What is the relationship between ongoing immigration tribunal proceedings and applications to the family court for a female genital mutilation (‘FGM’) protection order? The High Court in BA & Anor v JA & Ors (female genital mutilation protection orders and immigration appeals) [2018] EWHC 1754 (Fam) gave some guidance on the correct approach.
Background
The applicant parents were Nigerian citizens of Yoruba ethnicity who had entered the UK in 2010 and subsequently had 3 children, including 2 girls. None of the family had leave to remain in the UK.
The parents made an urgent application to the High Court (Family Division) for FGM protection orders on the basis that there was ‘extreme risk’ of their daughters being subjected to FGM upon return to Nigeria. A number of female members of the family had been cut in the past and powerful community leaders would insist upon their daughters being cut as well.
The immigration proceedings
The parents had applied for asylum on the same basis but have been refused by the Home Office who intended to remove the family to Nigeria. The parents’ appeal in the Immigration Tribunal and was due to be heard in October 2018.
The Family Court’s decision
The Court declined to make the order. There was no ‘current or immediate risk’ of FGM to the daughters while they were in the UK protected by their parents. Making the order would also seem to pre-empt the decision of the Immigration Tribunal on the parents’ claims for asylum.
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.
It was important for the Family Court to ‘properly respect the discretion‘ of both the Secretary of State for the Home Department and the Immigration Tribunal on immigration matters.
If the parents’ asylum appeal failed, and if the Home Office issued a removal notice, then it would be open to the parents to make a last ditch application for an FGM protection order. The Family Court would retain jurisdiction in those circumstances as the children were habitually resident in the UK.
However:
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
Comment
This is clearly a developing area in which there is potential complexity in the interaction between related areas of law. It goes without saying that the Family Court would be likely to place some weight on any final decision of the Immigration Tribunals on a person’s asylum claim. Applications for FGM protection orders may, however, provide an additional route to establishing risk either in the UK or upon removal from the jurisdiction. In appropriate cases, this may have consequences for removal decisions by the Home Office.
