VS v The Home Office
| Jurisdiction | England & Wales |
| Judge | Mr Simon Picken |
| Judgment Date | 22 July 2014 |
| Neutral Citation | [2014] EWHC 2483 (QB) |
| Docket Number | Case No: HQ13X04321 |
| Court | Queen's Bench Division |
| Date | 22 July 2014 |
[2014] EWHC 2483 (QB)
Mr Simon Picken QC
(sitting as a Deputy Judge of the High Court)
Case No: HQ13X04321
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Shu Shin Luh (instructed by Maxwell Gillott) for the Claimant.
William Hansen (instructed by The Treasury Solicitor) for the Defendant.
Hearing dates: 17, 18, 19 and 20 June 2014
APPROVED JUDGMENT
Mr Simon Picken QC:
Introduction
The Claimant, an Iranian national, who entered the United Kingdom on 2 July 2012 on the back of a lorry, claims damages for unlawful detention relating to two periods: the first on 2 July 2012 when the Claimant was detained by the Defendant for 7 1/2 hours before he was released into the care of Kent County Council's Children's Services ("Kent CS"); the second a period of twenty-five days, starting on 17 July 2012 and ending on 10 August 2012, when the Claimant was detained by the Defendant as a result of Kent CS having age-assessed him as an adult.
The Claimant claims, in summary:
(1) as regards the first period of detention, that he should have been referred to Kent CS immediately after his detention at 16.00 hours on 2 July 2012, alternatively soon after completion of the booking-in process at the Defendant's Dover Enforcement Unit (at, Miss Luh submits, 17.30 hours), alternatively at some point between the completion of the booking-in process and the start of the Claimant's interview at 18.35 hours, alternatively at some point during the Claimant's interview and, in any event, before a referral was actually made at 19.05/19.10 hours; and
(2) as regards the second period of detention, that his detention was unlawful throughout this period because the Defendant did not have in its possession a Merton-compliant age assessment and failed to exercise its own independent obligation to consider whether or not the age assessment from Kent CS which it did have was Merton-compliant, alternatively that his detention was unlawful from 26 or 31 July 2012 onwards when the Claimant provided the Defendant with fresh evidence demonstrating that he was a minor and not an adult (contrary to the age assessment carried out by Kent CS).
It was agreed by the parties that the question of damages should only be addressed after liability has been determined. Accordingly, this judgment is confined to that liability question alone.
The Facts
The facts are largely agreed, the parties having helpfully prepared an Agreed Summary of Facts. What follows is based on that document as well as on the parties' skeleton arguments and, of course, also the underlying documents.
The Claimant had apparently travelled from Iran through various European countries. Indeed, he was previously fingerprinted in Italy, albeit that he did not make an asylum claim there.
On the day of arrival, at some point before 10.25 hours, when Kent Police first informed the UK Border Agency, by telephone, of his apprehension, he was arrested along with seven others after a member of the public had reported seeing him (and the others) getting out of a German registered lorry on the A2.
The Claimant was then held by Kent Police until, later the same day, he was detained under paragraph 16(1) of Schedule 2 to the Immigration Act 1971, on being served with form IS151A whilst still in police detention at 16.00 hours, pending a decision whether or not to give removal directions.
The Claimant was transferred to the Defendant's Dover Enforcement Unit, arriving at 17.25 hours (based on the Reliance record). His basic details were taken and recorded in a document described as a "Minors KRT Booking-in Sheet". The same document records, under "Personal Details", the Claimant's date of birth as being 21 September 1995 (indicating that he was saying that he was 16 years old), his nationality as being Iranian and his language as being Farsi. The form also stated this next to "Hair Colour/Type": "Black, short – a little grey". There was then a tick in a box next to the words "Welfare of child considered", followed by the word "None" under a printed question asking if there were "any medical conditions".
It is common ground, as borne out by the booking-in form, that the Claimant told the immigration officer(s) booking him in that he was a minor, albeit that he did not present documentation at that time to support this claim. It is, therefore, equally common ground that at all times during the Claimant's detention by the Defendant on 2 July 2012 the Defendant treated the Claimant as a minor. It is clear that the Claimant had also told the police that he was a minor because the IS91 form authorising the Claimant's detention, which was prepared by the Defendant based on information provided to the Defendant by the police, gave the same date of birth as is recorded in the booking-in form. (The position is different in relation to the later period of detention because at that stage, as will appear, the Defendant had an age assessment from Kent CS which stated that the Claimant was an adult).
