirs to look out for them in major cities or elsewhere in Nigeria. The Tribunal further held that the evidence that the children would be at risk of being sacrificed in Abuja on account of being twins was also speculative. With regard to the applicant’s low blood count, the evidence provided did not demonstrate any medical condition reaching the high threshold required by Article 3 of the Convention. In any case, the Tribunal held that suitable medical treatment was available in Nigeria which the family could access if needed. It was in the best interests of the children to remain with their parents and given their ages (five and two) it was reasonable to conclude that they would be able to adapt to life in Nigeria. The family had established a limited private life in the United Kingdom and the Tribunal did not find the proposed interference to be of such gravity as to engage Article 8. In any event, any interference would be in accordance with law and both necessary and proportionate.

14. The family sought permission to appeal, which was granted on 22 July 2015. On 8 October 2015 the Upper Tribunal dismissed the appeal, finding that the First-Tier Judge had properly directed herself to the relevant test and had been entitled to conclude that it would be reasonable for the family to relocate to Abuja.

15. On 22 April 2016 the Court of Appeal refused permission to appeal, expressing surprise that permission to appeal to the Upper Tribunal had been given. The First-Tier Tribunal had found that the applicant would not be at risk on return to Abuja and it would be reasonable to expect the family to relocate. The application was an attempt to appeal clear findings of fact which it had been open to the Tribunal to make.

16. No removal directions have been set. Nonetheless, on 7 June 2016, the applicant sought an interim measure from this Court in order to prevent her removal. On 24 June 2016 the Court indicated to the Government of the United Kingdom that the applicant should not be removed until further notice.

B. Relevant domestic law and practice

17. Sections 82(1) and 84 of the Nationality, Immigration and Asylum Act 2002 provide for a right of appeal against an immigration decision made by the Secretary of State for the Home Department, inter alia, on the grounds that the decision is incompatible with the Convention.

18. Section 10 of the Immigration and Asylum Act 1999 (“the 1999 Act”) concerns the removal of persons unlawfully in the United Kingdom. Section 10(1) of the 1999 Act provides that a person may be removed from the United Kingdom under the authority of the Secretary of State or an immigration officer if the person requires leave to enter or remain in the United Kingdom but does not have it.

19. Appeals in asylum, immigration and nationality matters are heard by the First Tier Tribunal. Section 11 of the Tribunals, Courts and Enforcement Act 2007 provides a right of appeal to the Upper Tribunal, with the permission of the First-tier Tribunal or the Upper Tribunal, on any point of law arising from a decision made by the First-tier Tribunal other than an excluded decision.

20. Pursuant to s.13 of the Tribunals, Courts and Enforcement Act 2007 there is a right of appeal to the Court of Appeal on a point of law arising from a decision of the Upper Tribunal. Article 2 of the Appeals from the Upper Tribunal to the Court of Appeal Order 2008 provides that permission to appeal will not be granted unless the proposed appeal would raise some important point of principle or practice; or there is some other compelling reason for the Court of Appeal to hear the appeal.

21. Section 2 of the Human Rights Act 1998 provides that, in determining any question that arises in connection with a Convention right, courts and tribunals must take into account any case-law from the Court so far as, in the opinion of the court or tribunal, it is relevant to the proceedings in which that question has arisen.

C. Relevant information as regards FGM in Nigeria

22. Prior to May 2015, there was no general federal law against the practice of FGM in Nigeria. While 12 of the 36 states had adopted laws specifically prohibiting FGM, the U.S. Department of State Country Report on Human Rights Practices (2016) for Nigeria remarked that NGOs “had to convince local authorities that state laws apply in their districts”.

23. The Violence Against Persons Prohibition Act (“VAPP”), passed in May 2015, was the first federal law to criminalise FGM across Nigeria. According to the VAPP, a person who performs FGM is liable on conviction to a maximum of four years in prison or a fine of 200 000 NGN (approximately $635), or both. Those who aid, incite or counsel others to perform FGM are liable on conviction to a maximum of two years’ imprisonment, a fine of 100 000 NGN (approximately $317) or both.

24. The provisions of the VAPP apply only to the Federal Capital Territory (which includes Abuja) until adoption by state legislatures. Implementation of the law varies across the country and depends on state and federal police capacity and willingness. Further, there are low rates of reporting and prosecution. According to an October 2016 report by the registered charity and advocacy group “28 Too Many” three critical challenges to the enforcement of the VAPP relating to FGM are: the majority of states have not criminalised the practice under the VAPP, an effective enforcement authority has to be created, and cultural ties to FGM have to be broken.

