Immigration – Detention – Minor

R (on the application of AA) v Secretary of State for the Home Department: Supreme Court: 10 July 2013

The appellant, an Afghan national, arrived in the UK concealed in a lorry. On his arrest, he said that he was aged 14 and claimed asylum. Local authority social workers carried out an age assessment and concluded that the appellant was aged over 19 (the original age assessment). That conclusion was reported to the respondent secretary of state. The appellant was granted temporary admission and released from immigration detention. The appellant's asylum claim was refused and the secretary of state made a decision to remove him as an illegal entrant.

The First-tier Tribunal (Immigration and Asylum Chamber) dismissed the appellant's appeal, the immigration judge being satisfied that he was aged over 18. The appellant's solicitors informed the secretary of state that they had been instructed to challenge the original age assessment, alleging that it had not been Merton compliant (R (on the application of B) v Merton London Borough Council [2003] 4 All ER 280). There was a period of delay in carrying out a fresh age assessment. Meanwhile, the appellant was detained under paragraph 16 of Sch 2 to the Immigration Act 1971 (paragraph 16) and removal directions were set. The appellant issued proceedings seeking to bring an application for judicial review. The appellant's removal was stayed pending the outcome of his application for permission for judicial review.

A fresh age assessment was carried out, which stated that it was in accordance with the Merton guidance, which accepted that the appellant was aged 17. That assessment was accepted by the secretary of state. The appellant, by consent, withdrew his application for permission to apply for judicial review on terms that the local authority agreed to treat him as a child under the Children Act 1989. The application for judicial review continued as against the secretary of state, but was dismissed ([2011] EWHC 1216 (Admin)).

The appellant was granted permission to appeal to the Court of Appeal, Civil Division, on the ground that it was arguable that, on the basis of the Supreme Court's approach in R (on the application of A) v Croydon London Borough Council; R (on the application of M) v Lambeth London Borough Council [2010] 1 All ER 469 (Croydon), the lawfulness of the secretary of state's decision should be assessed on the basis that, whatever the understanding at the time, the appellant had been a child and should have been treated as such, including not being removed from the UK and not being detained pending removal. The appeal was dismissed. The court found that the application of section 55 of the Borders, Citizenship and Immigration Act 2009 did not depend on whether the appellant had subsequently been found to be a child but on whether the statutory detention power had permitted his detention at the time it had taken place. The appellant's detention had been in accordance with those provisions. He had been in law an adult and, therefore, outside the reach of section 55 of the 2009 act at that time. The appellant appealed.

He submitted that, on the proper construction of section 55 of the 2009 act, the fact of his age had made his detention unlawful and the secretary of state's reasonable belief that he had been aged over 18 was no defence to his claim. Consideration was given to s 20 of the 1989 Act and article 5 of the European Convention on Human Rights (the ECHR) and article 3 of the United Nations Convention on the Rights of the Child (the UNCRC) and to the published policies and guidance 'Enforcement Instructions and Guidance' (see [19] of the judgment), 'Assessing Age' (see [22]-[24] of the judgment) and 'Every Child Matters'.The appeal would be dismissed.

Section 55 of the 2009 act and section 20 of the 1989 act contained the same definition of children, but their structure and language were very different. Under section 55, the secretary of state had a direct and a vicarious responsibility. She had a direct responsibility under section 55(1) for making arrangements for a specified purpose, namely, to see that immigration functions were discharged in a way which had regard to the need to safeguard and promote the welfare of children (section 55(1)). She had a vicarious responsibility for any failure by an immigration officer to have regard to the guidance given by the secretary of state or to the welfare principle (sections 55(3)). In order to safeguard and promote the welfare of children, the secretary of state had to establish proper systems for arriving at a reliable assessment of a person's age.

Section 55 of the 2009 act, on its natural construction, was not inconsistent with article 5 of the ECHR or article 3 of the UNCRC. The arrangements made by the secretary of state under section 55 included the published policies. The instructions in 'Assessing Age' were detailed and careful and compliant with the secretary of state's obligations under section 55(1) of the 2009 act (see [46]-[49] of the judgment).

In the instant case, there had been no breach of section 55 of the 2009 act. There was no basis for finding that there had been a failure by any official to follow the guidance in the 'Assessing Age' document. Therefore, the exercise of the detention power under para 16 had not been unlawful (see [48] of the judgment). AAM (a child acting by his litigation friend, FJ) v Secretary of State for the Home Department [2012] All ER (D) 175 (Sep) disapproved. Decision of Court of Appeal, Civil Division [2012] All ER (D) 296 (Oct) affirmed.

Stephen Knafler QC and Shu Shin Luh (instructed by South West Law) for the appellant; Robin Tam QC and Susan Chan (instructed by the Treasury Solicitor) for the secretary of state; Charlotte Hennessey Solicitor (non-practising).