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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> AA, R (on the application of) v Secretary of State for the Home Department & Anor  EWHC 1453 (Admin) (20 June 2016)
Cite as:  WLR(D) 317,  1 WLR 145,  EWHC 1453 (Admin)
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
(SITTING AS A JUDGE OF THE HIGH COURT)
| THE QUEEN on the application of AA
|- and -
|SECRETARY OF STATE FOR
THE HOME DEPARTMENT
|- and -
|WOLVERHAMPTON CITY COUNCIL
John McKendrick QC (instructed by Government Legal Department) for the Defendant
Hearing date: 11 May 2016
Further written submission filed on 12 May 2016
Crown Copyright ©
Sir Stephen Silber :
i) whether the entire period of the Claimant's detention was unlawful, pursuant to paragraph 18B of Schedule 2 to the Immigration Act 1971 ("1971 Act",) a provision which prohibits the detention of unaccompanied children pursuant to the Secretary of State's immigration powers save in very narrowly circumscribed cases ("Issue 1"). and
ii) in the event that Claimant is unsuccessful in respect of Ground 1, the issue is whether Claimant's detention nonetheless became unlawful with effect from 23 February 2015, the date on which the Secretary of State was provided with a copy of a written "age assessment" that had been carried out by the interested party, Wolverhampton City Council ("the Interested Party"), confirming that the Claimant was a child ("Issue 2").
The Agreed facts
i) On 19 July 2014, the Claimant arrived in the United Kingdom on a lorry and he claimed asylum. He said that he was about 17 years old and was therefore a child. He was taken into detention, but the legality of that period of detention is not being challenged in these proceedings.
ii) On 25 July 2014, Italy accepted that it was the Member State responsible for the Claimant's asylum claim under Dublin II as Italy was the Claimant's initial point of entry into the European Union.
iii) On 6 August 2014, the Secretary of State certified the Claimant's asylum claim on "safe third country grounds" so that he could be safely removed to Italy and she issued directions for the Claimant's removal to Italy. These were cancelled after he brought two judicial review applications.
iv) Permission to apply for judicial review sought by the Claimant was refused in respect of the first judicial review application on 4 November 2014, and on 12 January 2015 in respect of the second judicial review application.
v) On 6 February 2015, the Interested Party conducted an age assessment of the Claimant and on 17 February 2015. It concluded that the Claimant was "a child of the approximate age of 16/17years old".
vi) The Claimant was detained by the Secretary of State between 17 February 2015 and 1 March 2015 and it is now accepted by the Secretary of State that he was a child for that entire period of his detention.
vii) For the entirety of that period of detention, the Claimant was detained at immigration removal centres, initially Brook House Immigration Removal Centre (from 17 February 2015 until 28 February 2015) and then at Tinsley House Immigration Removal Centre from 28 February 2015 until his release on 1 March 2015. The Claimant's case is that he was unlawfully detained for the whole of that period and that is Issue 1.
viii) At 10.55am on 23 February 2015, the Claimant's solicitors provided the Secretary of State with a copy of an age assessment that had been carried out by the Interested Party on 16 February 2015, which confirmed that the Claimant was "a child of the approximate age of 16/17years old". Issue 2 is based on the claim that the Claimant should have been, but was not, released at the latest on 23 February when the Secretary of State received that age assessment.
ix) On 24 February 2015, the Secretary of State nonetheless decided to maintain the Claimant's detention. It was not until 27 February 2015 that the Secretary of State decided that she would release the Claimant from detention, in light of the Age Assessment. It is this delay in releasing the Claimant from 2 February 2015 until 27 February 2015 which forms the basis for Issue 2.
"(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) 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."
The Claimant's Case on Issue 1
"42. With rare exceptions (the most notorious example being the decision of the majority of the House of Lords in Liversidge v Anderson  AC 206), the courts have looked with strictness on statutory powers of executive detention. These principles are all too well established to require citation of authorities".
"It has long been a well established principle to be applied in the consideration of Acts of Parliament that where a word of doubtful meaning has received a clear judicial interpretation, the subsequent statute which incorporates the same word or the same phrase in a similar context, must be construed so that the word or phrase is interpreted according to the meaning that has previously been assigned to it."
The Secretary of State's case on Issue 1
"Counsel for the appellants urged your Lordships, as he did the Court of Appeal, to modify the natural and ordinary meaning of the statutory language — in effect, to add words which are not in the statute in order to obviate what he claimed were the absurd and anomalous consequences of taking the words literally.