25. The Nigerian Demographic and Health Survey 2013 (“NDHS 2013”) found that one in four women aged 15 – 49 had been circumcised. Of those women who had undergone female genital mutilation, 82% had undergone the procedure before their fifth birthday. Further, it was found that female genital mutilation is more prevalent in the southern zones than in the northern zones in Nigeria. The report found that the higher a mother’s level of education, the less likely it was that her daughter had been circumcised. Finally, 64% of women and 62% of men surveyed thought that the practice of female genital mutilation should not continue.

26. The U.S. Department of State Country Report on Human Rights Practices (2016) for Nigeria found the following:

“According to a UNICEF 2016 report, among women 15-49 years of age, 25 percent had undergone the practice. Mothers reported 17 percent of girls age 14 and younger had similarly undergone FGM/C (Female Genital Mutilation/Circumcision). The age at which women and girls underwent the practice varied from the first week of life until after a woman delivered her first child. Most victims underwent FGM/C before their first birthday. In 2014 UNICEF reported the highest prevalence among women 15 to 49 years of age was in the Southwest (approximately 51 to 80 percent), followed by the Southeast and South (approximately 26 to 50 percent), and on a smaller scale in the North.

[...] Federal law criminalizes female circumcision or genital mutilation, but the federal government took no legal action to curb the practice [...] The Ministry of Health, women’s groups, and many NGOs sponsored public awareness projects to educate communities about the health hazards of FGM/C. Underfunding and logistical obstacles limited their contact with health-care workers.”

27. The Home Office has published three separate reports of relevance to FGM in Nigeria in recent years. The United Kingdom Country of Origin Information Report on Nigeria of 14 June 2013 (reissued 3 February 2014) predates the entry into federal law of the VAPP. The Country Information and Guidance Note on Nigeria with regard to “Women fearing gender-based harm or violence” of August 2016 (Version 2.0) sets out the following at paragraph 2.3.7:

“Although against the law and in decline, female genital mutilation (FGM) continues to be practised with differing prevalence rates and type across Nigeria and by ethnic group, religion, residence (urban/rural), state, education and socio-economic class. A 2013 UNICEF report found that 27% of women had undergone FGM, although in the last 20 years the prevalence among adolescent girls has dropped by a half [...]”

28. The Home Office Country Information and Guidance Note on Nigeria with regard to FGM of February 2017 notes in addition to the above at paragraph 2.3.3 that:

“2.3.3 However prevalence varies across all regions, ethnic groups and religions. Women living in urban areas are reported to be almost twice as likely to have undergone FGM, compared with women living in rural areas. There is also variation across different regions of Nigeria. The highest prevalence rates are in the south east and south west of the country (49% and 47.5% respectively). This compares with the north east of the country which has the lowest prevalence (2.9%), with Katsina State having a prevalence of just 0.1%.”

COMPLAINTS

29. The applicant complained under Articles 2 and 3 of the Convention that if she were removed to Nigeria she would be forced to undergo FGM. She further complained that her removal would be in breach of her right to respect for her private life under Article 8 of the Convention. In addition she complained under Article 6 of the Convention that the Court of Appeal did not consider the full objective evidence presented before it, and under Article 14 of the Convention that the proposal by the Secretary of State for the Home Department that her family relocate in Nigeria to avoid the risk of FGM was discriminatory.

THE LAW

A. Alleged violations of Articles 2 and 3 of the Convention

30. The applicant complains that removal to Nigeria would subject her to a real risk of being killed or subjected to torture or inhuman and degrading treatment or punishment. She has invoked Articles 2 and 3 of the Convention which read, in their relevant parts, as follows:

Article 2

“1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.”

Article 3

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

1. The parties’ submissions

31. The Government submitted that the applicant would not face a real risk of treatment in breach of Articles 2 and 3 if she were removed to Nigeria, and that the option of internal relocation was available to her and her family, rendering her safe from the risk of being subjected to FGM. The Government pointed to the findings of the First-tier Tribunal, namely that: the applicant’s mother speaks fluent English, both the applicant’s parents are highly educated and have impressive employment records in Nigeria, both the applicant’s parents oppose FGM, and the principal source of pressure to perform FGM on the applicant is said to arise from the applicant’s parents’ families who would be a significant distance away from the applicant in Abuja.

32. The Government noted that the evidence submitted regarding familial pressure to perform FGM on the applicant before the Tribunal consisted of a social media message and an email dated November and December 2012 respectively. A letter had also been produced, dated December 2012, from the applicant’s paternal great-uncle, reminding the applicant’s mother of traditional rites. No more recent evidence was adduced of communications regarding FGM.

