UK Supreme Court Blog

EDITORS: Dan Tench, Emma Cross, Zainab Hodgson, Francesca Knight, James Warshaw and Natalie Haefner (CMS)
Hugh Tomlinson KC, Matthew Ryder KC, Dévante Gravesande-Smith and Rebecca Khan (Matrix)

This case concerned the lawfulness or otherwise of detaining a person believed to be an adult but subsequently assessed to be a child.

Under the Immigration Act 1971, Sch 2, para 16, immigration officers are empowered to detain a person if there are reasonable grounds to suspect that he is liable to be removed as an illegal entrant. Para 17 permits the detention of children if statutory conditions are met, but it is UKBA policy “not to detain children other than in the most exceptional circumstances” (Enforcement Instructions and Guidance, paragraph 55.9.3.1).The Borders, Citizenship and Immigration Act 2009, s 55 provides that the Secretary of State for the Home Department must make arrangements for ensuring that any immigration functions are discharged “having regard to the need to safeguard and promote the welfare of children”, and that any services provided pursuant to those arrangements and relating to the discharge of those functions are provided “having regard to that need”.

The facts

The appellant (AA) was born in Afghanistan and arrived in the UK on 8^th October 2008. He said that he was aged 14 and claimed asylum. An age assessment was carried out the next day by Hampshire County Council children’s services department. It found AA to be over 19. On 6^th November 2008, the SSHD refused AA’s asylum claim and made a decision to remove him. His appeal to the First Tier Tribunal (Immigration and Asylum Chamber) was dismissed on 1^st March 2010. The immigration judge found that AA was over 18. In April 2010, AA’s solicitors informed the SSHD that they were instructed to challenge Hampshire’s age assessment. They asked Hampshire to reassess AA’s age. Hampshire suggested that Cardiff City Council should undertake the reassessment, as AA now resided in the Cardiff area. Cardiff agreed but delayed in doing so.

On 7^th July 2010 AA was detained under paragraph 16. It was agreed that, had the SSHD known AA to be a child, he would not have been detained.

On 20^th July 2010, AA issued a claim for judicial review against Cardiff, Hampshire, and the SSHD. The same day, Judge Bidder QC, sitting as a deputy High Court judge, ordered that AA’s removal be stayed pending the outcome of his application for permission to apply for judicial review and that he be released from immigration detention.

On 6^th August 2010, Cardiff assessed AA as being aged 17. This determination was accepted by the SSHD.

The decisions in the courts below

AA’s application for permission to apply for judicial review against Hampshire and Cardiff was withdrawn by consent, but he continued with his application against the SSHD. This was dismissed by Blake J after an oral hearing.

Permission to appeal to the Court of Appeal was granted on limited grounds but the appeal itself was refused. Arden LJ held that at the date of the detention, it had not been established that AA was a child, as he had been assessed as being an adult; the SSHD’s power of detention was wide enough to allow the detention of a person not assessed to be a child; and the s 55 duty did not apply.

The Supreme Court judgment

AA appealed to the Supreme Court. The SSHD relied on the statutory power of detention contained within para 16 to justify his period of detention. AA did not dispute that he came within that paragraph, but argued that the decision to detain him was unlawful because it breached section 55, as his welfare had not been taken into account.

AA’s appeal was dismissed.

Lord Toulson, who gave the judgment of the court, rejected the contention that any detention of a child in the mistaken but reasonable belief that he is an adult would of itself breach s 55. Although the risk of an erroneous age assessment could not be eliminated, it could be minimised. Further, the SSHD was under a continuing obligation to consider any fresh evidence, and an age assessment could be challenged by way of judicial review.

His Lordship accepted that any material breach of s 55 would render AA’s detention unlawful. However, there was no such breach in this case. Section 55 imposes a direct and a vicarious responsibility on the SSHD. Her direct responsibility is to make arrangements for immigration functions to be discharged having regard to the welfare principle. This responsibility had been complied with. Her vicarious responsibility is for the failure of anyone exercising those functions on her behalf to have regard to her guidance or to the welfare principle. There was no basis for finding that any official had so failed in this case.

Lord Toulson also considered the ancillary question – which had not been argued – of whether the court may determine for itself the question of a claimant’s age. Under R (A) v Croydon LBC [2009] UKSC 8, [2009] 1 WLR 2557, if a claimant for judicial review is challenging both the Secretary of State who detained him and the local authority who assessed his age, then the court may itself make a fresh determination of his age. Lord Toulson was concerned with the situation where a claimant seeks judicial review only of his detention, and not of his age assessment. His Lordship was sympathetic to the view that the court’s habeas corpus jurisdiction would enable it to determine the claimant’s age, as this would necessarily impact on the lawfulness of his detention.

Lord Carnwath gave a concurring judgment agreeing with Lord Toulson on the issues determinant of the appeal, but preferring “to say nothing” on the issue of whether the court could determine age under its habeas corpus jurisdiction.

Comment

When is a child not a child?  When he has been assessed as an adult. This case establishes that where a child has been found to be an adult, his detention as such will be lawful, even though it later transpires that he is (or was at the relevant time) under the age of 18.

The judgment has undoubted force. Children are (quite rightly) treated differently and more favourably than adults; many asylum-seekers have their ages disputed; there has to be a system for assessing their ages; this system must be compliant with s 55; once assessed, events have to proceed on the basis that the assessment is right until proved wrong.

And yet, the decision is disquieting. The evidence showing the damaging effects of detention on children is abundant. A child is no less of a child simply because he has been assessed as an adult. If all procedures have been carried out correctly, all policies followed, all assessments performed in good faith, then it would indeed be hard on the Secretary of State to be blamed for unwittingly detaining a child. But it could be argued that it is harder still on the child who has been detained.