AA, R (on the application of) v Secretary of State for the Home Department

Immigration detention is assessed by reference to the circumstances and legal position at the time of detention. Where an age-dispute individual has been assessed as an adult and is not then established to be a child, a later finding that the person was under 18 does not retrospectively invalidate detention.

Paragraph 16(2) of Schedule 2 to the Immigration Act 1971 turns on reasonable grounds for suspicion. It does not require the suspected facts to be objectively proved. The section 55 duty under the Borders, Citizenship and Immigration Act 2009 applies to an individual detention decision where the person is a child, but does not amend that statutory threshold or operate with hindsight. The Enforcement Instructions and Guidance permits detention in specified age-dispute cases and satisfies legal certainty.

Mr AA, an Afghan national who entered the United Kingdom unaccompanied, claimed asylum and was assessed as over 18. The Secretary of State detained him pending removal. He was released after issuing judicial review proceedings and was later accepted to have been under 18 at the relevant time. The Secretary of State withdrew the refusal of asylum and agreed to reconsider his claim, but Mr AA continued his claim for a declaration of unlawful detention and compensation.

Blake J rejected the challenge. The Court of Appeal considered whether the statutory detention power and the section 55 duty were engaged by the later age finding, and whether the Enforcement Instructions and Guidance permitted detention pending age assessment.

1. Disposition. Arden LJ would dismiss the application for judicial review. Davis LJ and Baron J agreed.
2. Statutory power and timing. The court treated paragraph 16(2) of Schedule 2, Part 1 to the Immigration Act 1971, as a power exercisable where the Secretary of State formed the view that there were reasonable grounds for suspecting that the person was subject to removal directions. The provision did not require the suspected facts, including adult status, to be objectively established before detention. Section 55 did not silently amend that statutory threshold. The court distinguished R (o/a Khawaja) v Home Secretary [1984] AC 74, because the detention power considered there required an objective precedent fact.
3. Section 55 duty. The duty under the Borders, Citizenship and Immigration Act 2009 had to be performed when consideration was given to detaining a child. It was not exhausted by making a policy. However, its application depended on whether the person was a child for legal purposes at the time of detention, not on a later determination. The accepted age assessment and the absence of a live dispute meant that Mr AA was then treated in law as an adult. Detention therefore did not become unlawful with the benefit of hindsight.
4. Policy. Chapter 55 of the Enforcement Instructions and Guidance contemplated detention of a person treated as an adult who was later accepted to be under 18. It allowed an age-dispute individual to be treated as an adult where there was credible and clear documentary evidence of adulthood, a full Merton-compliant assessment stating adulthood, or physical appearance or demeanour strongly indicating that the person was significantly over 18 and no other credible evidence existed. The benefit-of-the-doubt principle applied in borderline cases, but not on the facts of this case.
5. Convention and legal certainty. The court held that Article 5(1)(f) did not, solely because of a mistaken assessment of adulthood, make the detention unlawful. The policy criteria were sufficiently certain, despite involving some judgment. They were specific, operated in a context limiting arbitrariness, left little scope for departure, and were subject to conventional judicial review. The challenge was dismissed.

1. Court of Appeal (Civil Division): [2012] EWCA Civ 1383. Dismissed the application for judicial review and upheld the result reached below.
2. Blake J: judgment dated 7 March 2011 rejected the challenge to detention and the claim for compensation.