VS v The Home Office

Unaccompanied children may be detained only in the exceptional circumstances permitted by the applicable statutory powers and published policies. Once booking-in has established that a person claims to be an unaccompanied minor and no welfare issue requires delay, referral to the local authority must be made promptly. Detention for an unnecessary interview is unlawful.

Where an age-disputed person has been assessed as an adult, the Home Office must comply with its Assessing Age guidance and independently consider whether the assessment is Merton-compliant. The guidance requires, at minimum, the local authority’s conclusion, reasons for it, and an assurance of compliance. A bare pro-forma recording factors without case-specific reasons is insufficient. Failure to comply means there is no lawful basis for treating the person as an adult for detention purposes.

The claimant, an Iranian national who was in fact aged 17, claimed damages and declaratory relief for two periods of immigration detention. The first lasted from his arrival on 2 July 2012 until his referral to Kent County Council’s Children’s Services. The second lasted from 17 July to 10 August 2012, after Kent had provisionally assessed him as an adult.

The issues were whether the first detention became unlawful before referral; whether the Home Office could rely on Kent’s brief age-assessment summary and assurance of Merton compliance; and whether later documentary evidence required a review of continued detention.

1. First detention. The claimant’s detention was lawful initially under paragraph 16(1) of Schedule 2 to the Immigration Act 1971. However, after the booking-in process, the Home Office knew that he claimed to be a minor, had recorded his basic details, and had identified no welfare concern requiring delay. Applying the majority reasoning in R (AN and FA) v Secretary of State for the Home Department, the referral should have been made promptly. The subsequent interview, including the question why he had left Iran, was unnecessary for care and safety. Detention from 17.50 to 19.10 on 2 July 2012 was therefore unlawful.
2. Second detention. The Supreme Court’s decision in AA v Secretary of State for the Home Department did not determine a breach-of-policy challenge of this kind. It concerned whether detention was retrospectively unlawful because the claimant was later found to have been a child. The present claim concerned failure to follow the Home Office’s age-assessment policy.
3. Meaning of the guidance. Section 5.3 of the Assessing Age guidance did not require the full age-assessment report before detention could be considered. It did require, at minimum, the local authority’s assessment conclusion, the reasons on which it was based, and an assurance that the assessment complied with the local authority’s policy and the Merton guidelines.
4. Kent’s two-page “Age Assessment Results” document did not provide reasons specific to the claimant. Recording “Y” or “N” against general factors did not explain why those factors supported an adult assessment. The Home Office could not independently evaluate Merton compliance from that material and had failed to follow its own guidance. The failure also meant that the independent obligation to consider Merton compliance had not been adequately discharged.
5. The claimant had to be treated as an unaccompanied minor under Article 2(h) of the Dublin II Regulations. Under Article 6, responsibility for examining his asylum claim lay with the United Kingdom. There were therefore no reasonable grounds for removal directions under paragraph 16(2) of Schedule 2 to the Immigration Act 1971, and no power to detain. The whole period from 17 July to 10 August 2012 was unlawful.
6. Had the second detention been lawful initially, it would nevertheless have become unlawful after 7 August 2012 because the Home Office failed to consider translated documents supporting the claimant’s age and Kent’s agreement to reassess him. Declarations were made that both periods of detention were unlawful. Damages were left for later assessment.