Samantha KnightsIssues surrounding immigration detention unsurprisingly continue to arise for consideration by the Supreme Court. Earlier this month a five bench Supreme Court (Lords Neuberger, Clarke, Wilson, Carnworth and Toulson) heard an appeal concerning the question of whether it is lawful to detain a person with a view to removing them on the mistaken belief that the person is an adult when in fact he is a child. Given the numbers of accepted unaccompanied minors arriving in this country (1,275 in 2011 according to an EU figure), the case will have significant impact in this field.

In this case the mistaken belief was critical. Had the SSHD appreciated that AA was a minor at the date on which he was detained, she would not have detained him pursuant to her policy on detention of unaccompanied minors. However, at the time the SSHD had relied on an age assessment by a local authority finding that AA was 19 and an incidental finding by the immigration tribunal than AA was not a child. Whilst in detention AA commenced judicial review proceedings claiming that the refusal to carry out a fresh age assessment and the decision to detain were unlawful. The Court granted an urgent injunction for release. He was then released from detention and a new age assessment carried out which determined that AA had been a child at the date of his claim for asylum and detention. AA continued his claim against the SSHD challenging the lawfulness of the decision to detain and seeking damages for unlawful detention.

Both the High Court (Blake J) and Court of Appeal (Arden, Davis and Baron LJJ) rejected his challenge. The Court of Appeal (Arden LJ) reasoned as follows:

(1)  At the date of his detention it had not been established that AA was a child as his age had been assessed as that of an adult.

(2)  The SSHD’s statutory power of detention was wide enough to permit the detention of a person not established to be a child and her duty to treat the best interests of a child as a primary consideration did not apply.

(3)  The policy of the SSHD permitted the detention of a person not established to be a child, and the principle giving an individual the benefit of the doubt did not apply in the circumstances of this case.

The appeal raises a number of interesting points. First, the relationship between the statutory power to detain and the section 55 duty imposed on the SSHD to treat a child’s interests as a primary consideration. Secondly, whether the policy on detention of children read in light of the section 55 duty, Article 5 ECHR, the UNCRC and other international instruments permitted the detention of individuals where there was a dispute as to age. As such there is a challenge to the SSHD’s policy which on the face of it permits detention of age disputed children. What is not apparently in issue in this case is whether it was reasonable for the SSHD to rely on the initial age assessment as Merton compliant.

Numerous reports have established that detention of children has the most serious consequences for them as individuals. Indeed the coalition government has committed to ending the detention of children although in practice detention still takes place. Further, the fact that age disputed children are being detained under government policy is troubling in light of the need to protect children and those who may subsequently be determined to be children. Where the balance is to be struck between the interests of the SSHD and those of children will be determined by the Supreme Court.