The rider to 'Lord Wensleydale's golden rule' may seem to be at variance with the citations of high authority contained in the speeches of my noble and learned friends. But this is not really so. The clue to their reconciliation is to be found in the frequently cited passage on statutory construction in Lord Blackburn's speech in River Wear Commissioners v. Adamson (1877) 2 App. Cas. 743, 763:
'In all cases the object is to see what is the intention expressed by the words used. But, from the imperfection of language, it is impossible to know what that intention is without inquiring farther, and seeing what the circumstances were with reference to which the words were used, and what was the object, appearing from those circumstances, which the person using them had in view.'
What the court is declaring is 'Parliament has used words which are capable of meaning either X or Y: although X may be the primary, natural and ordinary meaning of the words, the purpose of the provision shows that the secondary sense, Y, should be given to the words.' So too when X produces injustice, absurdity, anomaly or contradiction. The final task of construction is still, as always, to ascertain the meaning of what the draftsman has said, rather than to ascertain what the draftsman meant to say. But if the draftsmanship is correct these should coincide. So if the words are capable of more than one meaning it is a perfectly legitimate intermediate step in construction to choose between potential meanings by various tests (statutory, objective, anomaly, etc.) which throw light on what the draftsman meant to say'
Use of language in Paragraph 18 B
Context of Paragraph 18 B
Previous judicial interpretation of the word "child"
"3.The issue on this appeal is the effect of section 55 on the legality of the Claimant'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 were 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 Claimant'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."
"49.I have referred to the natural and ordinary meaning of section 55(1). Its wording and structure are very different from section 20(1) of the Children Act 1989, as I have said, and I am not persuaded that section 55 should be interpreted in the way for which Mr Knafler contends in order to meet the UK's international obligations or to provide adequately for the welfare principle.
"128. Unfortunately, the immigration officers did not have regard to the Claimant's status as a child, and the need to safeguard and promote his welfare as a child, when they made the decision to detain him, because they were under the mistaken belief that he was not a child.
129. However, he was in fact a child, within the meaning of the definition of 'child' in subsection (6), and it is not possible to interpret this definition as if Parliament had included the words 'appears to be a child' or 'is reasonably believed to be a child'."
"50.The judgment in the AAM case  EWHC 2567 was right on the facts as Lang J found them, but if and in so far as her judgment amounted to holding that any detention under paragraph 16 of Schedule 2 to the 1971 Act of a child in the mistaken but reasonable belief that he was over 18 would ipso facto involve a breach of section 55, I would disapprove that part of the judgment."
Absurd Outcome of the Claimant's approach and other matters
"Where there is little or no evidence to support the applicant's claimed age and their claim to be a child is doubted, the following policy should be applied:
1.The applicant should be treated as an adult if their physical appearance /demeanour very strongly suggests that they are significantly over 18 years of age.
Careful consideration must be given to assessing whether an applicant falls into this category as they would be considered under adult processes and could be liable for detention.
Before a decision is taken to assess an applicant as significantly over 18, the assessing officer's countersigning officer (who is at least a Chief Immigration Officer(CIO)/Higher Executive Officer must be consulted as a 'second pair of eyes'. They must make their own assessment of the applicant's age. If the countersigning officer also agrees to assess the applicant as significantly over18, the applicant should be informed that their claimed age is not accepted….Form 1S.97M should be completed and served and signed by the countersigning officer (CIO/HEO grade or above)…"
Discussion on Issue 1
"Faced with the jealous care our law traditionally devotes to the protection of the liberty of those who are subject to its jurisdiction, I find it impossible to imply into the statute word the effect of which would be to take the provision paragraph 9 of Schedule 2 of the 1971 Act [which provided that where "an illegal entrant" is not given leave to enter or remain in the UK] out of the precedent fact category".
"Parliament is nowadays in continuous session, so that an unlooked-for and unsupportable injustice or anomaly can be readily rectified by legislation; this is far preferable to judicial contortion of law to meet apparently hard cases with the result that ordinary citizens and their advisers hardly know where they stand".
The Croydon case
"... There is a right or a wrong answer. It may be difficult to determine what that answer is. The decision-makers may have to do their best on the basis of less than perfect or conclusive evidence. But that is true of many questions of fact which regularly come before the courts. That does not prevent them from being questions for the courts rather than for other kinds of decision makers".
"51… is a question of fact which must ultimately be decided by the court" even though there is no denying the difficulties that the social worker is likely to face in carrying out an assessment of the question whether an unaccompanied asylum seeker is likely to face in carrying out an assessment of the question whether an unaccompanied asylum seeker is or is not under the age of 18".
The Afghanistan case
"any detention under paragraph 16 of Schedule 2 to the 1971 Act of a child in the mistaken but reasonable belief that he was over 18 would ipso facto involve a breach of section 55, I would disapprove that part of the judgment."
