BA & Anor v JA & Ors (female genital mutilation protection orders and immigration appeals)

I am sitting this afternoon as the High Court urgent applications judge. A without notice application has been made to me after formal issue of the underlying application and proceedings within the last hour or so. The circumstances of this application are unusual. I have already indicated that I decline or refuse to make any order at all on the application today, for reasons which I now shortly give by this judgment.

The application raises for consideration the interrelation between subsisting immigration proceedings before the immigration tribunals, and an application to the family courts for a statutory female genital mutilation protection order. By her position statement for today at paragraphs 18 to 20, the applicants’ counsel, Dr Charlotte Proudman, has expressly asked the court to give some guidance in relation to situations of this kind. I accordingly hereby do so.

The essential factual background is as follow. The applicants are a married couple who married in 2009. They are both of Nigerian descent and are citizens of Nigeria and of no other state. They travelled together to England in August 2010. Since then, the mother has given birth altogether to three children. These are one boy, who is not directly the subject of the present application, and two girls currently aged 7 and 5. Although all those children were born in England, they are not British citizens and none of the family are lawfully here.

In their statements dated today, the truth of which I, of course, unreservedly accept for the purpose of this judgment and ruling, both parents say that there is an extreme risk, amounting almost to a certainty, that if either of their daughters was in Nigeria, she or they would be genitally mutilated. They say that they are all members of the Yoruba tribe in which female genital mutilation remains a compulsory norm. The mother applicant says that she herself was cut when she was only seven days old. Both her sisters were cut and her husband’s two sisters were also cut. They say that the head of the family in Nigeria is a powerful chieftain and that he and the head of the mother’s own family in Nigeria would, in effect, insist and bring about that both the girls are cut. These two family heads, who are in Nigeria, are the two named respondents to this application.

Based on these facts, the parents have now made an application for asylum here. That has been rejected by the Secretary of State for the Home Department who has indicated a desire to remove the parents and children from the United Kingdom to Nigeria. The parents have appealed, as they are entitled to do, to the immigration appeal tribunal and their appeal is due to be heard in October 2018. It is quite clear from the witness statements and stated position of the parents that they will not themselves voluntarily send, or take, either of their daughters to Nigeria. It is indeed the very last thing that they would wish that their daughter be present in Nigeria where, they say, they are at extreme risk of being mutilated as I have described. Accordingly, it will only be as a consequence of an unsuccessful asylum appeal and the actual removal in due course by the Secretary of State of this family to Nigeria that the risk of female genital mutilation realistically arises.

Dr Proudman has submitted to me today that there could be some risk of some agent being sent to, or solicited in, England who might gain access to these girls and mutilate them here. That, however, seems to me to be an unreal and fanciful risk, given that the parents are clearly very alert to the risk of mutilation and are very protective of their daughters. So there is currently no actual risk of mutilation of either of these daughters unless and until they are actually removed by the Secretary of State to Nigeria.

It seems to me, therefore, that there is, in fact, no necessity or justification for the family court today, in early July 2018, to make any kind of female genital mutilation protection order at all. Such orders are discretionary and ought only to be made when there is an appropriate level of current risk against which the person concerned needs to be protected. Further, however, it seems to me obvious that the making of a genital mutilation order in this case might be seen as impacting upon, or influencing in some way, the discretionary decision which requires to be taken in October by the immigration appeal tribunal.

If there was a current cogent risk of female genital mutilation of either of these girls, then I would unhesitatingly make an order for their immediate and current protection. However, currently, there is no such risk and the only effect of such an order would be to impact in some way upon the immigration and asylum proceedings. It is of the utmost importance that family courts properly respect the discretion in immigration matters which reposes in the first instance with the Secretary of State for the Home Department, and ultimately in the immigration tribunal system upon any appeals to that system. So it seems to me that I should decline to make any order today, and the tribunal system must decide whether or not the asylum claim has been made out or whether the Secretary of State should be in a position to remove these children.

In the event that the asylum claim is ultimately unsuccessful (after any further appeals), and the Secretary of State does then resolve to remove this family and these two girls to Nigeria, he will still have to give a removal notice and there will be an interval of time before the children are actually removed to Nigeria. If, during that interval of time, the applicants consider that there is still a purpose or benefit for the children in Nigeria in obtaining a female genital mutilation protection order here in the very last period before the children are actually removed to Nigeria, then, of course, they can make a further application. No doubt, this court would, at that point, still have jurisdiction to make such an order since the girls were born here and have always lived here, and are unquestionably habitually resident here, albeit that they have no legal right to remain here. So the court would still have jurisdiction at that point to make female genital mutilation protection orders, but it would have to give very careful consideration at that point to whether or not it was appropriate to make such orders when it was, on that hypothesis, known that the children would very shortly be permanently leaving England and Wales and going to live abroad. Issues as to extraterritoriality would then clearly arise, but they do not fall for consideration by me today.

The short basis upon which I decline to make any order today is, first, that there is, in fact, no current or immediate risk of genital mutilation to these two girls; and, second, that it is quite wrong of this court to make any sort of order in these circumstances until the immigration tribunal system has decided upon the underlying asylum claims.