AN & FA (Children), R (On the Application Of) v Secretary of State for the Home Department

An unaccompanied child encountered at the border may be asked the limited questions reasonably necessary for booking in and referral to social services. Urgent questions may also be justified where trafficking or another immediate welfare concern is reasonably suspected. Questions about a possible asylum claim do not carry the same urgency.

The child must be referred to social services immediately after booking in, subject to the circumstances of the case. Detention prolonged merely to conduct an unnecessary initial interview is inconsistent with the applicable safeguarding code and is unlawful.

Answers obtained without a responsible adult are not subject to a universal rule of exclusion. Their admissibility and weight require scrupulous, case-specific assessment. Material obtained through a clear breach of protections governing substantive asylum questioning may be unusable.

Two unaccompanied Afghan children were detained by the UK Border Agency after arriving clandestinely in the United Kingdom. Each underwent an initial interview without a responsible adult before being referred to Kent Social Services. Their answers later became relevant to their asylum claims. Both were also fingerprinted without the independent adult required by statute.

Mitting J declared the fingerprinting unlawful but held that the initial questioning and detention were otherwise lawful. He also held that answers to permissible questions could be considered in later asylum proceedings, with their circumstances affecting weight. Answers elicited from FA about the substance of his claim after he had claimed asylum could not be relied upon.

The appeals concerned the permissible scope and timing of initial questioning, the later use of answers obtained without an independent adult, and whether delayed referral to social services rendered the children’s detention unlawful.

1. Appeals allowed in part. By a majority, the court held that both children were unlawfully detained between completion of the booking-in process and referral to social services. The declarations made below were to be expanded accordingly. Any resulting damages would be modest.

2. The applicable Code required an unaccompanied child to be referred to the local authority immediately and placed in its care as soon as practicable. “Immediately” depended upon the circumstances, but conveyed urgency. Once booking in established that each appellant was an unaccompanied child requiring care, no emergency justified postponing referral.

3. Per Black and Maurice Kay LJJ, the permissible questioning before referral was limited. Immigration officers could obtain information essential to meaningful booking in, including identity, age, nationality, arrival details and apparent condition. Questions directed to suspected trafficking could also be asked where reasonable grounds made urgent investigation necessary. The possibility of an asylum claim did not itself require immediate investigation. Detaining the children for several hours to enable wider initial interviews was therefore inconsistent with the safeguarding Code.

4. Elias LJ considered that the interviews were lawful, apart from questions put to FA about the substance of his asylum claim. He nevertheless agreed that a short period of detention after each interview was unlawful because social services should have been alerted sooner. His view of the unlawful period was narrower than that adopted by the majority.

5. The court rejected a universal rule excluding every answer obtained from a child interviewed without a responsible adult. Admissibility and weight depended upon the circumstances and required scrupulous assessment. Relevant considerations included the child’s vulnerability, possible illness or confusion, interpretation problems, the absence of an independent adult and the possibility that a later opportunity to explain would not repair the resulting unfairness.

6. A clear breach of the protections governing questioning about the substance of an asylum claim made reliance exceedingly difficult and could rule it out entirely. On the concession maintained by the Secretary of State, FA’s answers to substantive asylum questions after he had claimed asylum could not be relied upon. The remainder of the challenge concerning the use of interview material was dismissed.

• Court of Appeal (Civil Division): The appeals were allowed in part. The declarations were expanded to state that both appellants were unlawfully detained between completion of booking in and referral to social services.
• High Court, Administrative Court: Mitting J declared the fingerprinting unlawful but otherwise rejected the challenges to the interviews, use of interview material and detention. No neutral citation is stated in the judgment.