England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
APPLICATION FOR PERMISSION TO APPEAL
THE DECISION TO REFUSE PERMISSION TO
CLAIM FOR JUDICIAL REVIEW

		Royal Courts of Justice Strand London WC2 Friday 19th July 2002

1. LORD JUSTICE SEDLEY: This is an application for permission to appeal against the decision of Sir Richard Tucker, sitting as a judge of the Queen's Bench Division, on 12th November 2001. The application has been made before me, as it was below, by MrBenjamin Orija. The applicant is, however, not him but his daughter, who has now just turned four years. He purports to speak on her behalf in the following circumstances.
2. Mr Orija is an illegal entrant into this country who has been here since 1996. He has been married since 1998 to the woman who is the mother of his daughter, Jemima. Both mother and daughter are lawfully settled here and have an indefeasible right to remain; Mr Orija does not. But as a spouse he has the entitlement of any spouse to apply from abroad for entry and settlement if he can satisfy the appropriate immigration rules. Meanwhile, however, it is the decision of the Secretary of State that he must be removed to Nigeria since he has no lawful entitlement to be in this country.
3. What Mr Orija submits is that the price of his removal will be the break-up of his family. So far he is clearly right, although his entitlement to apply for entry as a spouse may mean that it is only a temporary parting. But his reasoning goes on in this way: he is a qualified IT software engineer; he is the breadwinner for the family; his wife does not work; she has a disability which makes work difficult for her; it is therefore going to be necessary in order to maintain the unity of the family for the wife and daughter to accompany him to Nigeria if he is sent back there. If that happens, Mr Orija says the daughter will be at real risk - he puts it as a near certainty - of genital mutilation. That, he says, is a risk to which she should not be subjected. Nor therefore, the argument goes, should he be removed, since the consequence of his removal would be the maintenance of family unity, something for which the law of this country has a high regard, at a terrible price to the daughter.
4. The Home Secretary has taken the view that this risk is much exaggerated. Mr Orija has submitted today, putting forward documentary evidence in support, that it is not. He has also explained why, in terms of his own family situation. The Orija family, he tells me, who are Yoruba, have a practice which is not tribal but familial of circumcising the young female members of this extended family around the age of five years. While both he and his wife are horrified by it, it is something from which he would not be able to protect the daughter at the hands of the family elders. His wife was brought to this country by her grandmother in order to escape such a fate herself.
5. I am prepared for the purposes of this application to accept that the risk is a real one and that the implicit threat that is held out in relation to the daughter's contingent return to Nigeria is not an idle one. Even so, I have to ask the question: is there any legal basis upon which, in the applicant's interest (that is to say the daughter's interest, which is the only interest before the court) it would be right in the light of this risk to prevent the Home Secretary from removing her father? The answer to that question depends upon the assumption that the daughter and mother will go to Nigeria if the father is sent there. This is an assumption which seems to me not only to be unfounded but one which it would be contrary to the law to make.
6. I say that for this reason - and I put it on record because I want it to be on the record: if there is any risk at all, even a remote one, that this child, a UK citizen, if sent to Nigeria would be subjected to female genital mutilation - and on the evidence put before me by Mr Orija there definitely is such a risk - then it would be without any question contrary to the child's best interests for her to go to Nigeria. It would, in my view, be unlawful for the mother even to contemplate letting the child go there. What the mother, as an adult, does is her own affair, although she also has responsibility for the child's welfare. But the courts as well as the parents have a concern with the child's welfare. It seems to me that the greater the evidence of any risk to the child that she will be genitally mutilated in Nigeria, the greater the reason for saying she must never be allowed to be taken there in the hands of Mr Orija's family.
7. It follows by parity of reasoning that any risk to the child of detriment consequent on the father's removal to Nigeria is nugatory. It is the obligation, in my judgment, of the mother and the courts of this country to make sure, in the circumstances placed before the court, that it does not happen.
8. In those circumstances, therefore, and accepting the very thing which Mr Orija submits to me should have been accepted by the Home Secretary, it seems that the case for not interfering with the Home Secretary's order becomes proportionately stronger. Even on the alternative basis of the judgment arrived at by the Home Office as to the magnitude or paucity of the risk, the reasons given by Sir Richard Tucker for refusing permission to seek judicial review would, in my judgment, be unimpeachable; and on that basis I would if necessary refuse permission to appeal. However it is on the first basis that I have indicated that I refuse permission.
Order: Application refused. At public expense copies of judgment to be sent to Mr Orija, Mrs Orija, the Home Office and, through them, to local Social Services Department