Child Asylum Seeker’s Detention Held Unlawful

AAM (A Child) v Secretary of State for the Home Department [2012] EWHC 2567 (QB) (27 September 2012)

This case has a lot of faces because the legal issues it raises are quite complex. There is a lot in the judgment so I have tried to highlight the meatiest parts of it. Judgments on detention and the authorities’ duty to children tend to be extremely long. But since so many people are put in immigration detention and the law is pretty complicated, denser and longer judgments have become the norm. In the present case, the Court held that the claimant’s detention was unlawful and he was falsely imprisoned for a period of 44 days. Moreover, the detention also breached the ECHR and the Human Rights Act 1998.


The claimant (“C”), an Iranian national of Kurdish ethnicity from a village called Torman, entered the UK – using an “agent” via what is described as the “Iran, Turkey, UK” route – at the age of 15 in the back of a lorry. C was unlawfully detained because immigration officers were wrong to conclude that he was 18 when he was in fact 15 years old. The officers failed to promote and safeguard C’s welfare as a child as alternatives to detention had not been considered. Prior to his arrival in the UK in February 2012, in December 2009 C was detained and fingerprinted in France but did not claim asylum.

The day after arriving here, C (who was disabled and had a chest infection) went into a petrol station asking for food. He was handed over to the police, seen by a doctor and detained. Although he claimed to be only 15, social services relied on a pro forma age assessment document to conclude that – owing to his facial hair and worn appearance – he was over 18 years of age.

The age assessment was not conducted in accordance with the “Merton principles” and the immigration officer failed to check whether it was. A second age assessment that was Merton-compliant found that C was 17 and his unconditional release from detention was ordered but his application for asylum was subsequently refused because his date of birth, as determined by social services, meant that he was now 18. At first instance, C’s appeal was dismissed but he successfully appealed to the Upper Tribunal where it held that he had been 15 as claimed.

In R (B) v London Borough of Merton [2003] EWHC 1689 (Admin), Stanley Burnton J (as he then was) [36] – [48] provided minimum standards on how to conduct age assessments. Among other things, the Court noted that the applicant must understand the purpose of the interview and the decision maker must explain this and that except when clear, the decision maker cannot determine age solely on the basis of the appearance of the applicant. The general background of the applicant must be elicited and ethnic and cultural information may also be important. Where there is doubt about the applicant’s statement as to their age, an assessment of the applicant’s credibility must be made and questions designed to test the applicant’s credibility must be asked. If the provisional view that the applicant is lying is formed, the applicant must be given the opportunity to address the matters that have led to that view and adequate reasons must be given for a decision that denies an applicant’s claim to be a child. Although a local authority may take into account information obtained by the immigration authorities, it must formulate its own view, and for that reason must have adequate information available to it.

Under paragraph of the Enforcement Instructions and Guidance (EIG), the UKBA accepts someone as under 18, including those who have previously claimed to be an adult, unless (i) there is credible and clear evidence that they are 18 or over or (ii) a full Merton-compliant age assessment by Social Services is available stating that the person is 18 or above or (iii) their physical appearance/demeanour very strongly indicates that they are significantly over 18 years of age and no other credible evidence exists to the contrary.

In making his claim, C submitted that:

(1) There had been a breach of para of the EIG in determining whether he was a child;

(2) His detention breached section 55 (Duty regarding the welfare of children) of the Borders, Citizenship and Immigration Act 2009 (BICA);

(3) His detention breached his rights under article 5 of the European Convention on Human Rights 1950 (ECHR);

(4) His detention breached the Hardial Singh [1983] EWHC 1 (QB) principles: where Woolf J (as he then was) remained [7] satisfied that the SSHD’s power to detain under the Immigration Act 1971 was implicitly limited to a period which is reasonably necessary for deportation to be carried out and that a reasonable period depended upon the circumstances of the individual case.

Mrs Justice Lang’s judgment addressed liability only. The judgment is a formidable synthesis of domestic and international jurisprudence and legal theory (such as Professor Forsyth’s interpretation of Hans Kelsen’s Pure Theory of Law which the Court was invited to consider): it revisits key cases in relation to the tort of false imprisonment – a tort of strict liability actionable per se – such as R (Lumba) [2011] UKSC 12 which established that the fact that the detainee would have been lawfully detained was relevant to damages rather than liability. Since the appellants in R (Lumba) had suffered no loss, they were only entitled nominal damages of £1. But perhaps it is worth remembering that in R (Kambadzi) [2011] UKSC 23, Lord Hope DPSC [55] said that he “would not foreclose entirely the possibility that the appellant … is entitled to more than just a purely nominal award.”

Mrs Justice Lang DBE’s Decision

Age assessment: breach of paragraph para EIG

Applying R (A) v Croydon LBC [2009] UKSC 8, Lang J observed that whether a person was a child for the purposes of section 20(1) – Provision of accommodation for children: general; child in need – of the Children Act 1989 was a jurisdictional fact. On that basis alone, the assessment was invalid because the UT determined C’s date of birth and he was 15 at the time of the first age assessment [91] – [92].