"Faced with the jealous care our law traditionally devotes to the protection of the liberty of those who are subject to its jurisdiction, I find it impossible to imply into the statute word the effect of which would be to take the provision paragraph 9 of Schedule 2 of the 1971 Act [which provided that where "an illegal entrant" is not given leave to enter or remain in the UK] out of the precedent fact category. If Parliament intends to exclude effective judicial review of a power in restraint of liberty, it must make its meaning crystal clear"
i) Paragraph 18B (4) states that one of the conditions for detaining a child in a short-term holding facility is that (with emphasis added) "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 ". By way of contrast, Paragraph 18B (7) does not state that a child is a person who the immigration officer reasonably believes to be a child, but merely states that a child is a "person ...who is under 18 year of age". This indicates that the appropriate test for deciding if the Claimant was a child had to be determined as a matter of precedent fact and not according to the reasonable belief of the immigration officer.
ii) This point is supported by the additional and free-standing point that the courts are very reluctant to imply a term that would take an issue limiting the liberty of an individual out of the precedent category and I have referred to the statements to that effect from Lord Scarman, Baroness Hale and Lord Toulson as well as from Lord Atkin.
iii) The Croydon case supports this conclusion.
iv) The Afghanistan case dealt with a different issue as I explained in paragraphs 57 to 66 above. The main judgment of Lord Toulson refers to the Croydon case and it does not criticise it.
v) For the reasons set out in paragraph 15 above and in Barras (supra) Parliament must be presumed to have intended that the word "child" would be interpreted in accordance with the meaning attached to it in the similar cases of Khawaja and the Croydon case.
vi) For the reasons which I have set out, I cannot accept the submissions of Mr McKendrick that the issue of whether an individual is a "child" for the purposes of paragraphs 16 and 18B of schedule 2 can be decided by the reasonable belief of an immigration officer.
"20. (1) Every local authority shall provide accommodation for any child in need within their area who appears to them to require accommodation as a result of –
(a) there being no person who has parental responsibility for him;
(b) his being lost or having been abandoned; or
(c) the person who has been caring for him being prevented (whether or not permanently, and for whatever reason) from providing him with suitable accommodation or care." And
"105(1) a 'child' means . . . a person under the age of eighteen".
2. S. 55 of the Borders Citizenship and Immigration Act 2009 provides that:
"(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; …"
Note 1 See paragraph 10 below for the provisions [Back] Note 2  AC 593 [Back] Note 3 See R v Inland Revenue Commissioners ex p Rossminster  AC 952, 1011 and 1025 [Back] Note 4 When I circulated a draft of this judgment to Counsel, it was pointed out to me by Mr. Mc Kendrick that in a prior period of the Claimant’s detention (which is not under challenge in these proceedings), the Secretary of State gave effect to her immigration policy on 19 July 2014 as “the immigration officer concluded that the Claimant’s physical demeanour strongly suggests that he is significantly over 18”. There was no evidence before the Court that the Secretary of State had regard to this procedure that had been carried out in that earlier period of detention when re-detaining the Claimant in the period with which this application is concerned. [Back] Note 5 See paragraph 15 above [Back] Note 6 Similar views were expressed by Lord Atkin in Liversidge v Anderson (supra) and by Lord Toulson in the Afghanistan case as set out in paragraph 13above [Back] Note 7 See paragraph 67 above. [Back] Note 8 See paragraph 37 above. [Back] Note 9 See paragraph 37 above. [Back] Note 10 See paragraph 13 above. [Back] Note 11 See paragraphs 47 -56 above. [Back] Note 12 See paragraph 68 above. [Back]
Note 1 See paragraph 10 below for the provisions [Back]
Note 2  AC 593 [Back]
Note 3 See R v Inland Revenue Commissioners ex p Rossminster  AC 952, 1011 and 1025 [Back]
Note 4 When I circulated a draft of this judgment to Counsel, it was pointed out to me by Mr. Mc Kendrick that in a prior period of the Claimant’s detention (which is not under challenge in these proceedings), the Secretary of State gave effect to her immigration policy on 19 July 2014 as “the immigration officer concluded that the Claimant’s physical demeanour strongly suggests that he is significantly over 18”. There was no evidence before the Court that the Secretary of State had regard to this procedure that had been carried out in that earlier period of detention when re-detaining the Claimant in the period with which this application is concerned. [Back]
Note 5 See paragraph 15 above [Back]
Note 6 Similar views were expressed by Lord Atkin in Liversidge v Anderson (supra) and by Lord Toulson in the Afghanistan case as set out in paragraph 13above [Back]
Note 7 See paragraph 67 above. [Back]
Note 8 See paragraph 37 above. [Back]
Note 9 See paragraph 37 above. [Back]
Note 10 See paragraph 13 above. [Back]
Note 11 See paragraphs 47 -56 above. [Back]
Note 12 See paragraph 68 above. [Back]