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

A female genital mutilation protection order is discretionary and should be made only where there is an appropriate current risk requiring protection. The family court should not make an order whose principal effect would be to influence pending asylum or immigration proceedings. Where the risk arises only if removal occurs, the immigration authorities and tribunal must first determine whether removal is lawful. A fresh application may be made during the period between a removal decision and actual removal, although the court must then consider the children’s imminent departure and any extraterritorial issues.

The applicants, Nigerian parents, sought female genital mutilation protection orders for their two daughters, aged seven and five. The family had claimed asylum after the Secretary of State for the Home Department rejected their applications and indicated an intention to remove them to Nigeria. Their immigration appeal was pending.

The parents alleged that the girls faced an extreme risk of genital mutilation in Nigeria. They did not intend to take or send the children there voluntarily. The central questions were whether there was a present risk justifying protection orders and whether the family court should act while the immigration appeal remained unresolved.

1. Application refused. The court declined to make any female genital mutilation protection order at the urgent without-notice hearing.
2. The evidence established no current or immediate risk. The alleged risk would arise only if the family were removed to Nigeria. The suggested possibility that an agent might be sent to England was considered unreal and fanciful because the parents were alert to the danger and protective of the girls.
3. Female genital mutilation protection orders are discretionary. They should be made only where there is an appropriate level of current risk against which the person concerned requires protection. If a cogent present risk had existed, the court would have made an immediate order.
4. It would be wrong in the circumstances to make an order which might impact upon or influence the discretionary decisions of the Secretary of State and the immigration tribunal. The immigration system had to decide whether the asylum claim was made out and whether removal could proceed.
5. If the asylum claim ultimately failed and removal became imminent, the parents could make a further application during the interval before removal. The family court would likely retain jurisdiction because the girls had been born and had always lived in England and were habitually resident there, despite having no legal right to remain. At that stage, the court would need to consider the imminent permanent departure and possible extraterritorial issues.