Collins and Akaziebie v. Sweden
Sweden, European Court of Human Rights

Collins and Akaziebie v. Sweden

DATE 08-03-2007DOWNLOAD LEGAL DECISION

Judges:

Bostjan Zupancic

Bostjan Zupancic

Jonh Hedigan

Jonh Hedigan

Elisabet Fura

Elisabet Fura

Alvina Gyulumyan

Alvina Gyulumyan

Egbert Myjer

Egbert Myjer

Ineta Ziemele

Ineta Ziemele

Isabelle Berro-Lefèvre

Isabelle Berro-Lefèvre

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Topics:

Asylum and Non-Refoulement Forced and Non-Consensual Practices

Related standards:

European Convention on Human Rights Article 3

RELATED STANDARDS

European Convention on Human Rights Article 3

No one shall be subjected to torture or to inhuman or degrading treatment or punishment.
Foreigners Act 2005 (Switzerland) Chapter 3. Visas. Section 2

RELATED STANDARDS

Foreigners Act 2005 (Switzerland) Chapter 3. Visas. Section 2

A visa for entry and a stay of a maximum of three months that is granted under Section 1 shall be issued as a uniform visa in accordance with the regulations in the Schengen Convention. A uniform visa is valid for entry and stay in the Schengen States as indicated by the visa. If, on an overall assessment, it appears probable that the intention of the stay is other than the stated intention or that the alien will not leave Sweden or the territory of the Schengen States after the expiry of the visa period, a uniform visa must not be granted.

WHY IT MATTERS:

The decisions of the Courts are binding on the Member States who are invited to inform the Committee of Ministers of the steps taken to comply with the State's legal obligation to abide by the judgment. 

Although the case was found inadmissible it is important in recognizing that FGM clearly falls within Article 3 and where there is a well founded fear or risk of FGM then the Court will find that the persons may not be sent back. 

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. 

The first applicant, Ms Emily Collins, is the mother of the second applicant Ms. Ashley Akaziebie, born in September 2002. They are both Nigerian nationals who requested asylum in Sweden. The first applicant entered Sweden in July 2002 and applied for asylum. She was not in possession of any travel documents or identity papers. In September of the same year, her daughter was born. She alleged that her sister had died in 2001 following childbirth combined with complications arising from female genital mutilation (FGM). When the first applicant became pregnant she became scared that she would also be forced to undergo FGM. She claimed that if she went to another region of Nigeria that she and her child would be killed in a religious ceremony. She felt that neither her husband nor her family would be able to protect her and therefore she decided to flee the country and paid a smuggler, who brought her to Sweden. On 13th June 2003, the Migration Board rejected the applications for asylum, refugee status or a residence permit. First, it noted that FGM was not included as a ground for asylum under the Aliens act. Secondly, it stated that FGM was prohibited by law in Nigeria and that this was observed in at least six states. The applicants appealed the decision to the Aliens Appeals Board, stating that FGM persisted despite the laws. They further stated that those who carried out the operations were never prosecuted or punished. This was rejected. The applicant lodged three further applications. In the third application in June 2005, the first applicant submitted that in fact she had already been subjected to FGM. She maintained, however, that she would not be able to protect her daughter from suffering the same fate on returning to Nigeria. The appeals board rejected the application. The applicant failed to respond to the many questions presented by the Board and in 2006 she stated that it was through a slip of the pen that she had previously provided the wrong birth date. The applicant complained under Article 3 that if she were expelled from Sweden that here was a real risk of subjection to FGM and submitted an application to the European Court of Human Rights.

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.

European Court of Human Rights.
European Court of Human Rights.
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