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

Whether a person is an “unaccompanied child” for the purposes of the immigration detention restrictions in Schedule 2 to the Immigration Act 1971 is an objective question of precedent fact. It is not determined by the reasonable belief of the immigration officer unless Parliament has made that intention clear. The wording of paragraph 18B(7), contrasted with the express reasonable-belief test in paragraph 18B(4), supports that conclusion. Difficulties in age assessment and the short detention period do not justify judicially rewriting the statutory definition. Where a local authority age assessment provides credible evidence that a detainee is a child, the Secretary of State must consider it promptly. Unjustified delay in releasing the detainee may make continued detention unlawful.

The claimant, a Sudanese child, sought a declaration and damages for false imprisonment arising from his detention under immigration powers. The Secretary of State accepted that detention from 27 February to 1 March 2015 was unlawful, but disputed liability for the earlier period.

The principal issue was whether “child” in paragraph 18B(7) of Schedule 2 to the Immigration Act 1971 meant a person objectively under 18 or a person whom the immigration officer reasonably believed to be under 18. A further, contingent issue concerned whether detention became unlawful when the Secretary of State received a local authority age assessment confirming that the claimant was a child.

1. Issue 1: The claim succeeded. The question whether the claimant was a “child” under paragraphs 16 and 18B of Schedule 2 to the Immigration Act 1971 was an objective question of precedent fact. The statutory definition was a “person who is under the age of 18”; it did not refer to the immigration officer’s reasonable belief.
2. The express reasonable-belief wording in paragraph 18B(4), concerning whether removal would occur within 24 hours, contrasted with the absence of equivalent wording in paragraph 18B(7). That difference indicated that Parliament had not made age depend on the officer’s belief. The court would not rewrite paragraph 18B(7) to insert such a requirement.
3. The protection of liberty supported an objective approach. Following the principles reflected in Khawaja v Secretary of State [1984] 1 AC 74 and R (A) v Croydon [2009] 1 WLR 2557, facts necessary to justify executive detention had to be established objectively. The decision in R (AA (Afghanistan)) v Secretary of State [2013] UKSC 49; [2013] 1 WLR 2224 concerned the different statutory scheme in section 55 of the Borders Citizenship and Immigration Act 2009 and did not displace the reasoning in Croydon.
4. The alleged practical difficulty and potential anomaly were insufficient. The court rejected judicial contortion of the statutory language and held that the need for careful age assessment did not alter the statutory test.
5. Issue 2: Even if detention had initially been lawful, it became unlawful when the local authority age assessment was received on 23 February 2015. Although some time for review was permissible, the evidence showed no careful consideration. The delay resulted from an inexperienced officer’s failure to refer the assessment to a senior colleague. Proper consideration should have led to release on the day of receipt. The claim therefore also succeeded on this alternative ground, with damages to be quantified on remission.

The judgment was a first-instance judicial review decision. Permission had been granted by Elisabeth Laing J on two issues concerning the lawfulness of the claimant’s detention.