Srishti Suresh analyses an important recent decision from the President of the Family Division on the relationship between the family courts and the immigration jurisdiction.
In the case of A (a child: female genital mutilation: asylum)  EWHC 2475, the President of the Family Division, Sir Andrew McFarlane, considered whether the Family Court, facing FGM proceedings, can injunct the Secretary of State in the exercise of the asylum jurisdiction.
In September 2015, a mother applied for asylum in respect of herself and her children. Both she and her husband were Bahraini nationals of Sudanese origin; however, her husband is believed to be detained in a military prison in Bahrain.
The application for asylum was made on the grounds that her daughter (A, a 10-year-old girl) would be subject to FGM if returned to Bahrain. The application was refused, and the appeal process was unsuccessful. In 2017, the First Tier Tribunal found that there were no substantial grounds for believing that there was a ‘real risk of [A] being subjected to any form of FGM’; notwithstanding that the relevant local authority recommended an application be made for an FGMPO if the family returned to Bahrain. Both mother and children were due to be deported in September 2018.
In late September 2018, the local authority applied for an FGMPO. At an initial hearing in October 2018, the Court made the following directions:
- prohibiting the mother from leaving the jurisdiction with or in the company of A;
- prohibiting the Secretary of State for the Home Department (SSHD) or anyone acting on his behalf from removing, instructing, or encouraging any other person to remove A from the jurisdiction of England and Wales; and
- prohibiting the SSHD or the mother from obtaining a passport or other travel documentation for A.
The President of the Family Division then had to determine whether or not the SSHD was bound by the terms of the FGMPO.
At , the President accepted the agreed proposition that an application for a FGMPO should be considered through the prism of Article 3. However, it was not accepted that FGM proceedings had a unique jurisdiction to injunct the Secretary of State, for the following reasons:
- there is no suggestion in the body of case law that there is an exception to the general prohibition on the family court granting orders against SSHD, even if a breach of Article 3 is alleged;
- if Parliament had intended to create such an exception, the FGMA 2003 would expressly reflect this; and
- there is no evidence that the State, in its exercise of its asylum and immigration jurisdiction, would be in breach of its obligations under Article 3 if the family courts did not have the power to injunct the SSHD.
Furthermore, at [55-56], a distinction was drawn between the concept of ‘risk assessment’ in a family case and in asylum claims. The SSHD had submitted that the family court should use the risk assessment undertaken by the FTT as a starting point, only to be departed from if there was a good reason to do so. However, the President found that pursuant to Schedule 2, para 1(2) of the FGMA 2003, the court was under a duty to form its own assessment, "unencumbered by having to afford priority or precedence to the outcome of a similarly labelled, but materially different, process in the immigration jurisdiction".
Orders made under the umbrella of ‘harmful cultural practices’, such as FMPOs and FGMPOs, reveal a degree of symbiosis between family and immigration considerations. However, this case reminds practitioners of the extant boundary between those jurisdictions, providing clear authority for the idea that there is ‘no jurisdictional space in the structure that has been created by Parliament in which the family court can reach across and directly interfere in the exercise by the Secretary of State’s exclusive powers with respect to the control of immigration and asylum’ . As family courts continue to face novel international complexities, this reminder is particularly impactful.