O, R (on the application of) v Secretary of State for the Home Department & Anor

Where an asserted minor’s age is central to a detention decision, it is arguable that the decision-maker must give legally adequate reasons explaining why the person is not a minor and must address material evidence, such as an age assessment. It is also arguable that defective reasoning in the decision cannot necessarily be repaired by later or contemporaneous material outside the decision. An inadequately reasoned age decision may raise a separate question about the lawfulness of detention, even where later decisions provide a proper basis for treating the person as an adult. The Administrative Court may determine such public-law issues even though a damages claim may otherwise be appropriate.

The claimant challenged decisions concerning his age and detention by the Secretary of State for the Home Department. The challenge concerned a decision dated 26 July 2005, a further decision dated 15 September 2005, and detention between 26 and 28 July 2005. He relied principally on an age report by Dr Michie and challenged the use of material from Peterborough City Council Social Services.

The court also considered proposed challenges to decisions dated 7 December 2005 and 16 June 2006, and to earlier detention from 15 July 2005. The central issues at the permission stage were whether the age decision required fuller reasoning, whether material outside the decision could cure inadequate reasons, and whether any defect could make the detention unlawful.

1. Permission granted in part. It was arguable that, where the claimant’s status as a minor was central to whether he could be detained, the Secretary of State was required to give legally adequate reasons for concluding that he was not a minor and to deal with the substance of the age report supplied by Dr Michie.
2. It was also arguable that, if the decision was defective in public-law terms because its reasoning was inadequate on its face, the defect might not be cured by contemporaneous documents showing what the reasons actually were. The court identified a distinction between reasons required by statute to appear in a decision letter and reasons which were not subject to such a statutory requirement.
3. It was arguable that an inadequately reasoned age decision could itself affect the lawfulness of detention. The court noted that later decisions dated 7 December 2005 and 16 June 2006 appeared to provide a proper basis for concluding that the claimant had been an adult at the relevant time, but held that this did not eliminate the arguable issues concerning the earlier decision.
4. Permission was refused for the challenge to detention before 26 July 2005. The Secretary of State was required to consider the age report, but was not required simply to accept it against contrary earlier material. Permission was also refused in relation to the 7 December 2005 decision and the 16 June 2006 letter, which disclosed no arguable error of law. The absence of an appropriate adult during the local authority interviews did not breach an applicable policy requirement.
5. The court considered that the public-law issues were appropriately resolved in the Administrative Court, although a damages claim might often be the suitable remedy for unlawful detention. Costs were subject to detailed assessment.

Permission to amend the claim had previously been granted by Sullivan J. The present court granted permission on limited grounds and refused permission for the remaining challenges.