Michael Armitage appears for successful Claimant in landmark High Court case on unlawful detention of children

20 Jun 2016

In a landmark judgment handed down today, the High Court has ruled that it is unlawful for the Secretary of State for the Home Department (“SSHD“) to detain children under her immigration powers for any longer than 24 hours, irrespective of whether the relevant immigration official has reasonable grounds for suspecting the prospective detainee to be an adult: R (AA) v SSHD [2016] EWHC 1453 (Admin). The judgment is significant in that it is the first judicial consideration of the 2014 amendments to the Immigration Act 1971, which (as this case confirms) dramatically alter the previous state of the law on the lawfulness of child immigration detention.

The case was brought on behalf of a Sudanese asylum seeker, AA, who was detained by the SSHD for 13 days under her general powers of detention in paragraph 16 of Schedule 2 to the 1971 Act. The detention was said to be justified in accordance with Chapter 55 of the Enforcement Instructions and Guidance, the well-known Home Office policy which permits the detention of individuals claiming to be children but whose physical appearance / demeanour “very strongly suggests that they are significantly over 18 years of age and no other credible evidence exists to the contrary“. While AA was in detention, a local authority that had conducted a Merton “age assessment” concluded that AA was a child, and AA was eventually released on the basis of that assessment, there no longer being any basis under the SSHD’s policy for maintaining the detention.

AA contended in the proceedings that he had been unlawfully detained, notwithstanding that his detention had been in accordance with the terms of the SSHD’s policy. Notably, the Supreme Court held in 2013 (in R (AA (Afghanistan)) v SSHD [2013] UKSC 49) that the detention of a child in the mistaken but reasonable belief that he was an adult was not contrary to that policy, or to the general duty to safeguard and promote the welfare of children in section 55 of the Borders, Citizenship and Immigration Act 2009. However, after judgment in that case had been handed down, Schedule 2 to the 1971 Act was amended so as to subject the SSHD’s general powers of immigration detention to express statutory restrictions in the case of unaccompanied children: see paragraph 18B of Schedule 2 to the 1971 Act, which provides that unaccompanied children may only be detained in short-term holding facilities, and even then only for a maximum period of 24 hours. The word “child” is defined in paragraph 18B(7)in entirely objective terms as “a person under the age of 18“.

In a careful and detailed judgment, Sir Stephen Silber rejected the SSHD’s submission that the word “child” in paragraph 18B of Schedule 2 to the 1971 Act should be read so as to incorporate reference to the reasonable beliefs of the immigration official. “Child” had to be interpreted objectively, as a matter of “precedent fact” just as it had been in the seminal Supreme Court case of R (A) v Croydon [2009] 1 WLR 2557 in the context of local authorities’ duties to “children in need” under the Children Act 1989. It followed that the Claimant’s detention was unlawful, it being accepted that he was unaccompanied, and under 18 years old, at the time of his detention. It followed that AA’s detention was unlawful from the outset (with damages to be assessed in due course). In addition, the Judge held that even if (contrary to his findings on the main ground of judicial review) the SSHD could lawfully detain AA on the basis of a reasonable belief that he was an adult, AA’s detention was in any event unlawful from the date on which the SSHD received the local authority’s age assessment confirming the Claimant to be a child.

The judgment constitutes an extremely important development with the potential to have far-reaching implications for the detention of asylum-seeking young people. Permission to appeal to the Court of Appeal has already been granted by Sir Stephen Silber and judicial review practitioners will await the outcome of the appeal with interest. For now, however, the law is straightforward: individuals under 18 cannot lawfully be detained under immigration powers (i) for any longer than 24 hours or (ii) in adult immigration removal centres for any length of time. The SSHD’s beliefs about individual’s age are irrelevant.

Michael Armitage, instructed by Stuart Luke of Bhatia Best, appeared as sole counsel for the successful Claimant.