G, R (on the application of) v The Secretary of State for the Home Department

A published detention policy may qualify a statutory power of detention. Failure to comply with such a policy, without good reason, can make detention unlawful. Immigration officials may rely on a local authority age assessment certified as Merton-compliant, including a short assessment where experienced social workers regard it as obvious that the person is over 18. New evidence suggesting childhood does not automatically require release while its authenticity and significance remain unresolved.

The claimant, an Afghan national, claimed to have been born on 10 October 1997. Immigration officers detained him under paragraph 16 of Schedule 2 to the Immigration Act 1971 after Birmingham City Council social workers assessed him as over 18.

He sought declarations concerning his date of birth and the lawfulness of detention from 21 May to 1 June 2012, together with damages for false imprisonment or just satisfaction under Article 5 of the ECHR. The issue-estoppel point concerning his actual age was left open. The central issue was whether the Secretary of State’s published policy required him to be treated as a child, either initially or after a purported birth certificate was produced.

1. Claim dismissed. The claimant’s detention was not unlawful under the Secretary of State’s published policy.
2. The statutory power to detain under paragraph 16 of Schedule 2 to the Immigration Act 1971 was qualified by the published guidance. Applying R (Kambadzi) v Secretary of State for the Home Department, [2011] 1 WLR 1299, a failure to comply with a policy sufficiently connected to the power of detention could render detention unlawful in the absence of good reasons.
3. The relevant policy accepted a person claiming to be under 18 unless one of specified criteria applied. A local authority assessment could satisfy the requirement for a full Merton-compliant assessment even where the social workers considered the person obviously over 18 and therefore conducted no prolonged enquiry. Immigration officers were entitled to rely on such an assessment where it was certified as Merton-compliant and included short reasons.
4. The guidance in B v London Borough of Merton, [2003] EWHC 1689 (Admin), and subsequent authority required procedural safeguards except in clear cases. The observations in R (Z) v Croydon London Borough Council, [2011] EWCA Civ 59, concerning an appropriate adult did not establish that such attendance was an essential ingredient in every assessment.
5. The purported birth certificate and the claimant’s father’s letter did not automatically make continued detention unlawful. The policy contemplated review of relevant new evidence, but did not require immediate release where the document’s authenticity was uncertain and the evidence had been sent for further enquiry.
6. The court did not need to decide causation or damages. It stated, obiter, that if the detention had been unlawful because insufficient reasons had been obtained, the claimant would probably have been lawfully detained in any event and would have recovered no more than nominal damages.

The judgment records that permission to proceed with judicial review had been granted by a Deputy High Court Judge. The proceedings against Birmingham City Council were discontinued. No lower-court judgment under appeal is identified.