The first applicant, the mother, and the second applicant her child, both Nigerian nationals sought asylum in Sweden, claiming that they feared being subjected to FGM. They brought their claim under Article 3 of the ECHR which prohibits torture, cruel, inhumane and degrading treatment and prevents states from returning (refouler) a non-national if they are at risk of torture. Although the court found the application to be inadmissible, the Court clearly stated that FGM amounts to ill-treatment under Article 3 of the Convention.
Article 3 The Court first reiterated the general principle that Contracting States have a right, as a matter of international law, to control the entry, residence and expulsion of aliens. However, it also noted that under Article 3, persons could not be sent back where substantial grounds existed for believing that the person would face a real risk of being subjected to torture, or cruel, inhuman and degrading treatment.
The Court then stated that subjecting a woman to female genital mutilation amounted to ill treatment contrary to Article 3 of the Convention. The Court also found that it was not in dispute that women in Nigeria have traditionally been subjected to FGM and to some extent still continue to be forced to undergo the procedure.
The Court noted that legislation had been passed in Delta in 2002, the region from where the applicants came from, criminalising the practice of FGM. The Court also noted that there had been a draft federal bill outlawing FGM before the National Assembly since 2001.
The Court found that although the applicants alleged that 80-90% of all women in Delta State were subjected to FGM, these figures were not substantiated by NGOs and other surveys which placed the figure in 2005 at 19%.
Secondly, the Court considered the credibility of the applicant and agreed with the government that the information presented including change of birth date, the late claim that she had already undergone FGM rather than having a fear of FGM, etc., gave strong reasons to question the veracity of the asylum seeker's submission. The Court recognised however that it is often important to give asylum seekers the benefit of the doubt.
Thirdly, the Court considered the personal situation of the applicant, noting that she had gone to a smuggler rather than going to another region (internal flight alternative) where she could have received support from her family or from the father of the child.
The Court found that the application was inadmissible.