Hungary – Metropolitan Court, 16 January 2009, L.M.N. v. Office of Immigration and Nationality, 17.K.32.826/2007/15

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Headnote: 

The Kenyan applicant was a potential victim of female genital mutilation (FGM) and she faced forced marriage upon return. The Court stated that even if there was a risk of persecution in case of a return to the country of origin, the applicant could reasonably be expected to relocate internally as it was feasible in the circumstances.

Facts: 

The Office of Immigration and Nationality (OIN) wrongly claimed that the applicant had already undergone FGM and on this finding dismissed her asylum claim as not credible. The application was rejected based on the argument that the applicant could not substantiate the risk of personal persecution or the fact that she would be a victim of harassment in case of returning to Kenya. The OIN claimed that the Kenyan government is willing to eliminate the practice of FGM.

Decision & Reasoning: 

In the court proceedings the applicant proved (with a gynaecologist’s expert opinion) that FGM was not yet performed on her. Both the asylum authority and the court accepted that the applicant could be subject to persecution on the ground of membership of a particular social group; however, the Metropolitan Court examined the possibility of internal relocation and actors of protection. The court found that, according to country of origin information submitted by the OIN, there were several national and international centres offering support where women could ask for assistance in order to find protection. The court found it was established that upon return to her country of origin she could receive accommodation, food and support.

Outcome: 

The appeal was dismissed and the decision of the OIN upheld.

Observations/Comments: 

The shortcomings of the judgment may be summarised as follows

- The application of the internal protection alternative is based on non-state actors of protection, whereas the Hungarian Asylum Act does not recognise non-state protection (international organisation and local NGOs offering assistance to victims of FGM). When mainly relying on non-state protection, the sustainability of such an alternative might be questionable.

- The judgment does not take into consideration the vulnerability of a single woman in Africa unwilling to submit herself to tribal and social traditions such as FGM and forced marriage.

-The court failed to examine forced marriage as a Convention ground for persecution.

Other sources cited: 

Article 3, 38 of the Asylum Act (Act no. CXXXIX of 1997 in force until 1 January 2008 in procedures that were started previously).