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

Under Schedule 2 to the Immigration Act 1971, as amended, the restrictions on detaining an unaccompanied child depend on the detainee’s actual age. Detention exceeding the place and 24-hour limits in paragraph 18B is unlawful where the detainee is in fact under 18, even if officials reasonably believed the person to be an adult.

The amended provisions superseded the result reached under the former legislation in [2013] UKSC 49. Clear statutory language cannot be rewritten by reference to presumed legislative intention, administrative inconvenience or the difficulty of assessing age.

The claimant was an unaccompanied Sudanese asylum seeker. Immigration officers detained him from 17 February 2015 while reasonably believing that he was over 18. A local authority age assessment, supplied to the Home Office on 23 February, concluded that he was approximately 16 or 17. He was released on 1 March.

The High Court held in [2016] EWCH 1453 (Admin) that the entire period from 17 February to 1 March was unlawful and ordered damages to be assessed. The Secretary of State appealed only against the finding concerning 17 to 23 February.

The central issue was whether paragraphs 16(2A) and 18B of Schedule 2 to the Immigration Act 1971 made detention unlawful where the detainee was in fact a child, despite a reasonable assessment that the detainee was an adult.

1. Appeal dismissed. Paragraph 16(2) of Schedule 2 to the Immigration Act 1971 is expressly qualified by paragraph 16(2A), while paragraph 18(1) is similarly qualified by paragraph 18(1A). The power to detain is therefore subordinated to paragraph 18B.

2. Paragraph 18B applies where the detained person is an unaccompanied child. Its definition requires the person actually to be under 18. It contains no qualification based on reasonable belief or suspicion, although paragraph 18B(4) expressly uses a reasonable-belief criterion for a different matter. The place and duration requirements in paragraphs 18B(1) and (2) are mandatory.

3. The references to detention “under paragraph 16(2)” identify the statutory power being restricted. They do not import a preliminary, reasonable assessment that the person is an adult. Reading such an assessment into paragraph 18B would rewrite the definition enacted by Parliament.

4. The statutory landscape had materially changed since R (AA) (Afghanistan) v Secretary of State for the Home Department [2013] UKSC 49. That decision established that, under the former legislation, detention based on a reasonable but mistaken belief that the detainee was an adult did not itself breach section 55 of the Borders, Citizenship and Immigration Act 2009. The new, specific restrictions on detaining unaccompanied children superseded that outcome.

5. R (A) v Croydon London Borough Council [2009] UKSC 8 gave limited support to treating age as an objective fact. It concerned different legislation and was not determinative. The appeal instead turned on the clear language of the amended Schedule 2.

6. Administrative difficulty, the prospect of litigation and the absence of materials showing that Parliament actively intended the change could not displace unambiguous statutory language. The interpretation strengthened the protection of children and was neither senseless nor purposeless. A claimant seeking damages would ordinarily still have to prove that they were under 18 at the relevant time.

Davis LJ gave the leading judgment. Underhill and Lindblom LJJ agreed.

1. Court of Appeal (Civil Division): The Secretary of State’s appeal was dismissed. The court upheld the finding that the claimant’s detention from 17 to 23 February 2015 was unlawful: [2017] EWCA Civ 138.
2. High Court: Sir Stephen Silber held that the claimant had been unlawfully detained for the identified period, granted a declaration and ordered the Secretary of State to pay damages to be assessed: [2016] EWCH 1453 (Admin).