Cham, R (on the application of) v Secretary of state for the home Department

This is an appeal against the refusal of the Administrative Court to grant a stay of removal directions for the applicant who is a citizen of the Gambia. She is a mature lady, and married, she says that she was not the subject of circumcision but if returned, although she is a married lady, and she and her husband, as I understand it, would both object to her circumcision she may be compelled, or perhaps even forced, by her family to submit to circumcision. There is no doubt that female genital cutting or circumcision does take place in the Gambia.

The Secretary of State made two points in her decision letter. The first is that the claimant has returned relatively recently for a holiday in the Gambia and would not have done so if she were in fear of circumcision. The second point that is made is that she could relocate. As far as the first point is concerned I have the claimant's answer is that there are periods of time when circumcision does not take place. I find that highly unlikely because children are born throughout the year and circumcision normally takes place within a short time after birth. There is no expert evidence that I have seen supporting the suggestion that there are times of the year when circumcision is not practised. In the absence of such expert evidence her explanation of her visit to Gambia is difficult to accept.

The other point made by the Secretary of State is that she could relocate. As far as that is concerned there is expert evidence indicating that that would be difficult, if not impossible. I refer to page 89 of the judicial review bundle, that is the last page of the report by Dr Bettina Shell-Duncan.

In those circumstances and given that the form of the decision of the Secretary of State seems to be that which would be appropriate for a male national of Gambia who would be subject to the so called "White List" rather than female, I propose to extend the stay to enable the applicant to renew her application to the Administrative Court for permission to apply for judicial review. If that application is successful, I would expect the stay to be continued. If it is unsuccessful, then I would expect removal to follow. Of course the papers will be served on the Secretary of State who will be able to appear on the renewed application for permission.

I urge all parties to ensure the speediest possible hearing of that application since at the moment the claimant, I understand, is in detention. I see no reason, provided the administrative court is able to cope, why that hearing should not take place within the next seven days or so.