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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Ali, R (on the application of) v The Secretary of State for the Home Department & Anor [2017] EWCA Civ 138 (09 March 2017) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2017/138.html Cite as: [2017] WLR(D) 162, [2017] 1 WLR 2894, [2017] EWCA Civ 138, [2017] WLR 2894 |
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ON APPEAL FROM
SIR STEPHEN SILBER SITTING AS A JUDGE OF THE HIGH COURT
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE UNDERHILL
and
LORD JUSTICE LINDBLOM
____________________
THE QUEEN (on the application of ABDUL-MUTTELAB AWED ALI) | Respondent/Claimant |
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| - and - |
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| THE SECRETARY OF STATE FOR THE HOME DEPARTMENT AND ANOTHER |
Appellant/ Defendant |
____________________
Ian Wise QC and Michael Armitage (instructed by Bhatia Best) for the Respondent
Written submissions (prepared by Christopher Buttler), were put in on behalf of the Equality and Human Rights Commission as intervener)
Hearing date: 23 February 2017
____________________
Crown Copyright ©
Lord Justice Davis:
Introduction
Facts
application
on that date.
applications
brought by the claimant.
applications,
on 4 November 2014 in the High Court and 12 January 2015 in the Upper Tribunal respectively. On the first refusal, the single judge stated that the prior detention was lawful and there was "nothing unlawful about the Defendant's conclusion that the claimant was over 18". The second, and parallel, claim brought by the claimant was by reference to the alleged treatment he would receive if returned to Italy. That was refused by the Upper Tribunal.
applications,
fresh removal directions were set. He was then detained again, from 17 February 2015 until 1 March 2015. It was not in dispute before us that the Home Office as at 17 February 2015 had reasonable grounds for suspecting (and indeed believing) that the claimant was an adult.
The law and related policy
"(2) If there are reasonable grounds for suspecting that a person is someone in respect of whom directions may be given under any of paragraphs 8 to 10A or 12 to 14, that person may be detained under the authority of an immigration officer pending—
(a) a decision whether or not to give such directions;
(b) his removal in pursuance of such directions.
(2A) But the detention of an unaccompanied child under sub-paragraph (2) is subject to paragraph 18B."
"(1) Persons may be detained under paragraph 16 above in such places as the Secretary of State may direct (when not detained in accordance with paragraph 16 on board a ship or aircraft).
(1A) But the detention of a unaccompanied child under paragraph 16 (2) is subject to paragraph 18B."
Paragraph 18B provides:
"(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) An unaccompanied child detained under paragraph 16 (2) who has been removed from a short-term holding facility and detained elsewhere may be detained again in a short-term holding facility but only if, and for as long as, the relevant 24 hour period has not ended.
(6) An unaccompanied child who has been released following detention under paragraph 16 (2) may be detained again in a short-term holding facility in accordance with this paragraph.
(7) In this paragraph –
"relevant 24 hour period", in relation to the detention of a child in a short-term holding facility, means the period of 24 hours starting when the child was detained (or, in a case falling within sub-paragraph (5), first detained) in a short-term holding facility;
"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."
"Duty regarding the welfare of children"E+W+S+N.I.
This section has no associated Explanatory Notes
(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;
(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;
"The guidance in this section must be read in conjunction with the Assessing Age Asylum Instruction (even in non-asylum cases). You may also find it useful to consult Detention Services Order 14/2012 on managing age dispute cases in the detention estate.
The Home Office will accept an individual as under 18 (including those who have previously presented themselves as an adult) unless one or more of the following categories apply (please note this does not apply to individuals previously sentenced by the criminal courts as an adult):
A. There is credible and clear documentary evidence that they are 18 or over.
B. A Merton compliant age assessment by a local authority is available stating that they are 18 years of age or over.
C. 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.
D. The individual:
- prior to detention, gave a date of birth that would make them an adult and/or stated they were an adult; and
- only claimed to be a child after a decision had been taken on their asylum claim; and
- only claimed to be a child after they had been detained; and
- has not provided credible and clear documentary evidence proving their claimed age; and
- does not have a Merton compliant age assessment stating they are a child; and
- does not have an unchallenged court finding indicating that they are a child; and
- physical appearance / demeanour very strongly suggests that they are 18 years of age or over."
Dealing with the impact of s. 55 of the 2009 Act, this, among other things, is said in the guidance:
"The assessing age detention policy has in-built protections to ensure it is compliant with the section 55 duty. The threshold that must be met for individuals to enter or remain in detention following a claim to be a child is a high one and is only met if the benefit of doubt afforded to all individuals prior to any assessment of their age is made is then displaced because the individual has met one or more of the categories listed at the start of section 55.9.3.1."
applicant
claims to be a child "with little or no evidence and their claim to be a child is doubted by the Agency." Its detailed provisions overall confirm the approach set out in the Enforcement Instructions and Guidance and confirm the general approach that the benefit of doubt will be afforded to persons claiming to be children.
Discussion
applicable
policy guidance, had been endorsed by the Supreme Court in AA (Afghanistan) as lawful and compliant with s. 55 of the 2009 Act and compliant with the Convention and international obligations. There could be, he said, no identified purpose in changing the law in this respect by the amendments introduced in 2014 in the way the claimant has argued so as, in effect, to introduce strict liability. Such an outcome, he said, would be "surprising and unheralded". Certainly no materials were put before us to indicate that Parliament had actively intended any such change. The (essentially neutral) Explanatory Notes on Lords Amendments to the Immigration Bill (6 May 2014) – if admissible at all on the issue of statutory interpretation, which I rather doubt – certainly do not flag up such a change. As to Mr Wise's hopeful reference to the Coalition Programme for Government issued in May 2010 and the statement there contained: "We will end the detention of children for immigration purposes", I regard that as being as irrelevant as it is inadmissible for this purpose.
applicable (R v Governor of Durham Prison ex p. Hardial Singh [1984] 1 WLR 704). Greatly circumscribing, as to place and length of detention, the detention of those who are in fact unaccompanied children could rationally be accorded by Parliament precedence over administrative and practical convenience in an (admittedly difficult) evaluation exercise as to age assessment. Moreover, strict liability is a frequent concomitant of unlawful detention cases: and sometimes some hard results can be thrown up (see, for example, R v Governor of Brockhill Prison, ex p. Evans (No. 2) [2001] 2 AC 19).
Conclusion
Lord Justice Underhill:
Lord Justice Lindblom: