BF (Eritrea) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Underhill,Lord Justice Simon,Lord Justice Baker |
| Judgment Date | 23 May 2019 |
| Neutral Citation | [2019] EWCA Civ 872 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C2/2017/2550 |
| Date | 23 May 2019 |
and
[2019] EWCA Civ 872
Lord Justice Underhill
(Vice-President of the Court of Appeal (Civil Division))
Lord Justice Simon
and
Lord Justice Baker
Case No: C2/2017/2550
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM Upper Tribunal (Immigration and Asylum Chamber)
Judge Storey
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Richard Hermer QC and Mr Chris Buttler (instructed by Scott-Moncrieff & Associates Ltd) for the Appellant
Mr James Strachan QC and Ms Deok Joo Rhee QC (instructed by the Treasury Solicitor) for the Respondent
Mr Martin Chamberlain QC (instructed by the Commission) for the Intervener
Hearing dates: 19 th & 20 th December 2018
Approved Judgment
INTRODUCTION
The Appellant is a national of Eritrea. On 11 March 2014 he presented himself to police at Tunbridge Wells. He told them that he had arrived in the UK earlier that day in the back of a lorry. He said his date of birth was 15 February 1998, in which case he would have been aged 16. He said that he wanted to claim asylum. He was seen by an assistant immigration officer and a chief immigration officer, both of whom believed that he was substantially over 18: the chief immigration officer described his physical appearance as being that of “an adult in his mid-twenties”. EURODAC inquiries revealed that he had previously claimed asylum in Italy, having arrived on Lampedusa in June 2013.
The Appellant was held in immigration detention until 11 September 2014, and again from 7 January to 31 March 2015, pending attempts to return him to Italy under the Dublin III Regulation. The Italian authorities confirmed that their records showed that he had declared to them that his date of birth was 15 February 1988, in which case he would have been 26, and they were accordingly willing to accept his return.
However, the Appellant continued to claim that he was a minor, and he was not removed. Formal age assessments were conducted by Newport City Council, who were responsible for his care under the Children Act 1989 if he was indeed a minor, in February and March 2015. In both he was found to be an adult. But a further assessment in September 2015, carried out by two independent social workers instructed by Newport, found his date of birth to be as claimed by him on arrival, i.e. 15 February 1998. That date was accepted by the Council. It has also been accepted by the Home Office as determinative of how he should be treated thenceforward for immigration purposes; but that acceptance is qualified as I explain at para. 6 below.
It has for many years been contrary to Home Office policy to detain unaccompanied asylum-seeking children (“UASCs”), subject to some very limited exceptions; and since 28 July 2014 it has been positively unlawful as a result of amendments to Schedule 2 to the Immigration Act 1971 effected by the Immigration Act 2014. Both prior to and following those amendments the Secretary of State has given guidance to immigration officers about how, in that context, to approach claims by asylum-seekers that they are under 18. Chapter 55 of the Enforcement Instructions and Guidance (“the EIG”) is headed “Detention and Temporary Release”. At the time of the Appellant's detention paragraph 55.9.3.1 1 provided that claims to be aged under 18 should be accepted unless the case satisfied one of four specified criteria. I set out the relevant parts of the paragraph at paras. 18–20 below. For present purposes it is enough to note that criterion C is that:
“their physical appearance/demeanour very strongly suggests that they are significantly over 18 years of age and no other credible evidence exists to the contrary [emphasis in original]”.
It was on that criterion that the decision to detain the Appellant was based.
These proceedings originated on 20 June 2014, in order to procure the Appellant's release from detention on the basis that he was a child, and for damages; it appears, though we have not seen the original grounds, that a general challenge was also made to the lawfulness of paragraph 55.9.3.1. They have had a complicated history, but all that matters for present purposes is that in October 2016 this Court gave the Appellant permission to apply for judicial review on a single ground, namely that what is characterised at para. 3 of his Amended Grounds as a “published policy … that [the Secretary of State] may treat a person claiming to be a child as an adult if immigration officials think that he or she very strongly looks significantly over 18” is unlawful: the neutral citation for the judgment is [2016] EWCA Civ 1113. The relief sought in the pleading is a declaration that that policy be declared unlawful and that its published embodiment in criterion C under paragraph 55.9.3.1 be quashed.
