R AA v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Wilson,Lord Carnwath,Lord Toulson,Lord Neuberger,Lord Clarke |
| Judgment Date | 10 July 2013 |
| Neutral Citation | [2013] UKSC 49 |
| Date | 10 July 2013 |
| Court | Supreme Court |
[2013] UKSC 49
Lord Neuberger, President
Lord Clarke
Lord Wilson
Lord Carnwath
Lord Toulson
Appellant
Stephen Knafler QC
Shu Shin Luh
(Instructed by SouthWest Law)
Respondent
Robin Tam QC
Susan Chan
(Instructed by Treasury Solicitor)
Heard on 7 and 8 May 2013
Lord Toulson (with whom Lord Neuberger, Lord Clarke and Lord Wilson agree)
The Immigration Act 1971, Schedule 2, paragraph 16(2) ("paragraph 16"), gives power to immigration officers acting on behalf of the Secretary of State to detain a person if there is reasonable ground to suspect that he is liable to be removed as an illegal entrant, pending a decision whether to give removal directions or the implementation of removal directions.
Section 55 of the Borders, Citizenship and Immigration Act 2009 ("section 55") imposes duties regarding the welfare of children on the Secretary of State and on immigration officers in all immigration matters.
The issue on this appeal is the effect of section 55 on the legality of the appellant's detention under paragraph 16 over a period of 13 days. At the time of the detention the Secretary of State acted in the mistaken but reasonable belief that he was aged over 18. It is now an agreed fact that he was born on 1 February 1993 and so was aged 17. If his true age had been known he would not have been detained, because his detention would have been contrary to the Secretary of State's policy in relation to minors. The appellant's case is that the fact of his age made his detention unlawful on the proper construction of section 55, and that the Secretary of State's reasonable belief that he was over 18 is no defence to his claim.
The appellant was born in Afghanistan. He arrived in the United Kingdom on 8 October 2008, concealed in a lorry. He was caught and arrested. He said that he was aged 14 and claimed asylum. On the next day an age assessment was carried out by social workers from the children's services department of Hampshire County Council ("Hampshire"). They concluded that he was over 19 and so reported to the Secretary of State. Thereafter the appellant was granted temporary admission and released from immigration detention.
On 6 November 2008 the Secretary of State refused the appellant's asylum claim and made a decision to remove him as an illegal entrant. On 1 March 2010 the First Tier Tribunal (Immigration and Asylum Chamber) dismissed the appeal. In his determination the immigration judge found that he was satisfied that the appellant was aged over 18.
In April 2010 solicitors for the appellant wrote to the Secretary of State stating that they were instructed to challenge Hampshire's age assessment, which they did not consider had complied with the guidance on the conduct of age assessments given by Stanley Burnton J in R (B) v Merton London Borough Council [2003] EWHC 1689 (Admin), [2003] 4 All ER 280. The solicitors also asked Hampshire to re-assess the appellant's age. Since the appellant was then living in the Cardiff area, Hampshire suggested that Cardiff City Council ("Cardiff") should be asked to carry out a re-assessment. Cardiff agreed but there was a period of delay.
On 7 July 2010 the appellant was detained under paragraph 16. On the same day the Secretary of State set directions for his removal to Afghanistan on 20 July 2010.
On 20 July 2010, in the High Court at Cardiff, the appellant issued a claim form for judicial review against Cardiff, Hampshire and the Secretary of State. Among other forms of relief the appellant claimed:
i) an order quashing Hampshire's age assessment carried out on 9 October 2008;
ii) an order requiring Cardiff to carry out an age assessment;
iii) an order requiring Cardiff to provide suitable age-appropriate support and accommodation to the appellant, pursuant to the Children Act 1989, pending completion of the age assessment and the judicial review proceedings;
iv) a declaration that the Secretary of State's detention of the appellant and issue of removal directions were unlawful;
v) an order staying the implementation of the removal directions until further order;
vi) damages.
On the same day Judge Bidder QC, sitting as a deputy High Court judge, granted temporary relief to the appellant. He ordered that his removal should be stayed, pending the outcome of his application for permission for judicial review, and that in the meantime he should be released from immigration detention and provided with support and accommodation by Cardiff.
On 6 August 2010 Cardiff notified the Secretary of State that its social services asylum team had carried out a fresh assessment in accordance with the Merton guidelines and accepted that his date of birth was 1 February 1993. The Secretary of State in turn accepted the fresh assessment.
