FIFTH SECTION
DECISION
Application no. 35745/11
R.W. and Others
against Sweden
The European Court of Human Rights (Fifth Section), sitting on 10 April 2012 as a Chamber composed of:
Dean Spielmann, President,
Elisabet Fura,
Boštjan M. Zupančič,
Ann Power-Forde,
Ganna Yudkivska,
Angelika Nußberger,
André Potocki, judges,
and Claudia Westerdiek, Section Registrar,
Having regard to the above application lodged on 9 June 2011,
Having deliberated, decides as follows:
THE FACTS
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.
A. The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
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.
B. Relevant domestic law
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).
C. Relevant country information
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.”
COMPLAINTS
The applicants complain under Articles 2, 3, 5 and 8 of the Convention that they would be killed or subjected to female genital mutilation and ill‑treatment if returned to Kenya.
THE LAW
A. Articles 2 and 3 of the Convention
The applicants claim that deportation to Kenya would subject them to a real risk of being killed or subjected to torture or inhuman and degrading treatment or punishment. They have 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. General principles
The Court finds that the applicants’ complaints under Articles 2 and 3 of the Convention are indissociable and it will therefore examine them together.
The Contracting States have the right as a matter of international law and subject to their treaty obligations, including the Convention, to control the entry, residence and expulsion of aliens (see, inter alia, Üner v. the Netherlands [GC], no. 46410/99, § 54, ECHR 2006‑XII; Abdulaziz, Cabales and Balkandali v. the United Kingdom, 28 May 1985, § 67, Series A no. 94; and Boujlifa v. France, 21 October 1997, § 42, Reports of Judgments and Decisions 1997‑VI).
However, expulsion 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 concerned, if deported, faces a real risk of being subjected to treatment contrary to Article 3. In such a case, Article 3 implies an obligation not to deport the person in question to that country (Saadi v. Italy [GC], no. 37201/06, § 125, 28 February 2008).
The assessment of whether there are substantial grounds for believing that the applicant faces such a real risk inevitably requires that the Court assess the conditions in the receiving country against the standards of Article 3 of the Convention (Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, § 67, ECHR 2005-I). These standards imply that the ill-treatment the applicant alleges he will face if returned must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this is relative, depending on all the circumstances of the case (Hilal v. the United Kingdom, no. 45276/99, § 60, ECHR 2001-II). Owing to the absolute character of the right guaranteed, Article 3 of the Convention may also apply where the danger emanates from persons or groups of persons who are not public officials. However, it must be shown that the risk is real and that the authorities of the receiving State are not able to obviate the risk by providing appropriate protection (H.L.R. v. France, judgment of 29 April 1997, Reports 1997-III, § 40).
The assessment of the existence of a real risk must necessarily be a rigorous one (see Chahal v. the United Kingdom, judgment of 15 November 1996, Reports 1996-V, § 96; and Saadi v. Italy, cited above, § 128). It is in principle for the applicant to adduce evidence capable of proving that there are substantial grounds for believing that, if the measure complained of were to be implemented, he would be exposed to a real risk of being subjected to treatment contrary to Article 3 (see N. v. Finland, no. 38885/02, § 167, 26 July 2005). The Court acknowledges that, owing to the special situation in which asylum seekers often find themselves, it is frequently necessary to give them the benefit of the doubt when it comes to assessing the credibility of their statements and the documents submitted in support thereof. However, when information is presented which gives strong reasons to question the veracity of an asylum seeker’s submissions, the individual must provide a satisfactory explanation for the alleged discrepancies (see, among other authorities, N. v. Sweden, no. 23505/09, § 53, 20 July 2010 and Collins and Akasiebie v. Sweden (dec.), no. 23944/05, 8 March 2007).
In cases concerning the expulsion of asylum seekers, the Court does not itself examine the actual asylum applications or verify how the States honour their obligations under the Geneva Convention. It must be satisfied, though, that the assessment made by the authorities of the Contracting State is adequate and sufficiently supported by domestic materials as well as by materials originating from other reliable and objective sources such as, for instance, other Contracting or non-Contracting States, agencies of the United Nations and reputable non-governmental organisations (see, NA. v. the United Kingdom, no. 25904/07, § 119, 17 July 2008).