In relation to the first ground of challenge as to the legality of detention, Lang J thought that “the failure to comply with the Merton standards rendered the assessment so unfair as to be unlawful in the circumstances of this case” [95]. No appropriate adult was present, the assessment was conducted by one social worker rather than two and C had no opportunity to comment on the social worker’s adverse findings [94]. However, that did not of itself invalidate the immigration officer’s decision [110]. The existence of a Merton compliant assessment was not an objective fact to which there was only one correct answer because an immigration officer had to judge whether or not the age assessment was Merton-compliant: “a question upon which views might well differ” [110].

In the circumstances, Lang J [99] considered that C could have successfully challenged the validity of the age assessment in legal proceedings because neither the SSHD nor the Court would have continued to detain him on the basis of an age assessment which had been held to be invalid: the question, hence, was whether the outcome should be different when the court is considering detention retrospectively rather than prospectively [100]?

In Boddington [1999] 2 AC, Lord Irvine L.C. (as he then was) held that although sometimes subordinate legislation, or an administrative act, is said to be presumed lawful until it is been pronounced to be unlawful, “it did not mean that such legislation or act is valid until quashed prospectively.” In his Lordship’s judgment “the true effect of the presumption is that the legislation or act which is impugned is presumed to be good until pronounced to be unlawful, but is then recognised as never having had any legal effect at all.”

C submitted that any error of law, whether jurisdictional or not, renders a decision unlawful and therefore a nullity: Anisminic [1969] 2 AC 147 as confirmed by Lord Dyson in Lumba, [66]. C argued that the age assessment was a jurisdictional fact and so, applying Boddington (where adopting Professor Forsyth’s The Metaphysics of Nullity – Invalidity, Conceptual Reasoning and the Rule of Law approach, Lord Steyn framed the crucial issue as whether the second actor has legal power to act validly notwithstanding the invalidity of the first act) once it was established that the age assessment was invalid, it inevitably followed that the immigration officer’s assessment under the second criterion in paragraph EIG was also invalid. C argued that where a second decision had been made in reliance upon an earlier decision, which is subsequently pronounced unlawful, a “domino effect” occurred if the unlawfulness is held to be retrospective.

In the Metaphysics of Nullity, Professor Forsyth felt extremely frustrated because the law was “not omnipotent”, it could not “set everything right.” He also lamented that “for good or ill it is often impossible to return to the status quo ante. The law cannot wash away all signs of illegality.” On the theoretical plane, Forsyth sought comfort in Hans Kelsen’s Pure Theory of Law which distinguishes between the Sein (the Is) and the Sollen (the Ought), between the sphere of things “that are, i.e. facts or natural phenomena, and the realm of norms, including therein law.” So the factual existence of a void act was capable of serving as the basis for other decisions. Observing that “events from the Sein often have an effect, directly or indirectly, in the realm of the Sollen”, Forsyth concluded that “if the validity of the first act is a jurisdictional requirement for the valid exercise of the second actor’s powers, then, if the first act is invalid, so is the second.” Moreover “the voidness of the first act does not determine whether the second act is valid. That depends upon the legal powers of the later actor.”

But applying R (J) [2011] EWHC 3073 (Admin), endorsing Coulson J’s [31] – [32] approach, Lang J held that an objective interpretation of paragraph EIG required an immigration officer to evaluate the evidence and form a judgment [110]. Therefore, it could not be described as a jurisdictional fact. Neither could the conclusion on age in an age assessment. An immigration officer had to satisfy herself, in accordance with the EIG, that there was reliable evidence that the person was 18 or over and, therefore, should be treated as an adult [111].

On the evidence, the immigration officer’s decision to detain C was unlawful: she had not asked herself the right questions, acquainted herself with the information needed to make the decision, or followed the relevant guidance [113].

Welfare of children principle

In relation to the second ground, Lang J held that in failing to have regard to the need to safeguard and promote C’s welfare as a child, due to the mistaken belief that he was an adult, the immigration officers had erred in law and were in breach of section 55 BCIA. Therefore, the decision to detain C was unlawful.

Lang J reminded the UKBA and individual immigration officers that they must also have regard to the need to safeguard and promote the welfare of children when making decisions about detention in individual cases [118].

The Court explained that the SSHD had a dual duty which meant that the mere issuance of policy and guidance to “promote” the welfare of children principle would not do because she is also obliged to “ensure” that the section 55(2) functions are discharged by immigration officers in accordance with that principle [119]. Therefore, if in individual cases SSHD’s policy did not ensure that result then section 55 was breached.

The fact that paragraph EIG empowered an immigration officer, upon a reasonable belief, to make a decision that someone was an adult allowed room for error. This meant that where the person concerned was in fact a child, the SSHD’s policy did not ensure that the welfare principle was complied with and, contrary to the section 55 duty, the effect was that an immigration officer’s functions – under section 55(2) – “will be exercised in respect of a child without applying the welfare of children principle” [120]. Where an immigration officer misevaluates a child as an adult, the policy is breached and the decision should be quashed and remade correctly so that the officer’s “functions can only lawfully be exercised in respect of a child if the welfare of children principle is applied” [121].