That issue is unrelated to the facts of the Appellant's particular case. Before us both parties sought to rely on different aspects of those facts as illustrating points relevant to the general issue, but we did not find this helpful and it is unnecessary for us to resolve the various points of dispute about how he was treated. I understand that a claim for compensation for unlawful detention may be being pursued in other proceedings, and the Home Office has made it clear that its acceptance of the Appellant's claimed age for some purposes does not involve any concession for the purpose of any such claim (which will not in any event be affected by anything that we decide, for the reason given at para. 11 below).
The issue for which permission was given was heard in the Upper Tribunal (Immigration and Asylum Chamber) by UTJ Storey on 24 May 2017. By a judgment promulgated on 1 August 2017 he dismissed the claim. This is an appeal against that decision, by permission of Hickinbottom LJ granted on 6 August 2018.
The Appellant was represented before us by Mr Richard Hermer QC and Mr Chris Buttler, and the Secretary of State by Mr James Strachan QC and Ms Deok Joo Rhee QC. The Equality and Human Rights Commission was given permission to intervene, as it did in the Tribunal, and was represented by Mr Martin Chamberlain QC.
THE BACKGROUND LAW
STATUTORY PROVISION
I should start by setting out the relevant terms of section 55 of the Borders, Citizenship and Immigration Act 2009, which is the backdrop to the issues in this case. They read:
“(1) The Secretary of State must make arrangements for ensuring that—
(a) the functions mentioned in subsection (2) are discharged having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom, and
(b) ….
(2) The functions referred to in subsection (1) are —
(a) any function of the Secretary of State in relation to immigration, asylum or nationality;
(b) any function conferred by or by virtue of the Immigration Acts on an immigration officer;
(c)-(d) …
(3) A person exercising any of those functions must, in exercising the function, have regard to any guidance given to the person by the Secretary of State for the purpose of subsection (1).
(4)-(5) …
(6) In this section —
“children” means persons who are under the age of 18;
(7)-(8) …”
The power to detain persons pending a removal decision is conferred by paragraph 16 (2) of Schedule 2 to the 1971 Act. Prior to 28 July 2014 the Act contained no special provision as regards minors, but with effect from that date a new sub-paragraph (2A) was inserted by the 2014 Act, as follows:
“But the detention of an unaccompanied child under sub-paragraph (2) is subject to paragraph 18B.”
Paragraph 18B reads (so far as material):
“(1) Where a person detained under paragraph 16 (2) is an unaccompanied child, the only place where the child may be detained is a short-term holding facility, except where —
(a) the child is being transferred to or from a short-term holding facility, or
(b) sub-paragraph (3) of paragraph 18 applies.
(2) An unaccompanied child may be detained under paragraph 16
(2) in a short-term holding facility for a maximum period of 24 hours, and only for so long as the following two conditions are met.
(3) The first condition is that —
(a) directions are in force that require the child to be removed from the short-term holding facility within the relevant 24 hour period, or
(b) a decision on whether or not to give directions is likely to result in such directions.
(4) The second condition is that the immigration officer under whose authority the child is being detained reasonably believes that the child will be removed from the short-term holding facility within the relevant 24 hour period in accordance with those directions.
(5)–(6) …
(7) In this paragraph —
…
“short-term holding facility” has the same meaning as in Part 8 of the Immigration and Asylum Act 1999;
“unaccompanied child” means a person —
(a) who is under the age of 18, and
(b) who is not accompanied (whilst in detention) by his or her parent or another individual who has care of him or her.”
I need not set out the definition of “short-term holding facility”. (Paragraph 18 (3), referred to in paragraph 18B (1), deals with transit arrangements.)
In R (AA (Afghanistan)) v Secretary of State for the Home Department [2013] UKSC 49, [2013] 1 WLR 2224, the Supreme Court held that the detention of a child who at the time was reasonably believed to be an adult did not constitute a breach of section 55 of the 2009 Act. But that was decided prior to the changes to Schedule 2 of the 1971 Act effected by the 2014 Act; and in R (Ali) v Secretary of State for the Home Department [2017] EWCA Civ 138, [2017] 1 WLR 2894 2, this Court held that paragraph 18B (2) prohibited the detention of a person who was eventually determined by a court or tribunal to be a child irrespective of...
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