After being given time to settle in and offered refreshments, the Claimant was subsequently interviewed between 18.35 and 18.55 hours. That interview was recorded in a document described as a "Children's Current Circumstance Pro Forma", which sets out printed questions and (in manuscript) the answers which the Claimant gave to those questions.
The rubric at the start reads as follows:
"Below to be read in full in all cases
I am a UK Border Agency officer and I need to ask you a few questions today. This will last around 5 minutes and I will ask you brief details about why you left your country. I will be using a telephone interpreter to interview you; they will ask you my questions in your language and will then tell me your answers in my language. If at any stage you don't understand my questions please tell me and I will explain. Once this is completed we will refer you to Kent Social Services, an agency designed to assist children in the UK, who will come and take you somewhere safe."
The first few questions then largely replicate the questions asked on booking-in since they are concerned, again, with date of birth, language and the interviewee's medical condition. As to the latter, the questions and answers were as follows:
| Are you feeling fit and well today? | I'm tired. I spent several days in a lorry. |
| Do you have any medical conditions? | No I don't have any but in Turkey when they wanted to put me in a lorry they broke my nose – 9 or 10 days. I don't have much pain no, just a little. |
| Do you take any medication? If yes what and when was it last taken. Do you have it with you? | No medication. |
The completed form went on as follows:
| I would like to ask you why you left your home country, I only need to take brief details today because we will ask you more about this another day. | My mother had some problem with her brothers about inheritance. My cousin was Sepahi [security force] because of this I had to leave Iran, I went to Turkey but they even came there after me. |
| Do you know anybody in the UK? | No. |
| If yes – can you tell me who they are and where they are? | N/A. |
| Do you have a phone number for anybody in the UK? If yes – are they expecting you to call them? Who are they? | No. |
| Do you have any concerns that you would like to tell me about? | The only worry is that they don't arrest me. My cousin who is a member of Sepahi. I cannot go back to Iran under any conditions. |
It was only after the conclusion of this interview that, shortly after 19.00 hours (either 19. 05 or 19.10 hours – the two times are given in the documents), the Defendant referred the Claimant to Kent CS. It was then not until 21.00 hours that a representative from Kent CS attended. The Claimant was eventually released from the Defendant's detention, an IS96 having at some stage that night been issued to him authorising his temporary admission to the UK, at 23.30 hours. The formal written referral was sent to Kent CS the following morning, it being explained that the Claimant was an "Unaccompanied minor with no family or contacts in the UK" who "will require care and accommodation pending processing of case".
The Claimant remained in Kent CS's care until 17 July 2012, during which time he was age-assessed by Kent CS. The result of that age assessment was that the Claimant was assessed as being 2 years older than he claimed, specifically that he had been born in 1993 instead of 1995. This meant that Kent CS had assessed him as an adult rather than as a child as claimed.
The Defendant was informed of this age assessment on 17 July 2012, when Kent CS telephoned and subsequently sent through a fax which named the Claimant and then stated as follows:
"The above named young person has been assessed by Kent Social Services as being over the age of 18 years. The Assessment was a full assessment as required by 'Merton'. …".
Attached to the fax was a document, described as "Age Assessment Results", which set out, in Part A, the Claimant's name and "Claimed DOB" (21 September 1995) and also Kent CS's "Assessed DOB" which was given as 21 September 1993. The form went on in the following terms:
" PART B: Age Assessment Factors Considered
Physical Appearance and demeanour:
X Strongly X Adult
Child
Young Person
The applicants physical appearance/demeanour:
Weakly
Having considered the above factors, Kent County Council Children's Services has assessed the above person as having a date of birth of about: 21/09/93
Name of Social Worker/Assessor: Sarah Dolan
Contact Phone: … Date assessment completed: 17/07/12
Note: Except in obvious cases of a child or adult, this pro-forma represents a...
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