Germany - Administrative Court Aachen, 10 May 2010, 2 K 562/07.A

Country of Decision:
Country of Applicant:
Date of Decision:
10-05-2010
Citation:
2 K 562/07.A
Additional Citation:
asyl.net/M17141
Court Name:
Administrative Court Aachen
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Headnote: 
  1. In principle, a threat of female genital mutilation (FGM) has to be considered as political persecution according to Section 60 (1) Residence Act.
  2. In Nigeria, FGM is still widespread in all known forms. For the Edo ethnic group, it is usually performed between seven and fourteen days after birth.
  3. The number of circumcisions performed (among the Edo ethnic group) during puberty has decreased significantly in recent years and circumcisions in adulthood are no longer performed, or they are only carried out in a small number of cases.

In the present case the court found that it was unlikely that the applicant was at risk of FGM considering her age (five years) and the fact that both her parents opposed the practice. Further, the requirements of ‘Prohibition of deportation’ (Section 60 (2) through (7) of the Residence Act) were not established; it was considered unlikely that the applicant would actually return to Nigeria as her mother had residency in Germany.

Facts: 

The applicant, born in 2005 in Germany, is a Nigerian citizen. Her mother, also a Nigerian citizen and member of the Edo ethnic group, came to Germany in 2004.  The applicant’s mother is the holder of a residence permit as she is the mother of another child, born in 2008, who holds German citizenship. The applicant’s father, also a Nigerian citizen, entered Germany in 1990 and applied for asylum. Because he was married to a German woman, he received a residence permit in 1993. They were divorced in 1998. Currently, he has “tolerated status”.

After an application for a residence permit was rejected, the applicant applied for refugee status. Her mother, in her name, argued that the applicant, in case of return to Nigeria, would be at risk of being circumcised by force. The application was rejected. The applicant appealed this decision.

Decision & Reasoning: 

The court stated:

A threat of female genital mutilation (FGM) in the country of origin is in principle political persecution according to Section 60 (1) of the Residence Act. Specifically, it results in the exclusion of the person concerned from the general peaceful order of the State. In this respect, one cannot argue that FGM is performed for the purpose of integration and inclusion of the girls and women concerned in a particular society and that prohibiting the exclusion of uncircumcised women, threatening their survival, does not constitute political persecution (see Administrative Court Münster, 15 March 2010, 11 K 413/09.A). Circumcision aims at targeting the political beliefs of the persons concerned, who might object, subjecting them to the tradition and, while disregarding their right to self-determination, making them mutilated subjects.

Furthermore, Section 60 (1) sentence (3) of the Residence Act clarifies that, when a person’s life, freedom from bodily harm or liberty is threatened solely on account of his/her sex, this may also constitute persecution due to membership of a particular social group. Sentence 3 of this provision is meant to include circumstances exactly like a threat of female genital mutilation. Section 60 (1) sentence ( 4) (c) of the Residence Act expands the scope of protection to the persecution by non-State actors, if it can be demonstrated that the State, parties or organisations are unwilling or unable to provide protection against persecution, unless there is an internal protection alternative.

It cannot be established with a reasonable degree of probability that the applicant, in case of return to Nigeria, is at risk of political persecution in the form of FGM.

Female genital mutilation, in all its known forms, is still widespread in Nigeria. According to traditional belief, female genital mutilation serves fertility, controls female sexuality, prevents promiscuity and secures women’s economic future by marriage. Considering the fact that in some cases only circumcised women are considered “marriageable”, the pressure on the persons concerned, and on their parents, to perform a circumcision might be considerable. In order to achieve “eligibility for marriage”, female members of a family in particular endeavour to have circumcision performed and sometimes it even happens against the parents’ will. The age of circumcision may vary between shortly after birth up to adulthood and depends on the particular ethnic group. A general – nationwide – legislation prohibiting circumcision does not exist; prosecution is possible only under the general criminal law. Some federal states, including Edo-State, have enacted laws prohibiting FGM; however, criminal procedures have not yet become known.

Regarding the Edo ethnic group, the age of circumcision, according to the court’s information, is between the seventh and the fourteenth day after birth. The applicant, however, is already five years old. Although the mother of the applicant maintains that FGM can be performed even later, and claims that she herself was circumcised at the age of twelve, these claims are doubtful.  Furthermore, according to the information at hand, the number of circumcisions during puberty has decreased significantly in the last couple of years and circumcisions in adulthood are no longer performed or only performed in a small number of cases. Finally, it is not sufficiently likely that a circumcision would be performed, since a circumcision of a minor girl in principle requires the parents’ consent and in the present case both parents have opposed the applicant’s circumcision.

Obstacles to deportation under Section 60 (2) through (7) of the Residence Act, as far as they have to be taken into consideration in an asylum case, do not exist in the present case. Given the actual circumstances of the family and their legal situation regarding their right of residence, one cannot assume, in the context of a risk assessment that the applicant will return with one of her parents, or together with both parents, to Nigeria. Her parents are separated; her mother has a residence permit. The father has access rights only, therefore one cannot assume that he will return to Nigeria with the applicant.

Outcome: 

The appeal was dismissed.

Subsequent Proceedings : 

Unknown

Case Law Cited: 

Germany - Administrative Court Gelsenkirchen, 14 March 2006, 9a K4180/05