ECtHR - R.B.A.B. and Others v. The Netherlands, no. 7211/06, 7 June 2016

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Country of Applicant: 
Sudan
Date of Decision: 
07-06-2016
Citation: 
Application no. 7211/06
Court Name: 
European Court of Human Rights Third Section
Headnote: 

The return of a third country national woman or girl to a country where female genital mutilation is traditionally practised is not a breach of Art. 3 of the Convention where her family (including her possible husband) has the will and the possibility to ensure that she will not be subjected to that practice. 

Facts: 

The applicants were five Sudanese nationals:  a married couple, Mrs R.B.A.B. and Mr. H.S., their two daughters, and their son.

In April 2001, the applicants entered the Netherlands.

Both in 2001 and 2003, Mrs R.B.A.B. and Mr. H.S – and the former also on behalf of her daughters (X and Y), and son (Z) - filed an asylum request based on Mr. H.S.’s alleged participation in the opposition movement “M”. Both times their request was refused by the competent Minister. The first application was considered to be based on vague allegations and therefore lacking credibility; the second application was not based on newly emerged facts or altered circumstances as required by domestic law. Following the first refusal, the applicants also lodged an appeal before the Regional Court which was declared inadmissible.

In June 2005,  Mrs R.B.A.B. and Mr. H.S – and the former also on behalf of the other applicants- filed a third asylum request based on the claim that, if they had been sent back to Sudan, their daughters X and Y  would  be  subjected  to  female  genital  mutilation  (“FGM”),  contrary  to Article 3 of the Convention, due to tribal and social pressure. The Minister ‘s refusal was appealed by the applicants before the Regional Court, whose decision was subsequently appealed by the Ministry before the Council of State, which finally rejected the applicants’ appeal against the Ministry’s refusal.

In September 2015, the third applicant, Ms X, was granted a Netherlands residence permit for the purpose of remaining with her partner with whom she had already had two children. In  the same month she  informed  the  Court  that  she  did  not  wish  to maintain the application in so far as it concerned her.

In 2012 and 2013, the fourth and fifth applicants, Ms Y. and Mr. Z, asked for a residence permit  based on the risk of being subjected to FGM, and on his minor age respectively. Nevertheless their requests were rejected.  

Decision & Reasoning: 

The Court found that that the third applicant could be regarded as no longer wishing to pursue her application. Consequently,  in accordance with Art. 37.1(a) of the Convention, the Court struck the case out of the list to the extent that it concerned the third applicant.

On the contrary, the Court found admissible the application as brought by the first, second, fourth and fifth applicants; and analysed the merits of these.

By way of premise, the Court recalled that the right to political asylum and the right to a residence permit are not, as such, guaranteed by the Convention. Moreover, the assessment of the correct application of the 1951 Refugee Convention is outside its jurisdiction (arts. 19, 32.1). However, the Court also recalled that expulsion by a contracting State may engage the responsibility of that State under art. 3 of the Convention where  substantial  grounds  have  been  shown  for  believing  that  the  person concerned,  if  deported,  faces  a  real  risk  of  being  subjected  to  ill-treatment in the receiving country from intentionally inflicted acts  by  the  public  authorities  there,  or  from  non-State  bodies  when  the authorities  are  unable  to  afford  the  applicant  appropriate  protection.

The Court acknowledged that subjecting a person to Female Genital Mutilation (FGM) certainly amounts to treatment  proscribed  by  Article  3  of  the  Convention  (Collins  and  Akaziebie  v.  Sweden; Izevbekhai and others v. Ireland); and it found that the crucial issue for the purpose of assessing the applicants’ complaints is whether  the  fourth  applicant  would  face  a  real  risk  of  being  subjected  to FGM upon her return to Sudan. Indeed, the allegations of the first, second and fifth applicants were considered to be all contingent on the risks to the fourth applicant.

The Court found it well-established that in Sudan there is the tradition to subject girls and women to FGM.  Nonetheless, through the analysis of national and international reports, the Court found no real  risk  of   the fourth applicant being subjected  to  FGM  at  the  instigation  of  persons  who  are  not  her family members. In this respect, the Court observed that a law was passed prohibiting FGM in the Sudan province where the applicants came from (South Kordofan); and that apart from the third applicant, it is likely that all the other applicants would be removed together to Sudan since they had not received a residence permit in the Netherlands. Therefore, the third applicant’s family would be in a position to ensure that she is not subjected to FGM. In light of the foregoing, the Court held that the removal of the first, second, fourth and fifth applicants would not give rise to a violation of Art. 3 of the Convention. 

Outcome: 

The Court decided to strike the application out of its list of cases in accordance with Article  37  §  1  (a)  of  the  Convention  in  so  far  as  it  concerns  the complaints brought by the third applicant.

The Court held that there would be no violation of Article 3 of the Convention in the event of the removal of the first, second, fourth and fifth applicants to Sudan.

Case Law Cited: 

ECtHR - I. v. the Netherlands (dec.), no. 24147/11

ECtHR - Marguš v. Croatia [GC], no. 4455/10

ECtHR - Collins and Akaziebe v Sweden (Application no. 23944/05)

ECtHR - Izevbekhai and Others v Ireland (Application no. 43408/08)

ECtHR - N v United Kingdom (Application no. 26565/05)
Other sources cited: 

- Maputo Protocol on 30

- Rule 77 §§ 2 and 3 of the Rules of Court, June 2008

- Article 31 § 3 (c) of the 1969 Vienna  Convention

- The  official  report  (ambtsbericht)  on  Sudan  released  by  the Netherlands Minister of Foreign Affairs in April 2010

- The  country  assessment  report  on  Sudan  drawn  up  by  the Netherlands Minister of Foreign Affairs in July 2015

- The  World  Health  Organisation, Fact  Sheet  on  FGM  (as  updated  in February 2016)

- “Eliminating Female Genital Mutilation:  An  Interagency  Statement”,  2008,  authored  by  various international organisations including the WHO, the UN High Commissioner for  Refugees  (UNHCR),  the  UN  Children’s  Fund  (UNICEF)  and  the  UN Development Fund for Women (UNIFEM))

- The  United  Kingdom  Home  Office  Country  of  Origin  Information, Report on Sudan of 16 April 2010

- The Operational Guidance Note on Sudan released  in  August  2012  by  the  United  Kingdom  Home  Office

- “Joint Evaluation of the UNFPA-UNICEF Joint Programme on FGM/C: Accelerating Change 2008–2012” in respect of Sudan, published in July 2013

- The  United  States  Department  of  State’s  “Country  Reports  on Human Rights Practices 2014”, published on 25 June 2015

 

Authentic Language: 
English
State Party: 
Netherlands