AAM (A Child) v Secretary of State for the Home Department

Immigration detention is lawful only where authorised by statute and exercised in accordance with material public-law duties and published detention policy. A material error affecting the decision to detain makes the detention unlawful; the fact that detention might otherwise have occurred lawfully goes to damages, not liability. An immigration officer must independently assess whether an age assessment is procedurally compliant and reliable. Officers must also have regard to the welfare of a child in individual detention decisions. A mistaken belief that the child is an adult does not remove that duty. Detention of a child must satisfy Article 5 ECHR read with the UNCRC. A presumption favouring detention for clandestine lorry arrivals and failure to conduct required reviews rendered the detention unlawful, although the delay in screening did not itself breach the Hardial Singh limits.

The claimant, an Iranian national of Kurdish ethnicity, claimed damages for false imprisonment and breach of the Human Rights Act 1998 arising from 44 days of immigration detention. He had claimed to be aged 15, but a local authority assessment treated him as an adult. A later assessment treated him as a minor, and the immigration tribunals ultimately proceeded on the basis that his date of birth was 1 July 1994.

The Secretary of State conceded that officials had applied an unlawful presumption in favour of detaining clandestine lorry arrivals and had failed to carry out required detention reviews. She contended that the detention was otherwise justified and that only nominal damages should follow. The central issues were the effect of the defective age assessment, the individual welfare duty owed to children, Article 5 ECHR, and the permissible duration and purpose of detention.

The claim succeeded on liability. The court found that the claimant had been falsely imprisoned for 44 days and that the detention breached Article 5 ECHR and the Human Rights Act 1998. The judgment determined liability only.

1. Statutory authority and false imprisonment. False imprisonment is a strict-liability tort, actionable without proof of loss, and the defendant bears the burden of establishing lawful justification. General statutory detention powers must be construed strictly because liberty is a fundamental common-law right. The court declined to extend statutory protections available to hospitals or police officers where Parliament had not expressly provided equivalent protection for immigration officers: [2011] UKSC 12 and [2001] 2 AC 19.
2. Material public-law error. A breach of public law which bears on and is relevant to the decision to detain renders the detention unlawful. The fact that the claimant might have been detained lawfully in any event affects damages rather than liability: [2011] UKSC 12 and [2011] UKSC 23. The conceded presumption favouring detention of clandestine lorry arrivals and the failure to conduct reviews at the required intervals therefore vitiated the detention.
3. Age assessment. The first assessment was invalid because the claimant was in fact under 18 and the assessment was not Merton-compliant. It lacked an appropriate adult, was conducted by one rather than two social workers, and gave no opportunity to comment on adverse findings. However, an invalid local authority assessment did not automatically invalidate the immigration officer’s decision. Under the policy, the officer had to evaluate independently whether the assessment was procedurally compliant and reliable. The responsible officer failed to ask the right questions or make reasonable enquiries.
4. Welfare of children. Section 55 of the Borders, Citizenship and Immigration Act 2009 required the Secretary of State and individual immigration officers to have regard to the need to safeguard and promote the welfare of children. Child status was an objective question of fact. The claimant’s actual status as a child meant that the welfare duty applied notwithstanding the officers’ mistaken belief that he was an adult. Failure to take that duty into account was an error of law.
5. Convention rights and duration. Once detention was unlawful under domestic law, it also breached Article 5(1) ECHR. The Convention had to be read with the UNCRC: the claimant’s best interests had to be a primary consideration, detention had to be a last resort and for the shortest appropriate period, and alternatives had to be considered. Applying the Hardial Singh principles, however, the 32-day period before screening was not independently unlawful because detention served the wider purpose of deciding admission and removal, and the Secretary of State acted with reasonable diligence and expedition.

These proceedings were decided at first instance. No appellate history for this claim is stated in the judgment.