Family court proceedings and immigration decisions By Conor James McKinney

In two recently decided cases, the High Court looked at the relationship between immigration matters and proceedings in the family court. That is about as far as it goes in terms of a unifying theme, if I’m honest: the uncontroversial proposition in each one is that the immigration and family jurisdictions are really very different.

This is a self-denying statement on the part of Mr Justice Holman in BA & Anor v JA & Ors (female genital mutilation protection orders and immigration appeals) [2018] EWHC 1754 (Fam). Holman J was asked to make a female genital mutilation protection order for a Nigerian family whose pending asylum appeal is based on the risk of FGM in their home country. He declined, saying that the risk here in the UK was “unreal and fanciful”. The only impact the order would have, the judge suggested, would be to interfere with the asylum appeal:

it seems to me obvious that the making of a genital mutilation order in this case might be seen as impacting upon, or influencing in some way, the discretionary decision which requires to be taken in October by the immigration appeal tribunal… it is of the utmost importance that family courts properly respect the discretion in immigration matters which reposes in the first instance with the Secretary of State for the Home Department, and ultimately in the immigration tribunal system upon any appeals to that system.

The other case is R (AS) v Secretary of State for the Home Department [2018] EWHC 1792 (Admin). The family court enters the picture in quite a different context here: the applicant’s passport was cancelled after he attempted to leave the UK with his wife and child. The Secretary of State alleged that the purpose of the trip was not a holiday in Berlin but terrorism in Syria.

When there are children in a family under a terrorism-related cloud, the family court tends to become involved. In this case, the child protection investigation closed with no adverse findings about the supposed Syrian expedition. AS asked for his passport back, relying on the family court decision which “implied a judicial assessment that there was no reason why the Claimant should not travel with his family”.

Supperstone J rejected that contention, saying that “the issue with which the Secretary of State and the Family Court were concerned was very different”. The passport decision was about national security, whereas the family decision was about safeguarding and the welfare of the child. There was “no error in the approach of the Secretary of State to the Family Court proceedings. She was requested to undertake a review of her previous decision following a request by the Claimant informing her of the withdrawal of the Family Court proceedings. She conducted that review and concluded, on the basis of the material before her, that the cancellation of the passport should be maintained”.

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