New Judgment: AA v Secretary of State for the Home Department  UKSC 49
10 Wednesday Jul 2013
On appeal from:  EWCA Civ 1383.
These proceedings concerned an appeal which arose from the detention of the appellant pending his removal to Afghanistan. The respondent Secretary of State was under the mistaken belief that the appellant was aged over 18 in light of the assessment carried out by social workers from Hampshire County Council in Oct 2008.
The issue on this appeal was whether the Borders, Citizenship and Immigration Act 2009, s 55, renders the appellant’s detention of a period of 13 days under the Immigration Act 1971, sch 2, para 6 unlawful, due to the mistaken belief that he was over 18. S 55 imposes duties regarding the welfare of children on the Secretary of State and immigration officers in all immigration matters.
Held: the Supreme Court dismissed the appeal, holding unanimously that the respondent’s vicarious responsibility under s 55 has been appropriately discharged, as there was no basis for finding that there was a failure by any official to follow the guidance. It further held that though the risk of an erroneous age assessment can never be eliminated, it can be minimised by a careful process, and in that regard the benefit of the doubt is given to the claimant at the stage of a particular age assessment; thereafter the respondent can always consider any fresh evidence. It therefore declared that detention of a child under para 6 in the mistaken but reasonable belief that he was over 18 is not in itself a breach of s 55.