R K v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Phillips |
| Judgment Date | 15 October 2013 |
| Neutral Citation | [2013] EWHC 3738 (Admin) |
| Docket Number | CO/15246/2013 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 15 October 2013 |
[2013] EWHC 3738 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Phillips
CO/15246/2013
Mr C Buttler (instructed by Maxwell Gillott) appeared on behalf of the Claimant
Mr Singh (Solicitor Advocate) (instructed by Treasury Solicitor) appeared on behalf of the Defendant
This is an application for an interim order by the claimant, who is to be known as ZK, against the Secretary of State for the Home Department for his release from detention. The claimant is an Afghan national who claims to be under 16 years of age but has been assessed by Sheffield Children and Young Person Services as being 18 years old. It is on the basis of him being alleged to be over 18 that the defendant is currently detaining him.
The history of the matter is that the claimant travelled to this country and claimed asylum. He has been detained since the middle of August and the age assessment was carried out on 15 August by two social workers in an interview. The claimant's claim for asylum was considered by the defendant and rejected on 29 August. His appeal to the First-tier tribunal was rejected on 19 September 2013. However, on 1 October the Upper Tribunal granted permission to appeal on the ground that the First-tier tribunal had arguably made an error in assessing the claimant's credibility without proper consideration of the criticisms which were made of the age assessment. Those criticisms are that it is not a Merton compliant assessment in a number of respects but in particular that the claimant was not given the opportunity of having an independent adult present. Secondly, that the provisional conclusions of the social workers were not put to the claimant to give him an opportunity to answer them. It is also said that the age assessment was flawed because the social workers proceeded primarily on the basis of the physical appearance of the claimant.
The law in relation to the detention of persons who claim to be minors has been considered in a number of authorities, including J, R(on the application of) v Secretary of State for the Home Department [2011] EWHC 3073 (Admin), a decision of Coulson J; R(HXT) v the Secretary of State for the Home Department [2013] EWHC 1962 (QB), a decision of His Honour Judge Burrell QC; and AAM(A child) v Secretary of State for the Home Department [2012] EWHC 2567 QB, a decision of Lang J. I should record that the defendant is not represented today by counsel but has been present through the person of Mr Singh from the Treasury Solicitor, and that is notwithstanding the fact that it was on 11 October, 4 days ago, that Mitting J directed that this hearing take place today. What emerges from those decisions, and does not appear to be disputed by the defendant, is that it is clear that the Secretary of State has power to detain pending immigration proceedings of this nature but that the defendant is bound by her own policy with regards to children and the detention of children, set out in Chapter 55 of the defendant's Enforcement Instructions and Guidance, headed "Detention and Temporary...
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