The appellant's application for permission to apply for judicial review against Hampshire and Cardiff was withdrawn by consent on terms that Cardiff agreed to treat him as a child under the Children Act 1989, so providing him with accommodation under section 20 and associated support under sections 22 and 23.
The appellant continued with his application for permission to apply for judicial review against the Secretary of State. On 7 March 2011 Blake J dismissed the application after an oral hearing: [2011] EWHC 1216 (Admin). He described the appellant's argument as intermingling matters of policy with the requirements of the statutory regime for detention. Paragraph 16 permitted the detention of children if the statutory conditions were met, but there were strong policy reasons against such detention unless it was necessary in all the circumstances. He continued at para 13:
"Insofar as the applicant relies upon policy, then in my judgment the application of policy depends upon the assessment of facts made by the decision maker at the material time. At the time this applicant was detained the Secretary of State knew that Hampshire had assessed him to be over 18 in an assessment which they claimed was Merton-compliant. Secondly he knew that the immigration judge, acting on all material available to him in February 2010, had reached a similar conclusion not entirely dependant upon the approach of Hampshire. Thirdly, no discrete submissions had been made to the Secretary of State as to why the immigration judge and/or Hampshire assessment was wrong in fact."
He held that in the circumstances the Secretary of State had no reason to have reached a conclusion contrary to that of the other authorities.
The appellant applied for permission to appeal to the Court of Appeal. After considering the application on paper, on 14 June 2011 Sir Richard Buxton granted the appellant limited permission to apply for judicial review, and directed that the case should be retained in the Court of Appeal, on the following ground:
"It is … arguable that, on the basis of the approach of the Supreme Court in Croydon, the lawfulness of the Secretary of State's decision should be assessed on the basis that, whatever the understanding at the time, the applicant was a child and should have been treated as such, including not being removed from the United Kingdom and therefore not being detained pending removal."
The reference to Croydon was to R (A) v Croydon London Borough Council [2009] UKSC 8, [2009] 1 WLR 2557. Sir Richard Buxton agreed with Blake J that it was not arguable that the Secretary of State had acted unreasonably in proceeding on the basis that the appellant was over 18, and he refused permission to apply for judicial review on that wider ground. A subsequent oral application by the appellant to widen the grounds of challenge was refused by Arden LJ. His substantive claim was dismissed by the full court for reasons given in a judgment by Arden LJ, with which Davis LJ and Baron J agreed: [2012] EWCA Civ 1383.
Section 55 provides:
"(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) any services provided by another person pursuant to arrangements which are made by the Secretary of State and relate to the discharge of a function mentioned in subsection (2) are provided having regard to that need.
(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; …
(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).
…
(6) In this section
'Children' means persons who are under the age of 18; …"
Section 55 came into force on 2 November 2009. In the same month guidance was published by the Home Office, jointly with the Department for Children, Schools and Families, under the title "Every Child Matters". Its stated object was to set out the key arrangements for safeguarding and promoting the welfare of children, as they apply both generally to public bodies who deal with children and specifically to the UK Border Agency. Its language was the language of general principles rather than particular rules. Among the general principles it stated:
"2.6 The UK Border Agency acknowledges the status and importance of the following:
The European Convention for the Protection of Human Rights and Fundamental Freedoms, the International Covenant on Civil and Political Rights, the International Covenant on...
To continue reading
Request your trial
- CO/2899/2015 R Khaled and Others v Secretary of State for the Home Department
-
R AA v Secretary of State for the Home Department Wolverhampton City Council (Interested Party)
...construed it objectively as a matter of fact. Mr. McKendrick relies on the later case of R (AA (Afghanistan)) v Secretary of State [2013] UKSC 49; [2013] 1WLR 2224 ("the Afghanistan case") in which it was held that the word "child" in s.55 of the Borders Citizenship and Immigration Act 2009......
-
R DK v Secretary of State for the Home Department
...[2009] EWHC 2506 at§ 105 upheld in MH [2011] EWCA Civ. 1112; Shehasdeh [2013] CSOH 139; AA(Afghanistan) [2012] EWCA Civ. 1383 and [2013] UKSC 49). 205 For these reasons, the Claimant's proposition that public law errors by the detaining authority may be 'imputed' to the Secretary of State i......
- R (TN (Afghanistan)) v Secretary of State for the Home Department MA (Afghanistan) v Same