S & Ors v Secretary of State for the Home Department

Detention of families with children under immigration powers is not unlawful merely because it is not confined to exceptional cases or a few days. The policy must require detention to be used sparingly, for the shortest period necessary, only where strong grounds support non-compliance with temporary admission or release, and after reasonable alternatives have been considered. Those safeguards must be applied with particular rigour where children are detained. A fast-track policy permitting detention for about 14 days was lawful. The individual detention became unlawful when the evidence did not establish the required likelihood of absconding, alternatives had not been properly considered, and the likely overall period was unreasonable. A public authority responsible for detention may be liable under Article 8 ECHR where a detained child’s foreseeable and avoidable illness infringes the child’s physical integrity.

The claimants were a Jamaican mother and her two young children. They were detained from 2 August to 1 December 2005 after the mother claimed asylum. The first period, at Oakington, concerned the fast-track determination of the asylum claim. After that process ended, detention continued because the Secretary of State considered that the family would abscond if released or granted temporary admission. The claimants challenged the detention policy and the lawfulness of their detention under Article 5 ECHR, read in the light of Articles 3 and 37(b) UNCRC. The youngest child also claimed that detention infringed his Article 8 right to physical integrity because he developed rickets and anaemia.

1. Policy. The fast-track policy was lawful. Applying Saadi v Secretary of State for the Home Department [2002] 1 WLR 3131 and D and others v Home Office [2006] 1 WLR 1003, detention for about 14 days was not arbitrary or unreasonable where that period was necessary to process the claims. The general family-detention policy was also lawful.
2. Article 5 ECHR could properly be read in the light of Articles 3 and 37(b) UNCRC. The policy was compatible with the general thrust of those provisions when assessed fairly, objectively and in the round. The requirement to use detention only after reasonable alternatives had been discounted, and for the shortest period necessary, was materially consistent with detention as a last resort and for the shortest appropriate period. The child’s best interests were a primary consideration, but did not exclude detention in every case.
3. The detention rules required close attention to individual circumstances. Detention had to be used sparingly, for the shortest necessary period, supported by strong grounds for believing that temporary admission or release would not be complied with, and after reasonable alternatives had been considered. Those requirements applied with particular rigour when detention of young children was inherent in the decision.
4. Adopting the approach in Hanil El Sayed Sabaei Youssef v Home Office [2004] EWHC 1184, the court assessed the reasonableness of detention as the primary decision-maker rather than merely applying Wednesbury review. The detention after 15 August 2005 breached the published policy because strong grounds for believing that the mother would abscond had not been shown and reasonable alternatives had not been properly considered. It was therefore unlawful and infringed Article 5 ECHR.
5. The detention was independently unlawful because the decision-maker had failed to consider properly the likely length of detention. A period of about two months, following 13 days in fast-track detention and involving a young mother and two very young children, was unreasonable. In any event, detention became unlawful no later than 14 September 2005, and at the latest from 13 October 2005 if the earlier conclusions were wrong.
6. The youngest child’s development of rickets and anaemia was foreseeable and avoidable. That was sufficient to establish an infringement of his Article 8 right to physical integrity. The Secretary of State, as the public authority responsible for the detention, was responsible in law for the infringement.
7. The policy challenge was dismissed. Declarations were granted that detention from 15 August 2005 until release was unlawful and breached Article 5 ECHR, and that the youngest child’s Article 8 right to physical integrity was infringed. Damages were adjourned.