In a landmark decision for the Greek judicial system, the Athens Administrative Appeals Court placed a temporary hold on the expulsion of a Kenyan woman due to a threat of being subjected to forced genital mutilation (FGM) and her three children tortured if she returned to her country.
It is the first time a Greek court uses the rules of the 1951 Geneva Convention to grant protection due to an FGM threat (decision 419/2014). In a 2009 note by the UN High Commissioner for Refugees, FGM was included as a legitimate factor for granting asylum to a woman and any of her children under such a threat.
The Kenyan national arrived in Greece on September 3, 2002 in order to get financial help for a foot operation on one of her children, according to her. She applied for international protection under the Convention at the regional asylum office in Attica for herself and her children, aged 13, 5 and 3 years old, with the youngest being a legitimate child of an American citizen.
In her application, she said she did not want to return to her country because she belongs to the Kikuyu tribe which practices FGM on all females, and she could also be subjected to the same under the Mungiki organization, which is active in many Kenyan areas. The regional asylum office rejected her application on the grounds that she and her children did not meet the Geneva Convention’s classification conditions for refugee status.
The woman then applied to a relevant Justice Ministry committee and asked for a review of her case in order to be issued international protection. The committee again rejected her application on the grounds that she did not submit “incontrovertible evidence proving that her fear due to the threat of being subjected to FGM by the Mungiki organization can be seen as justifiable and substantiated on objective facts, in order to conclude that there is immediate and unavoidable threat to her life or physical safety if she returns to her country of origin.”
The Ministry’s committee also concluded that “there is no provable danger that upon her return to her country she would undergo severe harm consisting of a death sentence or torture, as there are no conditions of international or domestic armed conflict in Kenya and especially Nairobi (her last recorded residence) that would lead to the conjecture of serious injury due to indiscriminately practiced violence.”
It concluded that the woman and her children did not meet conditions related to refugee or additional protection status according to standing laws, but it said she fulfilled all four conditions allowing residence permits to be issued for humanitarian reasons. It thus referred the case to the administrative court.
The woman took recourse to Greek courts on the grounds that if she and her children returned to Kenya they would be tortured or treated inhumanely and that her children would be either conscripted into criminal organizations, abducted by them or be persecuted – in the youngest’s case – for being a legitimate child of an American citizen.
The court accepted her plea on a temporary basis and said their return to Kenya by Greek authorities could harm them irreparably, exposing them to physical abuse. It suspended the Justice Ministry committee’s decision until the court could give a final ruling and ordered state authorities to abstain from any act that would result in the forced exit and repatriation of the woman and her children to Kenya.
The court also ordered that if the special document certifying she had applied for asylum has been removed by authorities, it must be restored and extended in date if expired.