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

An immigration decision concerning a woman at risk of female genital cutting must address that gender-specific risk. Where the Secretary of State’s reasoning appears to have been framed for a male national, and expert evidence indicates that internal relocation may be difficult or impossible, the Court of Appeal may extend a stay to enable a renewed application for permission to seek judicial review. A recent visit to the country may bear on the claimed risk, but an explanation based on seasonal avoidance of circumcision may be difficult to accept without expert support.

The appellant, a Gambian national, appealed against the Administrative Court’s refusal to grant a stay of removal directions. She feared that, although mature and married, she might be compelled by her family to undergo female genital cutting on return. The Secretary of State relied on her relatively recent holiday in Gambia and asserted that she could relocate internally. The central issue was whether the stay should be extended to enable a renewed application for permission to seek judicial review, having regard to the gender-specific risk and expert evidence concerning relocation.

1. Appeal allowed. Lord Justice Stanley Burnton extended the stay of removal directions to enable the appellant to renew her application to the Administrative Court for permission to apply for judicial review.
2. The appellant’s claimed risk was gender-specific. She said that she had not previously been circumcised and that, despite being married, she might be compelled or forced by her family to undergo circumcision in Gambia. The form of the Secretary of State’s decision appeared to be appropriate to a male Gambian national subject to the White List, rather than to a female claimant facing the alleged risk.
3. The Secretary of State’s reliance on the appellant’s recent holiday in Gambia was difficult to accept on the explanation advanced. The suggestion that circumcision did not take place during some periods of the year was unsupported by expert evidence. The court considered that circumcision normally occurred shortly after birth, while children were born throughout the year.
4. The internal-relocation argument was also materially affected by expert evidence indicating that relocation would be difficult, if not impossible.
5. In those circumstances, the stay was continued to permit the renewed permission application. If permission were granted, the stay was expected to continue; if permission were refused, removal was expected to follow. The court urged the Administrative Court to hear the renewed application as quickly as practicable, given that the appellant was detained.

• Court of Appeal (Civil Division): [2011] EWCA Civ 1452. Appeal allowed and stay of removal directions extended to enable a renewed application for permission to seek judicial review.
• High Court, Queen’s Bench Division, Administrative Court: His Honour Judge Mackie refused to grant a stay of removal directions. No citation is stated in the judgment.