UK - High Court, 18 July 2007, S & Ors v Secretary of State for the Home Department [2007] EWHC 1654

Facts:

The applicant S was a Jamaican woman who had absconded after being temporarily admitted to the UK. At the time she was 18 years old and had a daughter C, who was 18 months old.  While she was living illegally in the UK, she gave birth to a second child D. C had been enrolled in nursery school and was due to begin school, when almost three years after she had absconded, S was arrested on suspicion of theft from a supermarket. During an interview by an Immigration Officer at a removal centre S claimed asylum and was then released. When she reported to the Immigration Service, with her children as requested, she and the children were taken to a detention centre for assessment of the claim under a ‘fast track’ procedure.

After 14 days, the application had been refused and certified as clearly unfounded. Further detention was authorised on the basis that there had been a decsion to deport the applicant and because it was considered that S would abscond with her children if they were all released.

During her detention S who was breastfeeding, expressed concerns that D was not eating properly and an appointment was made for all the family to see a doctor. The family did not attend. There was no contact with a health care professional for another four weeks. Evidence produced to the court showed that D had developed anaemia and rickets during his detention.  The family was released two days after they lodged a claim in the High Court. They claimed, amongst other things, that the policy on the detention of families was unlawful, that the detention from start to finish, a period of four months, had been illegal, either in its entirety or in part, and that the infant D’s Art 8 ECHR rights had been breached.  

Decision & reasoning:

Taking the claims one by one, the court concluded that given the general authority to detain from the case of Saadi, the question turned on whether there was a conflict between the State’s policy and Art 3 and Art 37 of the United Nations Convention on the Rights of the Child (UNCRC). There was a further submission that Art 5 of the ECHR was also engaged, which the court accepted, but relying on Saadi found to take the matter no further. The real question concerned the rights of the children and in the opinion of the court the relevant policy was not incompatible with Art 37 of the UNCRC insofar as Art 37 specified that detention should be used as a measure of last resort and for the shortest appropriate time and the policy mirrored these provisions, including the interests of the child being a primary consideration. The policy was found to be lawful.

At the time the UK had entered a reservation to UNCRC  which the court considered. The finding was that the reservation did not and was not intended permit the UK to legislate so as to remove or alter the provisions of the convention relating to the detention of children.

If the policy was lawful, was the detentionlawful. The court divided the periods of detention, beginning with the fourteen days during which the asylum claim was assessed and decided. This was within the accepted period in the policy (this is a shift from Saadi when detention was limited to  7 days). The court found that the first fourteen days of detention were lawful.

The  reasons for continued detention after asylum had been refused were focussed on the risk of S absconding with her children. The court considered her history, and in particular the ‘proper and sensible’ arrangements she had made for her daughter to attend a school, and concluded that there were not strong reasons for believing that S would not comply with any conditions of release and that there was no evidence that alternatives to detention had been properly explored. The two months detention following the initial detention was unlawful and an infringement of Art 5 of the ECHR.

The court went on to consider whether if the decision to maintain detention after the refusal of asylum was lawful whether the period during which S was held was reasonable. The period of two months, was held to be unreasonable and without sepcifying what would be reasonable the court indicated that it was bound to be “far less than two months”.

The mental state of S weighed in the court’s consideration of what was reasonable. Evidence that she was being watched carefully after reporting that she was considering suicide and that she was actively considering giving up her daughter for adoption was accepted and given weight. The court also considered the fact that there had been two attempts at removal, which failed through no fault of the applicants.

Detention beyond 28 days had been authorised by a government Minister, who had been told explicitly that there were no welfare concerns about C and D. That advice was inaccurate and detracted from the weight given to ministerial authorisation.

The family had been unlawfully detained after the first fourteen days.

The court having received medical evidence that the conditions D developed in detention were ‘predictable and preventable’, and having read the medical notes relating to D’s time in detention decided that D’s right to moral and physical integrity had been infringed (Art 8 of the ECHR). 

Outcome:

Declaration that the policy relating to the detention of children was lawful, part of the detention of the family was unlawful and that D’s Art 8 rights of the ECHR had been infringed.

Subsequent proceedings:

Damages for the unlawful detention and breach of Art 8 were determined at a later date. See ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4 (1  February 2011) (see separate summary in the database) for current UK position on the application of UNCRC.