33. The Government submitted that the recent country evidence showed that although the practice of FGM remained prevalent in Nigeria, this prevalence varied between regions and had been decreasing over recent years. The development of the passing of a federal law to criminalise FGM (VAPP) was key evidence of an improving picture (though the Government did not seek to assert that the VAPP is universally or rigorously enforced at present). Further, the Government submitted that there is no significant impediment to internal travel in Nigeria, and the size of the country and population made it extremely unlikely that a person seeking to relocate to avoid a risk of FGM would be found.

34. The applicant maintained her core submissions that she would face a real risk of ill treatment on return to Nigeria. She submitted that there was no objective evidence to suggest that the Nigerian authorities have been enforcing the VAPP with vigilance, and that its existence did not negate the heavy risk of FGM on return. She argued that internal relocation should not be considered as a viable option because Nigeria is a country with a prevailing practice of FGM. Further, she submitted that any internal relocation in Abuja was unlikely to be successful for the following reasons: no parent can offer twenty-four hour protection or surveillance, her relatives could trace her and learn her whereabouts and she could easily be taken back to a region where FGM is practised to be subjected to the procedure.

2. The Court’s assessment

35. The Court recalls that Contracting States have the right, as a matter of well-established international law and subject to their treaty obligations, including the Convention, to control the entry, residence and expulsion of aliens. However, the expulsion of an alien by a Contracting State may give rise to an issue under Article 3, and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person in question, if deported, would face a real risk of being subjected to treatment contrary to Article 3 in the receiving country.

36. It is not disputed that women in Nigeria have traditionally been subjected to FGM. Nor is it disputed that subjecting a child or adult to FGM amounts to treatment proscribed by Article 3 of the Convention (see Collins and Akaziebie v. Sweden (dec.), no. 23944/05, 8 March 2000, Izevbekhai and others v. Ireland (dec.), no. 43408/08, 17 May 2011, § 73, and R.B.A.B. and Others v. the Netherlands, no. 7211/06, 7 June 2016, § 54).

37. The crucial issue to be examined is whether the applicant in the present case would face a real risk of being subjected to FGM on return to Nigeria, and if so, whether her parents could protect her by internally relocating to another part of Nigeria, such as Abuja.

38. The Court has had regard to the legal position on FGM in Nigeria. While the first federal law criminalising the practice of FGM across the country was introduced in May 2015, at present it applies only in the FCT (Abuja). It has been reported that implementation of the law in the 36 States has been uneven and that prosecutions are low. However, the introduction of the federal law nonetheless shows a determination to address the issue of FGM and to offer recourse to affected persons. It is further noted that the federal government publicly opposes FGM and that campaigns have been conducted at state and community level through the Ministry of Health and media warnings against the practice. There are indications from the country evidence available that the practice of FGM is lower in the FCT than in the southern zones of the country, as well as among the children of more highly educated mothers.

39. The Court has also had regard to the personal circumstances of the applicant, as examined by the domestic courts. It is acknowledged that the credibility of the applicant’s mother’s account was generally accepted by the domestic authorities. It is noted that the applicant’s mother relied on the fact that her elder daughter was subjected to FGM without her consent in 2011, as well as several messages received via social media/email/letter in late 2012, to substantiate her claim that the applicant faces a real risk of being subject to FGM upon return. Before this Court, the applicant did not rely on her arguments made before the domestic courts that she has low blood pressure or that twins are routinely sacrificed in Abuja.

40. The submission of the Government that it is open to the applicant and her family to internally relocate to Abuja has been considered. In this respect, the Court recalls the case of M.Y.H. and Others v. Sweden, no. 50859/10, § 62, 27 June 2013, in which judgment it noted that Article 3 does not, as such, preclude Contracting States from placing reliance on the existence of an internal flight or relocation alternative in their assessment of an individual’s claim that a return to the country of origin would expose him or her to a real risk of being subjected to treatment proscribed by that provision. However, the Court noted that reliance on such an alternative does not affect the responsibility of the expelling Contracting State to ensure that the applicant is not, as a result of its decision to expel, exposed to treatment contrary to Article 3. Therefore, as a precondition of relying on an internal flight or relocation alternative, certain guarantees have to be in place: the person to be expelled must be able to travel to the area concerned, gain admittance and settle there, failing which an issue under Article 3 may arise, the more so if in the absence of such guarantees there is a possibility of his or her ending up in a part of the country of origin where there is a real risk of ill‑treatment (see Sufi and Elmi v. the United Kingdom, nos. 8319/07 and 11449/07, § 266, 28 June 2011).

