Home Office v VS

A referral of a person who is or may be an unaccompanied child must be made urgently. Guidance requiring a “timely” referral retains that requirement, although the precise timing and any permissible preliminary questions depend on the circumstances. For detention purposes, a person claiming to be under 18 must be treated as a child unless the specified policy criteria are met. Where adult treatment depends on a local-authority age assessment, a bare conclusion, checklist or assurance of compliance is insufficient. The Home Office must obtain the reasons for the assessment and independently consider whether it complies with the relevant principles. Failure to do so is a public-law error and leaves detention without a lawful basis.

VS claimed damages for unlawful immigration detention. The High Court declared unlawful two periods: a short period on 2 July 2012 before referral to children’s services, and detention from 17 July to 10 August 2012 after a local authority initially assessed him as an adult. The assessment was later revised and VS was accepted to have been a minor.

On appeal from VS v The Home Office [2014] EWHC 2483 (QB), the issues were whether the referral was sufficiently timely, whether the Home Office could rely on a short-form local-authority age assessment and assurance of compliance, and whether it had independently discharged its public-law duty when treating VS as an adult for detention under the Immigration Act 1971.

The appeal was dismissed unanimously. Lady Justice Black gave the judgment, with Lord Justice Tomlinson and Lord Justice Burnett agreeing.

1. The duty to make a timely referral of a child to the local authority remained an urgent one. The replacement of the word “immediately” by “timely” in the later guidance did not remove the need to avoid unnecessary delay. The precise timing remained fact-sensitive. Questions directed to possible trafficking could in principle be asked where there were reasonable grounds for suspicion, but they did not justify avoidable delay.
2. On the facts, once the booking-in process had established that VS was, or claimed to be, a minor and disclosed no welfare concern requiring further inquiry, the interview was unnecessary before referral. The first period of unlawful detention therefore stood.
3. The Home Office policy required a person claiming to be under 18 to be accepted as a child unless one of the specified exceptions applied. The only potentially relevant exception in this case was a full Merton-compliant local-authority age assessment stating that the person was 18 or over.
4. Where the full assessment report was unavailable, the Assessing Age guidance required, at a minimum, the local authority’s conclusion, the reasons for that conclusion and an assurance that the assessment complied with the relevant policy and Merton principles. The short-form document supplied by Kent was no more than a checklist of matters considered and disclosed virtually no reasoning. It did not satisfy the guidance.
5. The Home Office also had an independent public-law duty to make the necessary inquiries and reach an informed decision on age. It could rely on the local authority’s expertise, but could not rely on a bare assurance of compliance. It needed sufficient information to consider the findings and evaluate compliance with the relevant principles. The failure to do so breached the guidance and the independent duty, leaving no lawful basis to treat VS as an adult and making the second period of detention unlawful.
6. It was unnecessary to decide whether adult treatment could be justified only when the Home Office possessed the complete written Merton-compliant assessment.

1. Court of Appeal (Civil Division): dismissed the Home Office’s appeal against the declarations of unlawful detention.
2. High Court, Queen’s Bench Division: in VS v The Home Office [2014] EWHC 2483 (QB), declared two periods of detention unlawful and left assessment of damages for a later date.