AAM (a child acting by his litigation friend, Francesco Jeff) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | THE HONOURABLE MRS JUSTICE LANG DBE,Mrs Justice Lang |
| Judgment Date | 27 September 2012 |
| Neutral Citation | [2012] EWHC 2567 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: TLQ/12/0252 |
| Date | 27 September 2012 |
[2012] EWHC 2567 (QB)
The Honourable Mrs Justice Lang DBE
Case No: TLQ/12/0252
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Christopher Buttler (instructed by Steel & Shamash) for the Claimant
Holly Stout (instructed by the Treasury Solicitor) for the Defendant
Hearing dates: 21, 22, 25 June and 26 July
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
The Claimant seeks damages for false imprisonment, and breach of the Human Rights Act 1998, in respect of his detention by the Defendant between 10 February and 25 March 2010, a total of 44 days.
The Defendant has conceded that the whole of the detention was unlawful because local immigration officers unlawfully applied a presumption that an asylum seeker who had arrived clandestinely by lorry should be detained, and furthermore there was no evidence that detention reviews had been conducted in accordance with the Defendant's policy. However, the Defendant contends that only nominal damages should be awarded, as detention was lawful and justifiable on other grounds. This judgment addresses liability only.
Facts
The Claimant is a national of Iran, of Kurdish ethnicity. He was born on 1 July 1994.
He left Iran at an unknown date, and arrived in the UK in February 2010. The finger print database revealed that, before he arrived in the UK, he was arrested and finger printed at Calais, France on 18 December 2009 and Dunkirk on 24 December 2009. Apparently he did not claim asylum in France.
According to the Claimant's account, he arrived in the UK on the back of a lorry, at night, on or about 8 February 2010. He had no money and nowhere to go. Eventually, on the evening of 10 February, he went into a petrol station on the motorway, at Fradley, Staffordshire, asking for food. The shop assistant called the police who took him to Tamworth Police Station.
The Claimant told the police, using an interpreter, that he was 15 years old and that he came from Iran. He was detained in custody and seen by a doctor. The police notified the Social Services department of Staffordshire County Council ("the Council").
On the following day, 11 February, the Council sent Ms Joanne Barnard, a social worker, to conduct an age assessment of the Claimant at the police station. She was accompanied by a Kurdish interpreter and a colleague, Mr Rewel Gomez, a family support worker. His role was to provide support to Ms Barnard, but not to carry out the assessment with her, as he was not qualified to do so.
Ms Barnard used the standard pro forma template for age assessments, which required her to assess age under the headings of "Physical appearance, demeanour"; "Interaction of person during assessment"; "Social history and family composition"; "Developmental consideration"; "Education"; "Independent/self-care skills"; "Health and medical assessment" and "Information from documentation and other sources".
Under "Health and medical assessment" she stated:
"[A] was seen by Doctor Siddigui at 23.15 p.m. last night whilst detained at Tamworth Police Station who advised of [A] having behaviour issues, being angry and concerns that [A] may self harm. [A] had leg surgery and also not long ago had a chest infection. Doctor Siddigui age assessment put [A] at 23–25 years of age."
Her conclusion was as follows:
"[A] states that he is 15 years of age but the assessment completed taking into account his physical appearance which suggests that he is over the age of 18 (facial hair, complexion, aged, worn look etc.)
"[A] has no documentation at all to provide us with an accurate date of birth. He has advised me that he is from a village in Iran called Torman.
[A] stated that this was funded by his mother giving the family home to an agent who arranged [A] transport and route to the UK was via Iran – Turkey – UK via a lorry which took approx 20 days.
[A] doesn't know any further details when asked he just said that it was very cold and that he was very hungry.
[A] states that tried earlier this year to get into the UK and that he had been released after they took his finger prints.
[A] knows no-one in the UK and is travelling alone.
Based on the assessment, the client's age is 18 years+."
The assessment was signed by Ms Barnard. She also prepared a single sheet summary, stating that the Claimant had been assessed as "18 – 20 years". This recorded both she and Mr Gomez were "assessing workers" which conflicted with the full report, which only referred to Ms Barnard as the assessing worker.
