20 July 2018, by Emma Fitzsimons
In an unusual case, Mr Justice Holman gave guidance on the interrelation between subsisting immigration proceedings before the immigration tribunals, and an application to the family courts for a statutory female genital mutilation order.
The applicants, a married Nigerian couple of the Yoruba tribe, moved to England in August 2010. Since being in the UK, they have had three children: two girls, aged seven and five, and a boy. The children are not British citizens and none of the family had leave to remain in the UK. The parents sought FGM protection orders in respect of both their daughters, on the basis that there was an “extreme risk, amounting to almost certainty, that if either of their daughters was in Nigeria, she or they would be genitally mutilated.” The children’s mother had herself been cut, as had her sisters and the female relatives on the father’s side. The respondents to the application are two powerful heads of the families, in Nigeria.
In addition, the applicants had claimed asylum on the basis of the risk to the girls. This was rejected by the Secretary of State for the Home Department, but the parents had an outstanding in-country right of appeal, due to be heard in October 2018. The evidence before the Court made plain that the parents had no intent of returning to Nigeria. It was argued on behalf of the applicants that there was some risk that an agent could attempt to gain access to the girls in England, but this was flatly rejected by the Court as being “an unreal and fanciful risk.” Thus, the Court found it would only be if their appeal failed and removal action were to be taken would this risk realistically arise.
Mr Justice Holman found there was no necessity or justification for the family court in July 2018 to make any kind of FGM protection order at all. The Court emphasised that:
- Such orders are discretionary;
- They only ought to be made whether there is an appropriate level of current risk against which the person concerned needs to be protected;
- The making of an FGM order in these circumstances might impact upon, or influence, the decision of the First-tier Tribunal in the appeal proceedings;
- It was of the utmost importance that family courts properly respect the discretion of the Secretary of State of the Home Department in immigration matters, in the first instance, and ultimately, the Tribunal.
Mr Justice Holman stressed that if there was a current cogent risk of FGM, that the Court would unhesitatingly make an order for their immediate and current protection. If at the end of the Tribunal proceedings, the appeal was dismissed, there will still be a period between exhaustion of appeal rights and removal action where the applicants could still apply to the Family Court if so inclined. The Court would still have justification to make an order because the girls were born in England, and were unquestionably habitually resident. Mr Justice Holman did flag that the Court would need to consider any application carefully, particularly given issues of extraterritoriality, but did not deal with this aspect in depth.
The case provides novel guidance on the appropriate sequence of events as regards international protection claims and FGM protection orders, though as immigration practitioners will be well aware, the established case law on children matters in the Family Court and Article 8 claims takes the opposite approach, see RS (Immigration and Family Court Proceedings) India  UKUT 00218 (IAC) for guidance.
The full judgment is available here: BA, AA and JA, AA (Female Genital Mutilation Protection Orders and Immigration Appeals)  EWHC 1754 (Fam)