(Application no. 23944/05)
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Year: 2007

The 1st Applicant sought asylum in Sweden, having emigrated from Nigeria. The 2nd Applicant was born 3months after the 1st Applicant arrived in Sweden. The 1st Applicant applied for asylum citing that she was from Delta State, Nigeria where FGM was performed on women when they gave birth. She contended that neither her parents nor her husband would protect her from this practice. She was therefore afraid of this inhuman practice and sought to protect her child and herself. She paid 1000$ to a smuggler, flew to Europe then took a train to Sweden. Without any travel documents, the Migration Board rejected her Application for Asylum, refugee status or a residence permit, noting that FGM was not included as a ground for Asylum and that FGM was outlawed in several states in Nigeria.

She appealed. The Appeals board dismissed her Application and adopted the Board’s reasoning. The 1st Applicant then lodged several other new Applications with the Appeals Board, in which she claimed she had no family in Nigeria and had an ultra sound when she was 6 months pregnant, when she confirmed that she was expecting a girls and therefore resolved to protect her. The veracity and consistency of her assertions was put to question.

The Court heard evidence that FGM was outlawed in several States in Nigeria and that the country’s practice of the vice had remarkably declined.

The Court maintained that 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 but that this also placed an obligation upon State parties not to deport aliens to receiving countries where they are bound to face torture, inhuman or degrading treatment.

The Court in deciding whether the applicants would face a real and concrete risk of being subjected to FGM upon their return to Nigeria, held that the first applicant, having demonstrated strength and independence, can reasonably protect the second applicant from FGM, if not in Delta State, her home state, then at least in one of the other states in Nigeria where FGM is prohibited by law and is less widely spread.

The Court also held that just because the Applicants’ circumstances in Nigeria would be less favorable than in Sweden could not  be regarded as decisive from the point of view of Article 3 of the Convention.

The Application was declared inadmissible.