I heard evidence from Ms Amanda Noons who is an Immigration Officer with the United Kingdom Border Agency (UKBA), working as part of the Local Immigration Team in Staffordshire. She has been an Immigration Office for 11 years and has dealt with a number of age disputed cases during that time.
Ms Noons' evidence was that, in line with usual practice and procedures, the police contact local social services in the first instance when they detain an asylum seeker who claims to be under the age of 18 years, Local Immigration Team Staffordshire has an agreement with Staffordshire Social Services that Social Services will conduct age assessments in all cases when an asylum seeker claims to be under 18 years old.
On 11 February 2010 Ms Noons received a telephone call from Staffordshire Police informing her that the Claimant had been taken into custody on the previous day; that he had been arrested by the Police on suspicion of illegal entry into the United Kingdom, and had been conveyed to Tamworth Police Station where he was being detained. During the custody booking in process the Claimant said he was aged 15 years and the police therefore notified social services.
On the afternoon of 11 February, Ms Noons received Ms Barnard's summary report by fax. Shortly afterwards, she received the full assessment by fax.
In cross-examination, Ms Noons said she had proceeded on the assumption that the age assessment was correct, and that it was "Merton compliant". It appeared to be in the correct form. Although she was aware of the requirement that assessments should be "Merton compliant", she did not know what criteria had to be met in order for an assessment to be "Merton compliant". She had never seen the Merton judgment. In her view, it was the local authority's job to ensure that the assessment was Merton-compliant and she did not scrutinise the assessment to satisfy herself that it was. She became aware subsequently that the local authority conceded it had not been Merton-compliant, and if she had known this at the time, she would not have relied upon it.
In re-examination, Ms Noons said she looked at the full age assessment report to satisfy herself that the relevant questions had been posed and answered and that the social worker had conducted a proper assessment. She did not consider issues such as whether an appropriate adult should have been present, or whether the assessment had been carried out by at least two trained social workers, because she was not aware of the Merton criteria, and she did not consider it was her role to check whether the local authority had complied with the Merton criteria.
On 11 February, Ms Noons completed a "Screening Officer's Report Disputed Age Contention" in respect of the Claimant. She ticked the box to confirm that:
"A full "Merton-compliant" (i.e. not that completed by Emergency Duty teams) social services assessment is available stating that they are 18 or over."
The report recorded that the Claimant maintained that he was 15 years old.
On 11 February, Ms Noons sent a pro forma letter to the Claimant stating "[y]ou have received a full "Merton-compliant" age assessment by Social Services stating that you are 18 years of age or over" and "in the absence of any credible evidence to the contrary, the Secretary of State did not accept you are a minor and you will be treated as an adult".
The IS Minute Sheet, completed by Ms Noons on 11 February 2010, provides a convenient summary of what happened next:
"Subject was encountered by Staffs Police on 10/02/10 at a service station at Fradley, Staffs. He could not speak English, had no I.D, no money and appeared in a dishevelled and disoriented state. He was arrested on suspicion of illegal entry to the UK and taken to Tamworth Police Station. On booking in he claimed to be aged 15 years. Social Services were called to attend to conduct an age assessment. Joanne Barnard, Social worker, attended and conducted a Merton compliant assessment and deemed the subject to be over 18, between the ages of 18 and 20 years.
Subject served papers as a de facto clandestine illegal entrant on authority of CIO Sean Flaherty. Also served with an IS97M.
CIO authorised subject's detention pending referral to Oakington for the lorry drop process.
I spoke to Roy at Oakington who has accepted the subject and will arrange a movement order for tomorrow."
Full Merton Compliant age assessment received from Social Services and is on file.
Actions:
2. hr det rev (to be conducted by Oakington)
Send port file to Oakington by special delivery"
Ms Noons said that she obtained the authority of the Chief Immigration Officer, Mr Sean Flaherty to detain the Claimant, and Mr Flaherty also confirmed this. The basis upon which authority was sought, and given, is set out in the documents summarised below.
Once authority had been obtained, Ms Noons completed the following forms, all on 11 February.
Form IS.151A:...
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