Orija, R (on the application of) v Secretary of State for the Home Department

In an immigration removal challenge brought in the interests of a child, the court must not assume that a settled parent and child will follow the removed parent abroad if doing so would expose the child to a real risk of female genital mutilation. For a UK citizen child, even a remote risk makes departure contrary to the child’s best interests and unlawful for the mother to contemplate permitting it. The mother and courts have a responsibility to prevent the child being taken. Any detriment said to result from the parent’s removal is therefore legally nugatory. The risk strengthens, rather than weakens, the case for leaving the removal decision undisturbed.

Mr Orija applied on behalf of his four-year-old daughter for permission to appeal against Sir Richard Tucker’s refusal of permission to claim judicial review. Mr Orija was an illegal entrant liable to removal to Nigeria. His wife and daughter were lawfully settled in the United Kingdom. He argued that removal would either divide the family or cause his wife and daughter to accompany him, exposing the child to a real risk of female genital mutilation. The central issue was whether that contingent risk provided a legal basis for preventing his removal.

1. Application refused. Lord Justice Sedley, sitting alone, refused permission to appeal.
2. For the purposes of the application, the court accepted that the child faced a real risk of female genital mutilation in Nigeria and that the threat was genuine.
3. The argument depended on assuming that the mother and child would accompany Mr Orija to Nigeria. That assumption was unfounded and contrary to law. If any risk, even a remote risk, existed that the UK citizen child would be subjected to female genital mutilation there, it would be contrary to her best interests for her to go. It would also be unlawful for the mother to contemplate allowing her to go.
4. The mother’s own decision as an adult was her affair, subject to her responsibility for the child’s welfare. Both the parents and the courts had an obligation to ensure that, in the circumstances, the child was not taken to Nigeria.
5. It followed that any detriment to the child said to result from her father’s removal was legally nugatory. The greater the evidence of risk, the stronger the reason to prevent the child’s departure, and therefore the stronger the case for leaving the removal decision undisturbed.
6. Even on the Home Secretary’s alternative assessment that the risk was exaggerated or slight, Sir Richard Tucker’s reasons for refusing permission to seek judicial review were unimpeachable. The application was refused on the primary basis stated above. Copies of the judgment were ordered to be sent to the family, the Home Office and the local Social Services Department.

• Court of Appeal (Civil Division): On 19 July 2002, Lord Justice Sedley refused permission to appeal. [2002] EWCA Civ 1227.
• Queen’s Bench Division: Sir Richard Tucker refused permission to claim judicial review on 12 November 2001.