A Nigerian woman who claims her two young daughters are at risk of serious harm from female genital mutilation (FGM) in Nigeria has brought another legal challenge in a bid to prevent the family being deported.
Pamela Izevbekhai and her daughters, Naomi (7) and Jemima (6), have brought judicial review proceedings in the High Court challenging the Minister for Justice, Equity and Law Reform’s refusal to consider their claim for “subsidiary protection” here.
The case opened today before Mr Justice Brian McGovern and continues tomorrow.
The family claim the Minister erred in law by refusing to grant them subsidiary protection on the basis of his finding that new material submitted by them, which was not before him in 2005 when he was considering whether to make deportation orders, was “similar in content” to the information submitted in 2005.
Mel Christle SC, for the family, said the information put before the Minister amounted to new material and the Minister ought to have entertained the family’s application. In failing to do so, the Minister acted irrationally, counsel argued.
He said the material included a statement from a Dr Fiona Hardy, an independent medical practioner who had worked and lived in Nigeria for several years. Dr Hardy’s extensive experience of the practice of FGM clearly showed Ms Izevbekhai’s two children were at risk of serious harm from FGM if they are returned, counsel said.
This evidence was new in the sense that it independently and fully corroborated the family’s claims about the risk to their lives from FGM. Ms Izevbekhai’s first daughter Elizabeth had died at 17 months from blood loss, which the attending doctor described as being possibly the result of female circumcision performed on the baby.
Counsel also referred to a report by Amnesty International stating there were inadequate protections against FGM in Nigeria and there was a serious risk of harm. There were also emails from Irish journalists who had backed up the family’s claims.
The Minister for Justice is opposing the application on grounds the material put before the Minister was no different than that previously submitted.
Counsel said there was no federal law in Nigeria outlawing FGM and, as it was up to individual States there whether they outlawed the practice. While six states had done so, there was “no evidence” of any person ever being prosecuted for carrying out the practice. Internal relocation was also not an option for his clients.
Mr Justice McGovern said he agreed FGM was “barbaric” and “inhumane” and there was evidence it has been carried out on an estimated 30 million Nigerian females but, because it was not carried out by the State, he disagreed with his colleague Mr Justice Liam McKechnie that it was torture.
Mr Christle said, in his view, it was torture and, just because such a practice is not carried out by an organ of a state, it did not mean it was not torture. He said Ms Izevbekhai left Nigeria in January 2005 due to her husband’s family’s active practice of FGM.
The Minister for Justice is opposing the application on grounds that the material put before the Minister was no different than that previously submitted.
Eoin McCullough SC, for the Minister, said Ms Izevbekhai had no substantial grounds for her judicial review. It was their case no new material had been advanced and the Minister had not acted irrationally.
Counsel said the applicants’ claims had already been objectively examined and rejected by the Refugee Appeals Commissioner, the Refugee Appeals Tribunal and High Court.
Ms Izezbekhai went into hiding after the deportation orders were issued in November 2005 but was arrested in Sligo in December 2005 after she emerged to see her daughters, who had been put into care when their mother disappeared. She was detained in Mountjoy jail but freed by court order in January 2006.
A legal challenge to the deportations, grounded on fears about FGM, was dismissed in the High Court last January and Mr Justice Kevin Feeney later refused leave to appeal that decision to the Supreme Court.
The family had previously given a reprieve against their deportation last year following the intervention of the European Court of Human Rights (ECHR).
Last November, Mr Justice John Hedigan refused to grant an injunction stopping the deportations but on the same day the ECHR requested the Irish government not to proceed with it because it said it wanted to consider the woman’s arguments.
The government agreed to that request.