Section 55(3), moreover, requires that officials under the Immigration Acts must have regard to the SSHD’s guidance Every child matters: change for children under which – reflecting article 37 of the United Nations Convention on the Rights of the Child (UNCRC) – unaccompanied children such as C should only be detained “in the most exceptional circumstances whilst other arrangements for their care and safety are made” [122] – [124].

Furthermore, following Lady Hale’s [23] – [25] approach in ZH (Tanzania) [2011] UKSC 4, Lang J [125] noted that “section 55 was enacted to reflect the lifting of the UK’s reservation to the UNCRC and its effect is that regard must be given to the need to safeguard and promote the welfare of children when making decisions in individual cases.” In ZH (Tanzania), the SSHD accepted that the duty applied to how children were looked after while their cases were pending and to the individual decisions themselves. Inevitably, Strasbourg expected that national law should interpret the UNCRC to treat children’s best interests as a primary consideration.

Finally, the Court cited no less than five cases – R (TS) [2010] EWHC 2614 (Admin), R (Suppiah) [2011] EWHC 2 Admin, R (Asefa) [2012] EWHC 56 (Admin), R (Tinizaray) [2011] EWHC 1850 (Admin) and R (ABC (Afghanistan)) [2011] EWHC 2937 (Admin) – as examples of successful legal challenges in instances where, contrary to the section 55 duty, individual decisions failed to have regard to the need to safeguard and promote the welfare of children [126].

Article 5 ECHR: right to liberty and security of person

Lang J held that “that the obligations in the UNCRC are intended to be applied to all children, without qualification.” Recalling Strasbourg cases such as Rahimi v Greece (App. No. 8687/08, see English press release here) and Popov v France (App. No. 39472/07), the Court held that C’s detention breached article 5(1) of the ECHR and that it was unlawful under section 6(1) the Human Rights Act 1998. It was clear that C was a child within the meaning of article 1 – “a human being below the age of eighteen years” – which is clear and unequivocal in its content. Equally, on the evidence, by detaining C the SSHD had failed to have regard to his best interests as a child (contrary to article 3 of the UNCRC) because she had detained C with adults and violating article 37 of the UNCRC failed to consider an alternative to detention [141] – [143].

Hardial Singh principles

C also alleged that the SSHD’s officials (i) acted contrary to the EIG and by applying an unpublished presumption that an asylum seeker arriving by lorry should be detained pending a screening interview (ii) failed to carry out reviews published in guidance at intervals of 7, 14, 21 and 28 days of detention while C was detained subject to the unpublished presumption and/or the lorry drop process guidance for the purpose of carrying out a screening interview and (iii) delayed carrying out the screening interview for 32 days which was unreasonable. C claimed that the delay breached EIG paragraph 55.1.3 (stating that detention must be used for the shortest period necessary), article 5 and Hardial Singh.

The SSHD conceded that the officials involved wrongly applied a presumption in favour of detention in breach of Chapter 55.3 EIG (Decision to detain (excluding pre-decision fast track and CCD cases), containing a presumption in favour of temporary admission or release, and that that the detention was unlawful because of failure to carry out detention reviews in accordance with the policy. (She maintained that these violations of C’s rights could only result in nominal damages.)

But the Court found that C’s detention prior to his screening interview had not been unlawful under the Hardial Singh principles. Although there had been an administrative delay in conducting the interview, he was being detained to decide whether leave to enter should be granted or refused [157]. C was assessed as having a suicide risk and was not accepted at Oakington and he had to be taken to Colnbrook instead. Based on 173 asylum cases, the national average between referral and screening was 6 days.

C’s initial screening interview was set up within 4 days of the file’s arrival at Colnbrook but the interview’s completion did not result in his release. This confirmed that he was not being detained solely for the purpose of conducting the screening interview [159].

Lang J noted that detention was maintained with the purpose of deciding whether to grant or refuse C leave to enter and that in the circumstances of his case detention was reasonably necessary to achieve that purpose. Ultimately, her Ladyship also added something that might soothe the SSHD:

[160] … In my view, the Defendant acted with reasonable diligence and expedition. I do not consider that the delay in transferring the file, and the failure to meet the benchmark for conducting a screening interview, were sufficiently serious failings so as to justify a finding that detention was unlawful on Hardial Singh grounds. For the same reasons, the length of detention did not breach Article 5, as it did not “exceed that reasonably required for the purpose pursued” (Saadi v UK (2008) 47 EHRR 17 at [74]) nor did it breach paragraph EIG 55.1.3.

About Asad Ali Khan, BA, MSc, MA, LL.B (Hons), LL.M

Senior Partner, Khan & Co, Barristers-at-Law
This entry was posted in Asylum, Children, Detention, Human Rights Act, Iran, s 55 BCIA, UKSC and tagged , , , , . Bookmark the permalink.

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