WRITTEN QUESTION E-0708/03

by Gianfranco Dell'Alba (NI) to the Commission

(10 March 2003)

Subject: Right of asylum for women threatened with female genital mutilation

Is the Commission aware that over the last few days in Kenya a hundred or so girls and young women have sought refuge in a church in order to avoid the risk of having to undergo genital mutilation an ancestral practice which is still carried out in at least 28 African countries and which is inflicted each year on over two million girls?

In the light of Parliament's resolution of 20 September 2001(1) and the international STOP FGM appeal which has been signed by thousands of prominent figures and ordinary people throughout the world and which calls, amongst other things, for the right of asylum to be granted to women who are threatened with mutilation (a practice which may be regarded as an extremely serious infringement of the most basic human rights):

- does the Commission not think that, given the particular situation of the 100 Kenyan women, the EU should as a matter of urgency include such a situation amongst those in respect of which asylum within the EU Member States should be granted?

- what action has the Commission taken (or does it intend to take) in response to this situation?

(1) OJ C 77 E, 28.3.2002, p. 126.

Answer given by Mr Vitorino on behalf of the Commission

(28 April 2003)

In the field of asylum, there are no Community provisions in place based on Article 63 of the EC Treaty related to the situation described in the question. In particular, the proposal for a Directive on minimum standards for the qualification as a refugee or as a person otherwise in need of international protection(1) is still under negotiation in the Council. At present there is, therefore, no Community law in place that would enable the Commission to make inquiries about individual asylum and immigration cases and, therefore, there is no power to intervene on that basis with the Member States.

Article 7(d) of the Commission's proposal states that in case of women applicants, account shall be taken of the fact that persecution, within the meaning of the Geneva Convention, may be effected through sexual violence or other gender-specific means. It should be borne in mind that in many cases gender-specific violence is purely a form of persecution and any of the persecution grounds as mentioned in the 1951 Refugee Convention may be applicable. However, sexual violence to refugee women, such as Female Genital Mutilation (FGM), can also be inflicted for the sole reason of their gender. In such situations, the persecution ground membership of a particular social group could apply.

As regards this particular ground, Article 12(d) of the proposal sets out rules for interpretation. Its applicability will depend on particular circumstances and contexts in the country of origin and the characteristics of the persecution and the persecuted. The rules foresee the inclusion of groups of individuals who are treated as inferior or as second class in the eyes of the law, which thereby condones persecution at the hands of private individuals or other non-state actors, or where the State uses the law in a discriminatory manner and refuses to invoke the law to protect that group. This may be the case in situations where women are the victims of domestic violence, including sexual violence and mutilations, in those States where they are unable to obtain effective protection against such abuse because of their gender or social status as married women, daughters, widows or sisters, in that society.

The Honourable Member is, however, advised that the Council has not yet adopted the above Directive. In Kenya, FGM was formally banned for girls under 17 after

the Children's Act was adopted by the Parliament (2001). However, the Commission believes that confronting the complex and culturally entrenched beliefs that underlie FGM is an undertaking that must involve not only public repression, but also education and public awareness in the country.

In this context the Commission has already brought up the question of women's rights with the Government of Kenya including FGM issues. The Commission is also assisting civil society initiatives with regard to women rights and women's involvement in political decision making while supporting a specific project focussing on FGM prevention in the Kisii district.

The Commission will continue in the future to support adequate measures to ensure progress on women's rights and the eradication of FGM practices. In particular, the Union is proposing to reinforce political dialogue with the newly elected Kenyan Government focussing, inter alia, on human rights including gender issues. The Commission will also continue to bring up human rights issues, including gender issues, in the appropriate forums, including in the context of the Community-dialogue with Non-State Actors who monitor and enforce women's rights.

For further details please refer to the Commission's answer given to Written Question E-0519/03 by Mrs Smet(2) regarding women's rights in Kenya.

(1) OJ C 51 E, 26.2.2002.

(2) OJ C 33 E, 6.2.2004, p. 47.