GW (Sierra Leone) & Anor v The Secretary of State for the Home Department

An FGM prevention order is relevant evidence in a protection appeal, particularly where its factual assessment overlaps with the claimed overseas risk. It neither binds the Secretary of State or the Immigration and Asylum Chamber nor creates a presumption, default position or Devaseelan starting point.

Its weight depends on the overlap between the Family Court and protection issues, the cogency of the Family Court’s reasons, and the similarity of the evidence. A protection decision-maker must still consider sufficiency of protection and internal relocation. An extraterritorial FGM prevention order may itself reduce risk on return.

The Tribunal also issued country guidance on FGM in Sierra Leone, including that women rejecting Bondo initiation and FGM form a particular social group.

Two linked protection appeals raised the significance of Female Genital Mutilation Prevention Orders (FGMPOs) in asylum appeals. GW, a Sierra Leonean woman, relied on FGMPOs made after Family Court proceedings concerning a claimed risk of FGM; the respondent conceded her protection appeal after further country evidence.

FM, a Gambian woman, relied on FGMPOs concerning her daughters and claimed that her husband and his family would subject them to FGM on return. The First-tier Tribunal had dismissed both appeals after giving inadequate or no weight to the FGMPOs. Its decisions were set aside.

The central issue was the evidential and legal significance of an FGMPO when the Immigration and Asylum Chamber determines a related protection claim.

1. GW’s appeal was allowed on Refugee Convention grounds by consent; FM’s appeal was dismissed on all grounds. The Tribunal issued revised country guidance on FGM in Sierra Leone and held that the earlier guidance in RM (Sierra Leone) [2004] UKIAT 00108 and FB (Sierra Leone) [2008] UKAIT 00090 should no longer be relied on for FGM in that country.

2. Under the Female Genital Mutilation Act 2003, an FGMPO may protect against domestic or extraterritorial FGM. A Family Court cannot restrain the Secretary of State from exercising immigration powers. Nor does an FGMPO, or the judgment preceding it, bind the Secretary of State or a protection tribunal, create issue estoppel, or have precedential effect.

3. The Tribunal followed the reasoning in SSHD v Suffolk County Council & Ors [2020] EWCA Civ 731. An FGMPO is not a default position or starting point in the Devaseelan sense. Judicial comity does not require the IAC to duplicate the Family Court’s factual conclusions.

4. The order is instead potentially relevant evidence. Its weight depends on: whether the Family Court’s assessment maps over the issues in the protection appeal; the extent and cogency of its reasons; and the similarity of the evidence before the two jurisdictions. A fully reasoned assessment after contested evidence may be highly persuasive. An unexplained order made on thin or untested material may carry little or no weight. It cannot reverse the appellant’s burden of proof.

5. Even where the Family Court’s risk assessment is given significant weight, the IAC must separately assess sufficiency of protection and internal relocation. An extraterritorial FGMPO may itself deter a named respondent and thereby provide protection on return. A later FGMPO is not a new matter under section 85 of the Nationality, Immigration and Asylum Act 2002 where the existing protection claim already relies on FGM.

6. FM’s orders mapped to her claim but were made without recorded findings or reasons and carried very little weight. The Tribunal rejected her account as inconsistent and fabricated, finding no real risk that her daughters would undergo FGM in The Gambia.

• Upper Tribunal (Immigration and Asylum Chamber): Re-made the appeals after setting aside the First-tier Tribunal decisions. GW’s appeal was allowed by consent; FM’s appeal was dismissed.
• First-tier Tribunal: Dismissed each appellant’s protection appeal. Those decisions were set aside for material errors, including inadequate treatment of the FGMPO evidence.