41. In its consideration, the domestic court recalled that Abuja is located in the FCT where the federal law criminalising FGM (VAPP) applies, which is a protective factor for the applicant. Abuja is located 742 km away from the applicant’s father’s family in/near Lagos, from whom the principal familial pressure to subject the applicant to FGM is claimed to emanate. With reference to the objective country information the Court notes that Nigerians enjoy the freedom to move within the country, save to the extent that security concerns in some areas have led to restrictions on temporary grounds (which would not appear to affect the ability of the applicant to move to Abuja). The Court finds no reason to doubt the conclusion of the domestic courts that given the size and population of Nigeria, the prospect of the applicant’s location being rediscovered by family members is speculative. The Court notes as significant the finding of the domestic courts that there had not been any express familial pressure to subject the applicant to FGM since December 2012, some five years ago. Further, the Court recalls that the applicant’s parents are well-educated with good employment records in Nigeria whose prospects of a successful relocation to Abuja were considered by the domestic courts to be positive. Finally, it is recalled that the applicant’s parents are supportive of each other in their joint opposition to FGM being carried out on their daughter.

42. These factors, which were noted by the domestic courts, point towards the viability of internal relocation for the family and the resultant alleviation of risk of FGM for the applicant in all the circumstances. There is no reason for the Court to disagree with the conclusion of the domestic courts that the applicant would not face a real risk of irreversible harm by way of FGM on return to Nigeria in the circumstances.

43. As to the applicant’s mother’s submission that it would be extremely difficult for the family to relocate to Abuja, the Court reiterates that the fact that the applicant’s family’s circumstances in Abuja, Nigeria would be less favourable than in the United Kingdom cannot be regarded as decisive from the point of view of Article 3 (see Collins and Akaziebie v. Sweden (dec.), no. 23944/05, 8 March 2000, Bensaid v. the United Kingdom, no. 44599/98, § 38, ECHR 2001‑I).

44. The Court finds that the applicant has failed to substantiate that she would face a real risk of being subjected to FGM upon returning to Nigeria given the option open to her family of internal relocation to Abuja. The complaint is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must therefore be rejected pursuant to Article 35 § 4 of the Convention. The complaint under Article 2 adds nothing material to the consideration under Article 3.

B. Alleged violation of Article 8 of the Convention

45. The applicant complains under Article 8 of the Convention that her removal (and that of her family) to Nigeria would violate her right to private and family life because her health and stability will be at risk upon return. Article 8 provides as follows:

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

46. The Court notes the finding of the domestic court that the applicant and her family would be returned to Nigeria as a family unit, and that the only other family links in the United Kingdom consist of a ‘far distant uncle’ with whom the family kept sporadic contact. Further, the Court recalls that the domestic court concluded that while a ‘limited private life’ had been developed by the applicant’s mother and her family in the United Kingdom who had come for the temporary purpose of study, removal would not be a disproportionate breach of that private life. It was considered that the best interests of her minor children (including the applicant) were to live with and be brought up by their parents.

47. In the circumstances, the Court finds no reason to disagree with these conclusions. With respect to the bodily integrity of the applicant, it is reiterated that the applicant has failed to substantiate that there is a real risk she will be subjected to FGM upon return. Accordingly, the complaint is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must therefore be rejected pursuant to Article 35 § 4 of the Convention.

C. Alleged violations of Articles 6 and 14 of the Convention

48. The applicant complained under Article 6 about the domestic appeals procedure, arguing that the Court of Appeal did not give adequate consideration to the full objective evidence before it when making its decision. However, decisions regarding the entry, stay and deportation of aliens do not concern the determination of an applicant’s civil rights or obligations or of a criminal charge against him, within the meaning of Article 6 § 1 of the Convention (Maaouia v. France [GC], no. 39652/98 §§ 38 and 40, ECHR 2000-X). The complaint is therefore incompatible ratione materiae with the provisions of the Convention, within the meaning of Article 35 § 3.

49. Finally, the applicant complained that the fact that the United Kingdom Government had proposed that internal relocation would mitigate the risk of FGM was discriminatory. No specific reasoning on the issue was submitted to the Court and as such has failed to demonstrate that she has been treated in a discriminatory manner with regard to her enjoyment of the rights and freedoms set forth in the Convention. It follows that the complaint is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must therefore be rejected pursuant to Article 35 § 4 of the Convention.

D. The interim measure

50. In view of the above conclusions, it is appropriate to lift the interim measure indicated under Rule 39 of the Rules of Court.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 5 April 2018.

              Renata DegenerKristina Pardalos
              Deputy RegistrarPresident

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