R TN v Secretary of State for the Home Department

THE DEPUTY JUDGE:

This case came before me with initially three judicial review claims. The first claim was that the claimant challenged the lawfulness of his detention by the Secretary of State for the Home Department under his immigration powers. Permission was granted in relation to that claim on 1 October 2019 by HHJ Judge Graham Wood QC, sitting as a Deputy High Court Judge. Secondly, the claimant sought permission to challenge the decision on 18 October 2019 by Hillingdon Borough Council not to conduct a reassessment of the claimant's age and, thirdly, the claimant sought permission to challenge the decision on 14 November 2019 of a decision of Durham County Council not to conduct an age assessment and not to provide accommodation and support pending that outcome. In fact, the sole issue in dispute before me was whether the claimant is entitled to a declaration that he was unlawfully detained from 12 March 2019 – 18 November 2019 and entitled to recover damages in consequence. The second and third claim were resolved by consent orders.

The claimant's application to seek permission to amend his grounds

The first issue that I have to consider was whether the claimant had permission to raise the submission based on R (on the application of Ali) v The Secretary of State for the Home Department & Anor [2017] 1 WLR 2894, [2017] EWCA Civ 138 (“ AA (Sudan)”). I indicated that it was for the claimant to seek permission to amend his grounds to add the challenge and that the amendment must be reduced to writing. Counsel for both parties agreed that the amendment could be made in terms of the challenge set out in para.5 of the claimant's skeleton argument, that the approach of the Court of Appeal in AA (Sudan) meant he was detained contrary to the provisions of statute which applied throughout his detention.

The defendant opposed the application to amend. He contended that he was significantly prejudiced and could not obtain information from the Durham County Council's age assessment on 18 December 2018, nor see whether the age assessment could be upheld by the Court. He also contended, in broad terms at least, that the amendment was unfair to the Secretary of State, and made various points about a decision of the criminal court to the effect that the claimant was an adult and of holding, at some point, that the assessment was Merton-compliant (I think that is a reference to the Hartlepool age assessment to which I shall return).

The claimant's counsel took me to the consent order of 23 January 2020 to the Durham case, in relation to which the Secretary of State consented to the order. This consent order is of some importance because it is commonplace in the Administrative Court (particularly in immigration cases) for judicial review proceedings to determine issues which post-date the original decision challenged in a claim form, because the nature of the case changes its shape over time. The defendant's counsel accepted that it was open to the Secretary of State to refuse to consent to the order made in January 2020 and to contest those proceedings: so that the issue of the lawfulness and effect of the Durham age assessment on 18 December 2019 could have been determined in the Durham proceedings. Counsel also accepted also that the lawfulness of the Durham age assessment required determination of a court at some point, and that the impact of the Durham age assessment on the lawfulness of the detention had to be determined as of the date of the court hearing itself, which was 11 February 2020. Counsel for the defendant further accepted that, if the claimant's submissions were correct, determination of his unlawfulness would apply from the moment he was detained by the Secretary of State in immigration detention.

In those circumstances, I asked the defendant's counsel if he would be prejudiced if I gave him the opportunity to advance such submissions as he wished to in relation to the AA (Sudan) issue. He stated he would not be prejudiced in those circumstances and I, in effect, allowed the amendment to be argued de bene esse. Having had the benefit of full argument on the issue, I have decided that it was not unfair to the defendant to allow the amendment. I have, therefore, granted the claimant permission to amend his claim and I have granted the claimant permission to pursue this challenge before me.

The factual background

The claimant says his date of birth was on 23 November 2003. In September 2017, he entered the United Kingdom and says he was taken into to care by the Warwickshire County Council, who sent him to live with foster carers. He claims to have been kidnapped from the foster parents and was required to perform forced labour in relation to cannabis cultivation. He was taken into police custody following a raid sometime in July 2018, and on 28 July 2018 was detained on remand in Her Majesty's Prison Durham.

On 28 July 2018 the claimant's age was assessed by Hartlepool Borough Council, although he was then in police custody. The Hartlepool age assessment concluded that the claimant was an adult with a date of birth of 23 November 1997 i.e. that he was 20 years of age rather than 14, as he alleged. However, the claimant alleges that the interview was not Merton-compliant. His counsel complains that the assessment was conducted in the police station that it relied on a telephone-interpreter; that it concluded that he was an adult on the basis that his physical appearance, demeanour, and presentation; that there were concerns about the claimant's credibility; and that there was no indication that adverse matters had been put to the claimant as they should have been.

In any event, on 2 August 2018, Hartlepool decided, having considered its age assessment, that the claimant was an adult, that the claimant was then 20, with his date of birth being in 1997. As a result, in August 2018, the District Judge decided in the Magistrates Court that the claimant was an adult. On 22 January 2019, the claimant was convicted and sentenced for one year and three months for offences connected to cannabis cultivation. On 2 February 2019, the claimant was served with a Stage 1 deportation letter that indicated he was subject to automatic deportation under s.33(5) of the Border Act 2007.

On 12 March 2019, the claimant was released from custody and immediately then held in immigration detention under Sch.3 para.2(2) of the Immigration Act at Dungavel IRC in Scotland. On 1 March 2019, he was transferred to Morton Hall IRC, Lincolnshire.

On 27 May 2019, the claimant told officers that, in fact, his date of birth was 23 November 2003 and provided the officer with an address of his foster carers and said he thought that his foster carers had the paperwork. The officer warned the claimant of the consequences of being untruthful, but the claimant maintained he was truthful, and was 16 years old. On 29 May 2019, there was a screening interview when the claimant gave his date of birth as 23 November 2003.

On the 10 June 2019 the claimant's solicitors wrote a pre-action letter to Hartlepool challenging the age assessment that Hartlepool had given. On 19 June 2019, Hartlepool indicated they would refuse to consider that claim because they said it was out of time. On 4 July 2019, the claimant's solicitors wrote to Lincolnshire County Council, claiming that he was a child whilst being detained at the IRC Morton Hall. Lincolnshire initially agreed to conduct a reassessment but then declined and said that the claimant's solicitors must liaise with Hartlepool.

On 22 July 2019, Lincolnshire indicated they were minded to conduct a further age assessment to avoid the costs of litigation. However, on 25 July 2019, the Secretary of State indicated he was not prepared to release the claimant to be age-assessed by Lincolnshire.

On 20 August 2019 the claimant lodged his first judicial review application against the Secretary of State for the Home Department. He was then moved to IRC Colnbrook, Hillingdon the same day, although those events had no connection. On 20 August 2019, the Secretary of State filed an acknowledgement of service. On a day between 16 – 19 September 2019, Hillingdon was asked to conduct an age reassessment, which it declined to do. On 1 October 2019 his HHJ Graham Wood QC, sitting as a Deputy High Court Judge, granted permission in respect of his first claim for an unlawful detention.

On 21 October 2019 the claimant lodged his...