Ali, R (on the application of) v The Secretary of State for the Home Department & Anor, Court of Appeal - Civil Division, March 09, 2017, [2017] EWCA Civ 138

Issuing Organization:Civil Division
Actores:Ali, R (on the application of) v The Secretary of State for the Home Department & Anor
Resolution Date:March 09, 2017
 
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Case No: C4/2016/2787

Neutral Citation Number: [2017] EWCA Civ 138

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM

SIR STEPHEN SILBER SITTING AS A JUDGE OF THE HIGH COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 09/03/2017

Before:

LORD JUSTICE DAVIS

LORD JUSTICE UNDERHILL

and

LORD JUSTICE LINDBLOM

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Between:

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James Strachan QC and Jennifer Thelen (instructed by the Government Legal Department) for the Appellant

Ian Wise QC and Michael Armitage (instructed by Bhatia Best) for the Respondent

Written submissions (prepared by Christopher Buttler), were put in on behalf of the Equality and Human Rights Commission as intervener)

Hearing date: 23 February 2017

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JudgmentLord Justice Davis:

Introduction

  1. This appeal relates to the right of the Secretary of State for the Home Department to detain, pending potential removal, unaccompanied children seeking to enter or remain in the United Kingdom. It involves a point of interpretation of provisions contained in Schedule 2 to the Immigration Act 1971 as amended by s. 5 of the Immigration Act 2014. The essential question, put broadly, comes to this. Will such detention have been lawful where a detainee is on reasonable grounds assessed at the time of detention to be an adult over the age of 18 but when it later transpires that, in point of fact, the detainee was a child under the age of 18?

  2. The judge, Sir Stephen Silber sitting as a judge of the High Court, decided, by a detailed and thorough reserved judgment, in favour of the claimant on this issue: see [2016] EWCH 1453 (Admin). He granted a declaration that the claimant had been unlawfully detained for an identified period and ordered the Secretary of State to pay damages caused by the wrongful detention, to be assessed.

  3. This case has a wider importance for other cases. The judge himself granted permission to appeal.

  4. Before us the Secretary of State was represented by Mr James Strachan QC leading Ms Jennifer Thelen. The claimant was represented by Mr Ian Wise QC leading Mr Michael Armitage. I would like to acknowledge the thoroughness and care with which their arguments, written and oral, were presented to us. Detailed written submissions were also put in by the Equality and Human Rights Commission, as intervener.

    Facts

  5. The background facts are not in dispute and can be shortly summarised.

  6. The claimant is Sudanese. He entered the United Kingdom at Dover by hiding in a lorry travelling from Calais on 19 July 2014. He was unaccompanied. He immediately claimed asylum and participated in a screening interview and Biometric Residence Permit application on that date.

  7. In his interview he claimed to be 17, although his date of birth was entered on the form as 1 January 1996 (that is, over the age of 18 at date of interview). He was thereafter placed in detention: the legality of that particular period of detention is not challenged in these proceedings.

  8. In view of an issue having been raised as to age, that matter was considered. By letter dated 19 July 2014 the Chief Immigration Officer indicated that the claimant had produced no satisfactory evidence to substantiate his claim to be under 18 and that ``your physical appearance/demeanour very strongly suggests that you are significantly over 18 years of age''. The letter went on to state that he would be treated as an adult. But it also indicated that he was not precluded from approaching a local authority for it to undertake its own age assessment: which, if obtained, the Home Office would then take into account in reviewing the matter.

  9. Further enquiries were made. It transpired that Italy had been the claimant's initial point of entry into the European Union; and on 25 July 2014 Italy accepted that it was the Member State responsible for the claimant's asylum claim.

  10. On 6 August 2014 the Secretary of State certified the asylum claim on ``safe third country'' grounds. Removal directions were set. However these directions were cancelled in the light of two judicial review applications brought by the claimant.

  11. Permission to apply was refused in respect of both applications, on 4 November 2014 in the High Court and 12 January 2015 in the Upper Tribunal respectively. On the first refusal, the single judge stated that the prior detention was lawful and there was ``nothing unlawful about the Defendant's conclusion that the claimant was over 18''. The second, and parallel, claim brought by the claimant was by reference to the alleged treatment he would receive if returned to Italy. That was refused by the Upper Tribunal.

  12. The claimant had in the interim been released from detention. In the light of the failed applications, fresh removal directions were set. He was then detained again, from 17 February 2015 until 1 March 2015. It was not in dispute before us that the Home Office as at 17 February 2015 had reasonable grounds for suspecting (and indeed believing) that the claimant was an adult.

  13. In fact the claimant had very recently been the subject of a Merton compliant age assessment by Wolverhampton City Council undertaken on 6 February 2015 (although it seems he did not mention this when detained on 17 February 2015). The written age assessment report, dated 16 February 2015, was provided to the Home Office by the claimant's solicitors on the morning of 23 February 2015. The claimant was described in the assessment report as around 5 feet 6 inches in height, with smooth skin and a limited amount of facial hair and ``presenting as shy and timid''. The assessment of the social workers records the claimant saying that he did not know his birth date but that his brother had told him (when he was in Libya over 3½ years earlier) that he was then 12 years old. The view was taken, among other things, that his appearance suggested that he was at ``mid to late adolescent stage'' with the demeanour ``typical of a teenager''. The social workers in terms stated that the assessment process was not an exact one and there could be a five year error either way. The conclusion of the assessment was that the claimant was ``a child of the approximate age of 16/17 years old''.

  14. On receipt and consideration of this assessment the Secretary of State ultimately released the claimant from detention on 1 March 2015.

  15. It should be noted that the judge accepted the claimant's argument that he should at least have been released from detention by the end of 23 February 2015. There is no appeal from that part of decision. The appeal is solely as to the decision that the period of detention from 17 February to 23 February 2015 was also unlawful.

  16. I should add that it was indicated to us that, for the purposes of these proceedings, it was accepted that the claimant was indeed under the age of 18 in February 2015. We were also told that the claimant has since been granted 2 years' leave to remain.

    The law and related policy

  17. Before its amendment by the 2014 Act, the 1971 Act, which conferred the power on the executive to detain persons, pending potential removal, for the purposes of immigration control, had contained no specific provisions in Schedule 2 with regard to detention of unaccompanied children. That changed with the amendments introduced by the 2014 Act with effect from 28 July...

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