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

The duty under section 55 of the Borders, Citizenship and Immigration Act 2009 requires the Secretary of State to establish proper arrangements for safeguarding and promoting children’s welfare in immigration matters. It does not impose strict liability whenever a person reasonably but mistakenly assessed as an adult is detained.

Detention is lawful where the statutory detention power applies, the age-assessment guidance complies with section 55, and officials follow that guidance. The arrangements must include careful assessment, the benefit of doubt where appropriate, and continuing consideration of fresh evidence. A material breach of section 55 would render detention unlawful.

The appellant, an Afghan asylum seeker, was detained for 13 days under Schedule 2, paragraph 16(2) of the Immigration Act 1971. The Secretary of State reasonably believed that he was over 18, relying on a local authority assessment and an immigration judge’s determination. A later assessment established that he was 17.

Blake J refused permission to seek judicial review: [2011] EWHC 1216 (Admin). The Court of Appeal subsequently granted limited permission but dismissed the substantive claim: [2012] EWCA Civ 1383.

The central issue was whether section 55 of the Borders, Citizenship and Immigration Act 2009 made the detention unlawful solely because the appellant was in fact a child whose welfare had not been considered as such.

1. Appeal dismissed. Lord Toulson delivered the judgment with which Lord Neuberger, Lord Clarke, Lord Wilson and Lord Carnwath agreed on the issues in the appeal. The appellant fell within the detention power in Schedule 2, paragraph 16(2) of the Immigration Act 1971. His detention was not made unlawful by section 55 of the Borders, Citizenship and Immigration Act 2009.

2. Section 55 gives the Secretary of State direct responsibility for making arrangements which ensure that immigration functions are discharged having regard to the need to safeguard and promote children’s welfare. It also makes her responsible for an immigration officer’s failure to have regard to the statutory guidance or the welfare principle. Proper arrangements must include systems capable of producing a reliable assessment of age.

3. The published guidance provided a careful and sufficiently protective system. It required doubtful cases generally to be treated as involving children, gave considerable weight to compliant local authority assessments, and required decisions to be reviewed when relevant new evidence emerged. The guidance therefore complied with section 55(1), and no official had failed to follow it. There was consequently no material breach of section 55.

4. Section 55 differs materially from section 20(1) of the Children Act 1989. Under section 20, whether a person is a child is an objective fact for the court because the statutory words concerning appearance apply to the need for accommodation, rather than age. Section 55 instead regulates the arrangements and conduct through which immigration functions are exercised. Its natural meaning does not make every reasonable but mistaken age assessment a statutory breach.

5. The construction adopted was compatible with article 5 of the European Convention and article 3.1 of the United Nations Convention on the Rights of the Child. Error cannot be eliminated entirely, but careful initial assessment, the benefit of doubt, reconsideration of fresh evidence and judicial review provide appropriate safeguards.

6. AAM v Secretary of State for the Home Department was correct on its facts, where the immigration officer had failed to make the required inquiries. It was disapproved insofar as it held that detaining a child under paragraph 16, in a mistaken but reasonable belief that the person was an adult, necessarily breached section 55.

7. Lord Toulson considered, without deciding the point, that habeas corpus might permit a court to determine age where personal liberty depended upon it. Lord Carnwath reserved his position because the issue had not been argued and raised procedural and practical difficulties. The point was left undecided.

1. United Kingdom Supreme Court: The appeal was dismissed: [2013] UKSC 49.

2. Court of Appeal: The court, comprising Arden LJ, Davis LJ and Baron J, dismissed the substantive judicial review claim: [2012] EWCA Civ 1383.

3. High Court: Blake J dismissed the application for permission to apply for judicial review after an oral hearing: [2011] EWHC 1216 (Admin).