2. Application of these principles to the present case
The Court considers there are no indications that the situation in Kenya is so serious that the return of the applicants thereto would constitute, in itself, a violation of Article 3 of the Convention (see, for example, I.N. v. Sweden (dec.), 1334/09, 15 September 2009 and E.N. v. Sweden (dec.) 15009/09, 8 December 2009).
In the present case, the Court observes from the outset that the asylum claim has been comprehensively considered by the Swedish authorities who have provided relevant and adequate reasons for their decision to reject the claim. The domestic authorities have questioned the applicants’ credibility and considered the story in essential parts to be vague and inconsistent. The Court agrees that there are elements of the case which tend to indicate that the applicants’ alleged fear of return to Kenya is neither genuine nor objectively well-founded. Such elements include the fact that the first applicant did not present a passport or any other identification documents before the migration authority, despite her claim that she had travelled by plane from Uganda to Sweden via another, unknown, European country. Furthermore, she failed to request relevant documents from the authorities in Kenya, despite the fact that she allegedly had no problems with the authorities and was still in contact with her mother in Kenya. Furthermore, the applicant failed to explain the discrepancies in her story.
The Court reiterates that, as a general principle, the national authorities are best placed to determine credibility issues as they have the opportunity to see, hear and assess the demeanour of the individual concerned. In the present case the Court finds no reason to deviate from the domestic authorities’ assessment of the applicants’ credibility.
Even independently of the credibility issue, the Court is not convinced that the applicants would be at real risk if returned to Kenya. The applicant’s own perception that female genital mutilation is not performed among her people implies that she would not be at risk of being mutilated by her own family or clan.
With regard to the alleged threat from the first applicant’s boyfriend, the Court notes that the first applicant has given a vague description of an alleged ritual, but she has not been able to make plausible that she has been either initiated or married to her boyfriend according to Mungiki traditions through this ritual. Additionally, the first applicant has failed to substantiate that she is of such interest to the Mungiki group that she is at risk throughout Kenya, especially in the light of the fact that she has not claimed to have been sought for by her boyfriend. There is no indication that the first applicant or her family in Kenya have been approached or contacted by the boyfriend or any other members of the Mungiki group since the first applicant left Kenya in 2008.
It follows from recent country information, set out above, that the authorities in Kenya take active measures to prevent FGM and to take action against suspected Mungiki members. Additionally, there are a number of churches, NGOs and other organisations actively working to protect women and girls from FGM. Considering that the alleged risk refers to criminal acts committed by individuals, it would seem feasible in the applicant’s case to seek protection from the domestic authorities and her relatives in Kenya. As noted by the Migration Court, there is no indication that the domestic authorities would be unwilling or unable to protect the applicant. Furthermore, as the first applicant has seemingly not stayed in contact with her former boyfriend, he would not know of the applicants’ return to Kenya. In any event, the Court considers that there seems to be a possibility for the applicants to relocate to another area of Kenya, where protection can be provided.
With regard to the second and third applicants, their asylum request essentially refers to the situation of the first applicant. The Court notes additionally, with regard to their individual risk of being subjected to FGM, that such practice is prohibited in Kenya on females under 18 years old.
The domestic authorities did not examine whether the second and third applicants were at risk due to having been born out of wedlock. However, the claim in this respect is very vague, and does not seem to be based on anything other than the mother’s own speculations. Similarly, the claim that she would be regarded as a prostitute is based on speculation and is not sufficient to meet the high threshold of Article 3. She has claimed to have lost contact with her mother, but has not explained why. She has not claimed that her own family will refuse to accept her or the children due to her extramarital relationship.
For the foregoing reasons, the Court considers that the applicants have failed to demonstrate a real risk of ill-treatment in violation of Articles 2 or 3 of the Convention if returned to Kenya.
It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and must be rejected pursuant to Article 35 § 4 of the Convention.
B. Articles 5 and 8 of the Convention
Turning to the complaints under Articles 5 and 8, the applicants have not submitted or referred to any specific reasoning on these issues. In these circumstances, the applicants have failed to demonstrate that their return to Kenya would be in violation of Article 5 or 8 of the Convention.
It follows that these complaints are manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and must be rejected pursuant to Article 35 § 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Claudia WesterdiekDean Spielmann Registrar President
Full & Egal Universal Law Academy